EXHIBIT 10.10
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER REGULATION D PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). THIS WARRANT SHALL NOT CONSTITUTE AN OFFER
TO SELL NOR A SOLICITATION OF AN OFFER TO BUY THE SECURITIES IN ANY JURISDICTION
IN WHICH SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL. THE SECURITIES ARE
"RESTRICTED" AND MAY NOT BE RESOLD OR TRANSFERRED EXCEPT AS PERMITTED UNDER THE
ACT PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
PLACEMENT AGENT COMMON STOCK PURCHASE WARRANT
To Purchase Shares of $0.001 Par Value Common Stock ("Common Stock") of
LIQUIDMETAL TECHNOLOGIES, INC.
THIS CERTIFIES that, for value received, MIDDLEBURY CAPITAL LLC (the
"PURCHASER" or "HOLDER") is entitled, upon the terms and subject to the
conditions hereinafter set forth, at any time on or after the date hereof and on
or prior to 8:00 p.m. New York City Time on the date that is one hundred (100)
calendar days after the first date that a Company registration statement
including the Common Stock underlying this Warrant is declared effective by the
SEC (the "TERMINATION DATE"), but not thereafter, to subscribe for and purchase
from Liquidmetal Technologies, Inc., a Delaware corporation (the "COMPANY"),
161,561 shares of Common Stock (the "WARRANT SHARES") at an Exercise Price equal
to $3.00 per share (as adjusted from time to time pursuant to the terms hereof,
the "EXERCISE PRICE"). The Exercise Price and the number of shares for which the
Warrant is exercisable shall be subject to adjustment as provided herein. This
Warrant is being issued in connection with the Placement Agency Agreement dated
March 1, 2004 (the "PURCHASE AGREEMENT"), entered into between the Company and
the Purchaser. Capitalized terms used herein and not otherwise defined shall
have the meaning ascribed thereto in the Purchase Agreement.
1. Title of Warrant. Prior to the expiration hereof and subject to
compliance with applicable laws, this Warrant and all rights hereunder
are transferable, in whole or in part, at the office or agency of the
Company by the Holder hereof in person or by duly authorized attorney,
upon surrender of this Warrant together with (a) the Assignment Form
annexed hereto properly endorsed, and (b) any other documentation
reasonably necessary to satisfy the Company that such transfer is in
compliance with all applicable securities laws. The term "HOLDER" shall
refer to the Purchaser or any subsequent transferee of this Warrant.
2. Authorization of Shares. The Company covenants that all shares of
Common Stock which may be issued upon the exercise of rights
represented by this Warrant will, upon exercise of the rights
represented by this Warrant and payment of the Exercise Price as set
forth herein will be duly authorized, validly issued, fully paid and
nonassessable and free
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from all taxes, liens and charges in respect of the issue thereof
(other than taxes in respect of any transfer occurring
contemporaneously with such issue or otherwise specified herein).
3. Exercise of Warrant.
(a) (i) The Holder may exercise this Warrant, in whole or in part, at any
time and from time to time, by delivering (which may be by facsimile)
to the offices of the Company or any transfer agent for the Common
Stock this Warrant, together with a Notice of Exercise in the form
annexed hereto specifying the number of Warrant Shares with respect to
which this Warrant is being exercised, together with payment in cash to
the Company of the Exercise Price therefor.
(ii) by the exchange of this Warrant in whole or in part (with the
Cashless Exercise subscription form in the form annexed hereto duly
executed) (a "CASHLESS EXERCISE") at the address of the Company set
forth herein. Such presentation and exchange shall be deemed a waiver
of the Holder's obligation to pay the Exercise Price or, in the case of
a partial exercise of this Warrant, of the portion of the Exercise
Price that would otherwise be payable in connection with such partial
exercise. Upon presentment of this Warrant in connection with a
Cashless Exercise, the number of Warrant Shares subject to this Warrant
shall be reduced by the number of Warrant Shares specified on the
Cashless Exercise subscription form, and in exchange for such reduction
the Holder shall receive the number of Warrant Shares, as the case may
be, specified on the Cashless Exercise subscription form (up to the
total number of Warrant Shares which are subject to this Warrant)
multiplied by a fraction, the numerator of which shall be the
difference between the then current market price per share of the
Common Stock and the Exercise Price per share, and the denominator of
which shall be the then current market price per share of Common Stock.
For purposes of any computation under this Section 2(a), the then
current market price shall be the closing price on the trading day
immediately prior to the execution of the Cashless Exercise
subscription form by Holder.
In the event that the Warrant is not exercised in full, the number of
Warrant Shares shall be reduced by the number of such Warrant Shares
for which this Warrant is exercised and/or surrendered, and the
Company, if requested by Holder and at its expense, shall within three
(3) Trading Days (as defined below) issue and deliver to the Holder a
new Warrant of like tenor in the name of the Holder or as the Holder
(upon payment by Holder of any applicable transfer taxes) may request,
reflecting such adjusted Warrant Shares. Notwithstanding anything to
the contrary set forth herein, upon exercise of any portion of this
Warrant in accordance with the terms hereof, the Holder shall not be
required to physically surrender this Warrant to the Company unless
such Holder is purchasing the full amount of Warrant Shares represented
by this Warrant. The Holder and the Company shall maintain records
showing the number of Warrant Shares so purchased hereunder and the
dates of such purchases or shall use such other method, reasonably
satisfactory to the Holder and the Company, so as not to require
physical surrender of this Warrant upon each such exercise. The Holder
and any assignee, by
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acceptance of this Warrant or a new Warrant, acknowledge and agree
that, by reason of the provisions of this Section, following exercise
of any portion of this Warrant, the number of Warrant Shares which may
be purchased upon exercise of this Warrant may be less than the number
of Warrant Shares set forth on the face hereof
Certificates for shares of Common Stock purchased hereunder shall be
delivered to the Holder hereof within three (3) Trading Days after the
date on which this Warrant shall have been exercised as aforesaid. The
Holder may withdraw its Notice of Exercise at any time if the Company
fails to timely deliver the relevant certificates to the Holder as
provided in this Agreement. A Notice of Exercise shall be deemed sent
on the date of delivery if delivered before 8:00 p.m. New York Time on
such date, or the day following such date if delivered after 8:00 p.m.
New York Time; provided that the Company is only obligated to deliver
Warrant Shares against delivery of the Exercise Price from the holder
hereof and surrender of this Warrant (or appropriate affidavit and/or
indemnity in lieu thereof).
In lieu of delivering physical certificates representing the Warrant
Shares issuable upon conversion of this Warrant, provided the Company's
transfer agent is participating in the Depository Trust Company ("DTC")
Fast Automated Securities Transfer ("FAST") program, upon request of
the Holder, the Company shall use its best efforts to cause its
transfer agent to electronically transmit the Warrant Shares issuable
upon exercise to the Holder, by crediting the account of the Holder's
prime broker with DTC through its Deposit Withdrawal Agent Commission
("DWAC") system. The time periods for delivery described above shall
apply to the electronic transmittals through the DWAC system. The
Company agrees to coordinate with DTC to accomplish this objective.
(b) The term "TRADING DAY" means (x) if the Common Stock is not listed on
the New York or American Stock Exchange but sale prices of the Common
Stock are reported on Nasdaq National Market or another automated
quotation system, a day on which trading is reported on the principal
automated quotation system on which sales of the Common Stock are
reported, (y) if the Common Stock is listed on the New York Stock
Exchange or the American Stock Exchange, a day on which there is
trading on such stock exchange, or (z) if the foregoing provisions are
inapplicable, a day on which quotations are reported by National
Quotation Bureau Incorporated.
4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of
this Warrant. In lieu of issuance of a fractional share upon any
exercise hereunder, the Company will either round up to nearest whole
number of shares or pay the cash value of that fractional share, which
cash value shall be calculated on the basis of the average closing
price of the Common Stock during the five (5) Trading Days immediately
preceding the date of exercise.
5. Charges, Taxes and Expenses. Issuance of certificates for shares of
Common Stock upon the exercise of this Warrant shall be made without
charge to the Holder hereof for any issue or transfer tax or other
incidental expense in respect of the issuance of such certificate, all
of which taxes and expenses shall be paid by the Company, and such
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certificates shall be issued in the name of the Holder of this Warrant
or in such name or names as may be directed by the Holder of this
Warrant; provided, however, that in the event certificates for shares
of Common Stock are to be issued in a name other than the name of the
Holder of this Warrant, this Warrant when surrendered for exercise
shall be accompanied by the Assignment Form attached hereto duly
executed by the Holder hereof; and provided further, that the Company
shall not be required to pay any tax or taxes which may be payable in
respect of any transfer involved in the issuance of any Warrant
certificates or any certificates for the Warrant Shares other than the
issuance of a Warrant Certificate to the Holder in connection with the
Holder's surrender of a Warrant Certificate upon the exercise of all or
less than all of the Warrants evidenced thereby.
6. Closing of Books. The Company will at no time close its shareholder
books or records in any manner which interferes with the timely
exercise of this Warrant.
7. No Rights as Shareholder until Exercise. Subject to Section 12 of this
Warrant and the provisions of any other written agreement between the
Company and the Purchaser, the Purchaser shall not be entitled to vote
or receive dividends or be deemed the holder of Warrant Shares or any
other securities of the Company that may at any time be issuable on the
exercise hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Purchaser, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate action
(whether upon any recapitalization, issuance of stock, reclassification
of stock, change of par value, or change of stock to no par value,
consolidation, merger, conveyance or otherwise) or to receive notice of
meetings, or to receive dividends or subscription rights or otherwise
until the Warrant shall have been exercised as provided herein.
However, at the time of the exercise of this Warrant pursuant to
Section 3 hereof, the Warrant Shares so purchased hereunder shall be
deemed to be issued to such Holder as the record owner of such shares
as of the close of business on the date on which this Warrant shall
have been exercised.
8. Assignment and Transfer of Warrant. This Warrant may be assigned by the
surrender of this Warrant and the Assignment Form annexed hereto duly
executed at the office of the Company (or such other office or agency
of the Company or its transfer agent as the Company may designate by
notice in writing to the registered Holder hereof at the address of
such Holder appearing on the books of the Company); provided, however,
that this Warrant may not be resold or otherwise transferred except (i)
in a transaction registered under the Securities Act of 1933, as
amended (the "ACT"), or (ii) in a transaction pursuant to an exemption,
if available, from registration under the Act and whereby, if
reasonably requested by the Company, an opinion of counsel reasonably
satisfactory to the Company is obtained by the Holder of this Warrant
to the effect that the transaction is so exempt.
9. Loss, Theft, Destruction or Mutilation of Warrant; Exchange. The
Company represents warrants and covenants that (a) upon receipt by the
Company of evidence and/or indemnity reasonably satisfactory to it of
the loss, theft, destruction or mutilation of any
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Warrant or stock certificate representing the Warrant Shares, and in
case of loss, theft or destruction, of indemnity reasonably
satisfactory to it, and (b) upon surrender and cancellation of such
Warrant or stock certificate, if mutilated, the Company will make and
deliver a new Warrant or stock certificate of like tenor and dated as
of such cancellation, in lieu of this Warrant or stock certificate,
without any charge therefor. This Warrant is exchangeable at any time
for an equal aggregate number of Warrants of different denominations,
as requested by the holder surrendering the same, or in such
denominations as may be requested by the Holder following determination
of the Exercise Price. No service charge will be made for such
registration or transfer, exchange or reissuance.
10. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the
taking of any action or the expiration of any right required or granted
herein shall be a Saturday, Sunday or a legal holiday, then such action
may be taken or such right may be exercised on the next succeeding day
not a legal holiday.
11. Effect of Certain Events. If at any time while this Warrant or any
portion thereof is outstanding and unexpired there shall be a
transaction (by merger or otherwise) in which more than 50% of the
voting power of the Company is disposed of (collectively, a "SALE OR
MERGER TRANSACTION"), the Holder of this Warrant shall have the right
thereafter to purchase, by exercise of this Warrant and payment of the
aggregate Exercise Price in effect immediately prior to such action,
the kind and amount of shares and other securities and property which
it would have owned or have been entitled to receive after the
happening of such transaction had this Warrant been exercised
immediately prior thereto, subject to further adjustment as provided in
Section 12.
12. Adjustments of Exercise Price and Number of Warrant Shares.
The number of and kind of securities purchasable upon exercise of this
Warrant and the Exercise Price shall be subject to adjustment from time
to time as set forth in this Section 12.
(a) Subdivisions, Combinations, Stock Dividends and other Issuances. If the
Company shall, at any time while this Warrant is outstanding, (A) pay a
stock dividend or otherwise make a distribution or distributions on any
equity securities (including instruments or securities convertible into
or exchangeable for such equity securities) in shares of Common Stock,
(B) subdivide outstanding shares of Common Stock into a larger number
of shares, or (C) combine outstanding Common Stock into a smaller
number of shares, then the Exercise Price shall be multiplied by a
fraction, the numerator of which shall be the number of shares of
Common Stock outstanding before such event and the denominator of which
shall be the number of shares of Common Stock outstanding after such
event. Any adjustment made pursuant to this Section 12(a) shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution and
shall become effective immediately after the effective date in the case
of a subdivision or combination. The number of shares which may be
purchased hereunder shall be increased proportionately to any reduction
in Exercise Price
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pursuant to this paragraph 12(a), so that after such adjustments the
aggregate Exercise Price payable hereunder for the increased number of
shares shall be the same as the aggregate Exercise Price in effect just
prior to such adjustments.
(b) Other Distributions. If at any time after the date hereof the Company
distributes to holders of its Common Stock, other than as part of its
dissolution, liquidation or the winding up of its affairs, any shares
of its capital stock, any evidence of indebtedness or any of its assets
(other than Common Stock), then the number of Warrant Shares for which
this Warrant is exercisable shall be increased to equal: (i) the number
of Warrant Shares for which this Warrant is exercisable immediately
prior to such event, (ii) multiplied by a fraction, (A) the numerator
of which shall be the Fair Market Value (as defined below) per share of
Common Stock on the record date for the dividend or distribution, and
(B) the denominator of which shall be the Fair Market Value price per
share of Common Stock on the record date for the dividend or
distribution minus the amount allocable to one share of Common Stock of
the value (as jointly determined in good faith by the Board of
Directors of the Company and the Holder) of any and all such evidences
of indebtedness, shares of capital stock, other securities or property,
so distributed. For purposes of this Warrant, "FAIR MARKET VALUE" shall
equal the average closing trading price of the Common Stock on the
Principal Market (as defined in the Purchase Agreement) for the 5
Trading Days preceding the date of determination or, if the Common
Stock is not listed or admitted to trading on any Principal Market, and
the average price cannot be determined as contemplated above, the Fair
Market Value of the Common Stock shall be as reasonably determined in
good faith by the Company's Board of Directors and the Holder. The
Exercise Price shall be reduced to equal: (i) the Exercise Price in
effect immediately before the occurrence of any event (ii) multiplied
by a fraction, (A) the numerator of which is the number of Warrant
Shares for which this Warrant is exercisable immediately before the
adjustment, and (B) the denominator of which is the number of Warrant
Shares for which this Warrant is exercisable immediately after the
adjustment.
(c) Merger, etc. If at any time after the date hereof there shall be a
merger or consolidation of the Company with or into or a transfer of
all or substantially all of the assets of the Company to another
entity, then the Holder shall be entitled to receive upon or after such
transfer, merger or consolidation becoming effective, and upon payment
of the Exercise Price then in effect, the number of shares or other
securities or property of the Company or of the successor corporation
resulting from such merger or consolidation, which would have been
received by the Holder for the shares of stock subject to this Warrant
had this Warrant been exercised just prior to such transfer, merger or
consolidation becoming effective or to the applicable record date
thereof, as the case may be. The Company will not merge or consolidate
with or into any other corporation, or sell or otherwise transfer its
property, assets and business substantially as an entirety to another
corporation, unless the corporation resulting from such merger or
consolidation (if not the Company), or such transferee corporation, as
the case may be, shall expressly assume in writing the due and punctual
performance and observance of each and every covenant and condition of
this Warrant to be performed and observed by the Company.
Page 7
(d) Reclassification, etc. If at any time after the date hereof there shall
be a reorganization or reclassification of the securities as to which
purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes, then the Holder
shall thereafter be entitled to receive upon exercise of this Warrant,
during the period specified herein and upon payment of the Exercise
Price then in effect, the number of shares or other securities or
property resulting from such reorganization or reclassification, which
would have been received by the Holder for the shares of stock subject
to this Warrant had this Warrant at such time been exercised.
(e) Exercise Price Adjustment. In the event that on or subsequent to the
Closing Date, the Company issues or sells any Common Stock, any
securities which are convertible into or exchangeable for its Common
Stock or any convertible securities, or any warrants or other rights to
subscribe for or to purchase or any options for the purchase of its
Common Stock or any such convertible securities (other than (i) shares
which are issued pursuant to the Note, (ii) shares of Common Stock or
options to purchase such shares issued to employees, consultants,
officers or directors in accordance with stock plans approved by the
Board of Directors, and shares of Common Stock issuable under options
or warrants that are outstanding as of the date of the Purchase
Agreement, (iii) shares of Common Stock issued pursuant to a stock
dividend, split or other similar transaction, (iv) shares of Common
Stock issued to Growell Metal Co., Ltd. pursuant to the Settlement
Agreement, dated on or about January 10, 2004, between Growell Metal
Co., Ltd. and the Company's South Korean subsidiary, and (v) shares of
Common Stock that are issued in lieu of cash in the payment of interest
under the Notes issued pursuant to the Purchase Agreement) at an
effective price per share which is less than the Exercise Price, then
the Exercise Price in effect immediately prior to such issue or sale
shall be reduced effective concurrently with such issue or sale to an
amount determined by multiplying the Exercise Price then in effect by a
fraction, (x) the numerator of which shall be the sum of (1) the number
of shares of Common Stock outstanding immediately prior to such issue
or sale, plus (2) the number of shares of Common Stock which the
aggregate consideration received by the Company for such additional
shares would purchase at the Exercise Price then in effect; and (y) the
denominator of which shall be the number of shares of Common Stock of
the Company outstanding immediately after such issue or sale.
For the purposes of the foregoing adjustments, in the case of the
issuance of any convertible securities, warrants, options or other
rights to subscribe for or to purchase or exchange for, shares of
Common Stock ("CONVERTIBLE SECURITIES"), the maximum number of shares
of Common Stock issuable upon exercise, exchange or conversion of such
Convertible Securities shall be deemed to be outstanding, provided that
no further adjustment shall be made upon the actual issuance of Common
Stock upon exercise, exchange or conversion of such Convertible
Securities.
(f) In the event of any adjustment in the number of Warrant Shares issuable
hereunder upon exercise, the Exercise Price shall be inversely
proportionately increased or decreased as the case may be, such that
aggregate purchase price for Warrant Shares upon full exercise of this
Warrant shall remain the same. Similarly, in the event of any
adjustment in the Exercise Price, the number of Warrant Shares issuable
hereunder upon exercise shall be
Page 8
inversely proportionately increased or decreased as the case may be,
such that aggregate purchase price for Warrant Shares upon full
exercise of this Warrant shall remain the same.
13. Voluntary Adjustment by the Company. The Company may at its option, at
any time during the term of this Warrant, reduce but not increase the
then current Exercise Price to any amount and for any period of time
deemed appropriate by the Board of Directors of the Company.
14. Notice of Adjustment. Whenever the number of Warrant Shares or number
or kind of securities or other property purchasable upon the exercise
of this Warrant or the Exercise Price is adjusted, the Company shall
promptly mail to the Holder of this Warrant a notice setting forth the
number of Warrant Shares (and other securities or property) purchasable
upon the exercise of this Warrant and the Exercise Price of such
Warrant Shares after such adjustment and setting forth the computation
of such adjustment and a brief statement of the facts requiring such
adjustment.
15. Authorized Shares. The Company covenants that during the period the
Warrant is outstanding and exercisable, it will reserve from its
authorized and unissued Common Stock a sufficient number of shares to
provide for the issuance of the Warrant Shares upon the exercise of any
and all purchase rights under this Warrant. The Company further
covenants that its issuance of this Warrant shall constitute full
authority to its officers who are charged with the duty of executing
stock certificates to execute and issue the necessary certificates for
the Warrant Shares upon the exercise of the purchase rights under this
Warrant. The Company will take all such reasonable action as may be
necessary to assure that such Warrant Shares may be issued as provided
herein without violation of any applicable law, regulation, or rule of
any applicable market or exchange.
16. 19.9% Limitations.
Notwithstanding anything contained herein to the contrary, the number
of shares of Common Stock issuable by the Company and acquirable by the
Holder of this Warrant, together with the number of shares issuable
pursuant to the Notes, the Michigan Notes, the warrants granted
pursuant to the Purchase Agreement, and the warrants granted in
connection with the Michigan Notes, shall not exceed 19.9% of the
number of shares of Common Stock outstanding on the Closing Date,
subject to appropriate adjustment for stock splits, stock dividends, or
other similar recapitalizations affecting the Common Stock (the
"MAXIMUM COMMON STOCK ISSUANCE"), unless the issuance of shares
hereunder in excess of the Maximum Common Stock Issuance shall first be
approved by the Company's shareholders in accordance with applicable
law and the By-laws and Articles of Incorporation of the Company.
17. Compliance with Securities Laws. (a) The Holder hereof acknowledges
that the Warrant Shares acquired upon the exercise of this Warrant, if
not registered (or if no exemption from registration exists), will have
restrictions upon resale imposed by state and federal securities laws.
Each certificate representing the Warrant Shares issued to the Holder
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upon exercise (if not registered, for resale or otherwise, or if no
exemption from registration exists) will bear substantially the
following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED, TRANSFERRED, SOLD OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR
IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
(b) Without limiting the Purchaser's right to transfer, assign or otherwise
convey the Warrant or Warrant Shares in compliance with all applicable
securities laws, the Holder of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the Warrant Shares to be issued upon
exercise hereof are being acquired solely for the Purchaser's own
account and not as a nominee for any other party, and that the
Purchaser will not offer, sell or otherwise dispose of this Warrant or
any Warrant Shares to be issued upon exercise hereof except under
circumstances that will not result in a violation of applicable federal
and state securities laws.
18. Miscellaneous.
(a) Issue Date; Choice of Law; Venue; Jurisdiction. The provisions of this
Warrant shall be construed and shall be given effect in all respects as
if it had been issued and delivered by the Company on the date hereof.
This Warrant shall be binding upon any successors or assigns of the
Company. This Warrant will be construed and enforced in accordance with
and governed by the laws of the State of California, except for matters
arising under the Act, without reference to principles of conflicts of
law. Each of the parties consents to the exclusive jurisdiction of the
Federal and State Courts sitting in the County of New York in the State
of New York in connection with any dispute arising under this Warrant
and hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on forum non conveniens or
venue, to the bringing of any such proceeding in such jurisdiction.
EACH PARTY HERETO WAIVES THE RIGHT TO A TRIAL BY JURY.
(b) Modification and Waiver. This Warrant and any provisions hereof may be
changed, waived, discharged or terminated only by an instrument in
writing signed by the party against which enforcement of the same is
sought. Any amendment effected in accordance with this paragraph shall
be binding upon the Purchaser, each future holder of this Warrant and
the Company. No waivers of, or exceptions to, any term, condition or
provision of this Warrant, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver of any
such term, condition or provision.
Page 10
(c) Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing by facsimile, mail or personal
delivery and shall be effective upon actual receipt of such notice. The
addresses for such communications shall be to the addresses as shown on
the books of the Company or to the Company at the address set forth in
the Purchase Agreement. A party may from time to time change the
address to which notices to it are to be delivered or mailed hereunder
by notice in accordance with the provisions of this Section 18(c).
(d) Severability. Whenever possible, each provision of this Warrant shall
be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant is held to be
invalid, illegal or unenforceable in any respect under any applicable
law or rule in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect the validity, legality or
enforceability of any other provision of this Warrant in such
jurisdiction or affect the validity, legality or enforceability of any
provision in any other jurisdiction, but this Warrant shall be
reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained
herein.
(f) Specific Enforcement. The Company and the Holder acknowledge and agree
that irreparable damage would occur in the event that any of the
provisions of this Warrant were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to an injunction or injunctions to
prevent or cure breaches of the provisions of this Warrant and to
enforce specifically the terms and provisions hereof, this being in
addition to any other remedy to which either of them may be entitled by
law or equity.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officers thereunto duly authorized.
Dated: March 1, 2004
LIQUIDMETAL TECHNOLOGIES, Inc.
By: ______________________________
John Kang,
President and Chief Executive Officer
ATTEST:
__________________________
Print Name:
NOTICE OF EXERCISE
To: Liquidmetal Technologies, Inc.
(1) The undersigned hereby elects to exercise the attached Warrant for and
to purchase thereunder, ______ shares of Common Stock, and herewith makes
payment therefor of $_______.
(2) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
_______________________________
(Name)
_______________________________
(Address)
_______________________________
(3) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned or in such other name as is specified
below:
_______________________________
(Name)
__________________________ _______________________________
(Date) (Signature)
_______________________________
(Address)
Dated:
_______________________________
Signature
NOTICE OF CASHLESS EXERCISE
SUBSCRIPTION (CASHLESS EXERCISE)
To: Liquidmetal Technologies, Inc.
The undersigned Holder ___________________, pursuant to the provisions of the
Warrant, hereby elects to exchange its Warrant, in whole or in part, as
appropriate, for ______ shares of Common Stock, stated value $___ per share, of
the Company, pursuant to the cashless exercise provisions of Section 3(a)(ii) of
the Warrant.
(2) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
________________________________
(Name)
________________________________
(Address)
________________________________
(3) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned or in such other name as is specified
below:
________________________________
(Name)
__________________________ ________________________________
(Date) (Signature)
________________________________
(Address)
Dated:
________________________________
Signature
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
_______________________________________________ whose address is
_______________________________________________________________________.
________________________________________________________________________
Dated: ______________,
Holder's Signature: _____________________________
Holder's Address: _____________________________
_____________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.