EXHIBIT 10.4
THESE SECURITIES HAVE NOT BEEN REGISTERED
FOR OFFER OR SALE UNDER THE SECURITIES
ACT OF 1933 OR ANY STATE SECURITIES LAWS.
THEY MAY NOT BE SOLD OR OFFERED FOR
SALE EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT AND
ANY APPLICABLE STATE SECURITIES LAW OR AN
APPLICABLE EXEMPTION FROM SUCH
REGISTRATION REQUIREMENTS.
NOTE EXCHANGE AGREEMENT
NOTE EXCHANGE AGREEMENT (this "Agreement") dated as of July
29, 2004, by and among Liquidmetal
Technologies, Inc., a Delaware corporation
(the "Company"), and each person or entity
listed as a Noteholder on Schedule I
attached to this Agreement (collectively
and individually, the "Noteholders").
Capitalized terms used herein and not
otherwise defined shall have the meanings
set forth in the Exchange Notes (as defined
below).
W I T N E S S E T H:
WHEREAS, the Company sold and issued to the Noteholders 6%
Senior Convertible Notes in the aggregate
principal amount of approximately
three million United States dollars
("Dollars") ($3,000,000.00) (the "Original
Notes") pursuant to that certain Amended
and Restated Securities Purchase
Agreement, dated as of March 1, 2004, by
and among the Company and the
Noteholders (the "Purchase Agreement");
WHEREAS, each of the Noteholders owns an Original Note in the
principal amount set forth opposite such
Noteholder's name in Column 3 of
Schedule I attached hereto, and such
principal amount remains outstanding as of
the date of this Agreement;
WHEREAS, the Original Notes are convertible into shares
("Common Shares") of common stock, par
value $.001, of the Company ("Common
Stock"), pursuant to the terms of the
Original Notes, and the Noteholders were
granted registration rights with respect to
the Common Shares issuable upon
conversion of the Original Notes, pursuant
to the terms of that certain
Registration Rights Agreement dated March
1, 2004, entered into by and among the
Company and the Noteholders (the
"Registration Rights Agreement" and, together
with this Agreement, the Original Notes,
the Factory Mortgage Agreement (defined
below), and the Security Agreement (defined
below), the "Original Transaction
Documents");
WHEREAS, in connection with the Purchase Agreement, the
Company and the Noteholders have also
entered into a Factory Mortgage Agreement
dated March 1, 2004, pursuant to which
Michigan Venture Capital serves as agent
for the Noteholders (the "Factory Mortgage
Agreement"), and a Security Agreement
dated March 1, 2004, pursuant to which
Middlebury Capital LLC serves as agent
for the Noteholders (the "Security
Agreement").
WHEREAS, the Company and the Noteholders desire to exchange
the Original Notes (the "Exchange") for (A)
6% Senior Secured Notes due 2007 in
the form of Exhibit A attached hereto with
an aggregate principal amount equal
to fifty percent (50%) of the aggregate
principal of the outstanding Original
Notes (each a "3-Year Note," and
collectively, the "3-Year Notes"), and (B) 10%
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Senior Secured Notes due 2005 in the form
of Exhibit B attached hereto with an
aggregate principal amount equal to fifty
percent (50%) of the aggregate
principal of the outstanding Original Notes
(each a "1-Year Note," collectively,
the "1-Year Notes" and collectively with
the 3-Year Notes, the "Exchange
Notes"), all on the terms and conditions
set forth herein;
WHEREAS, in connection with the Exchange, the Company and the
Noteholders desire to amend certain of the
Original Transaction Documents, as
more particularly described herein; and
WHEREAS, each Noteholder's entire Original Note must be
exchanged in order to participate in the
Exchange.
NOW, THEREFORE, in consideration of the foregoing premises and
the covenants contained herein and other
good and valuable consideration, the
receipt and sufficiency of which are hereby
acknowledged, the parties hereby
agree as follows:
ARTICLE I
Exchange of Notes
-----------------
Section 1.1 Exchange of
Notes. Subject to the terms and conditions
contained herein, the Company shall issue
to the Noteholders the following in
exchange for the Original Notes being
exchanged by the Noteholders: (i) a 3-Year
Note with an aggregate principal amount set
forth opposite the Noteholder's name
in Column 4 of Schedule I attached hereto,
which equals fifty percent (50%) of
the principal of the Original Note being
exchanged by such Noteholder, and (ii)
a 1-Year Note with an aggregate principal
amount set forth opposite the
Noteholder's name in Column 5 of Schedule I
attached hereto, which equals fifty
percent (50%) of the principal of the
Original Note being exchanged by such
Noteholder.
Section 1.2 The Closing.
(a)
Timing. Subject to the fulfillment or waiver of the
conditions set forth in Article VIII
hereof, the purchase and sale of the
Exchange Notes shall take place at a
closing (the "Closing"), on or about the
date hereof or such other date as the
Noteholders and the Company may agree upon
(the "Closing Date"), provided that the
Closing Date shall be no later than July
29, 2004.
(b)
Form of Payment and Closing. On the Closing Date, the
Company shall deliver to each Noteholders
the Exchange Notes purchased
hereunder, registered in the name of the
Noteholder or its nominee. On the
Closing Date each Noteholder shall deliver
to the Company the original executed
Original Note being exchanged hereunder,
duly endorsed. In addition, each party
shall deliver all documents, instruments
and writings required to be delivered
by such party pursuant to this Agreement at
or prior to the Closing. The
Exchange Notes will be fully owned and paid
for by the Noteholders as of the
Closing Date.
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ARTICLE II
Representations and Warranties
------------------------------
Section 2.1 Representations
and Warranties of the Company. The
Company hereby makes the following
representations and warranties to the
Noteholders as of the date hereof and the
Closing Date:
(a)
Authorization; Enforcement. (i) The Company has all
requisite corporate power and authority to
enter into and perform this
Agreement, the Exchange Notes, and the
Original Transaction Documents as amended
pursuant to this Agreement (the
"Transaction Documents") and to issue the
Exchange Notes in accordance with the terms
hereof, (ii) the execution and
delivery of the Transaction Documents by
the Company and the consummation by it
of the transactions contemplated hereby and
thereby, including the issuance of
the Exchange Notes, have been duly
authorized by all necessary corporate action,
and no further consent or authorization of
the Company or its Board of Directors
(or any committee or subcommittee thereof)
or stockholders is required, (iii)
the Transaction Documents will have been
duly executed and delivered by the
Company as of the Closing, (iv) the
Transaction Documents constitute valid and
binding obligations of the Company
enforceable against the Company, except (A)
as such enforceability may be limited by
applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or
similar laws relating to, or
affecting generally the enforcement of
creditors' rights and remedies or by
other equitable principles of general
application, and (B) to the extent the
indemnification provisions contained in
this Agreement and the Registration
Rights Agreement, as amended, may be
limited by applicable federal or state
securities laws and (v) the Exchange Notes
and the Common Shares issuable upon
the conversion thereof, have been duly
authorized and, upon issuance thereof and
payment therefor in accordance with the
terms of this Agreement, will be validly
issued, fully paid and non-assessable, free
and clear of any and all liens,
claims and encumbrances.
(b)
Issuance of Shares. Upon issuance in accordance with
this Agreement and the terms of the
Exchange Notes, the Exchange Notes will be
validly issued, fully paid and
nonassessable and free from all taxes, liens and
charges with respect to the issue
thereof.
(c)
No Conflicts. The execution, delivery and performance of
the Transaction Documents by the Company
and the consummation by the Company of
the transactions contemplated hereby and
thereby and issuance of the Exchange
Notes and the Common Shares underlying the
Exchange Notes will not (i) result in
a violation of the Company's Certificate of
Incorporation, as amended and as in
effect on the date hereof (the "Certificate
of Incorporation"), any certificate
of designations, preferences and rights of
any outstanding series of preferred
stock of the Company or the Company's
By-laws, as in effect on the date hereof
(the "By-laws"); (ii) conflict with, or
constitute a default (or an event which
with notice or lapse of time or both would
become a default) under, or give to
others any rights of termination,
amendment, acceleration or cancellation of,
any agreement, indenture or instrument to
which the Company or any of its
subsidiaries is a party, or (iii) to the
Company's knowledge result in a
violation of any law, rule, regulation,
order, judgment or decree (including
United States federal and state securities
laws and regulations applicable to
the Company or any of its subsidiaries or
by which any property or asset of the
Company or any of its subsidiaries is bound
or affected, except in the case of
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clause (ii), such conflicts that would not
have a Material Adverse Effect.
"Material Adverse Effect" means any adverse
effect on the business, operations,
properties, prospects or financial
condition of the Company and its
subsidiaries, if any, and which is (either
alone or together with all other
adverse effects) material to the Company
and its subsidiaries, if any, taken as
a whole, and any material adverse effect on
the transactions contemplated under
this Agreement, the Note, and the
Registration Rights Agreement.
(d)
Disclosure. No representation or warranty by the Company
in this Agreement, nor in any certificate,
Schedule or Exhibit delivered or to
be delivered pursuant to this Agreement:
contains or will contain any untrue
statement of material fact or omits or will
omit to state a material fact
necessary to make the statements contained
herein or therein not misleading.
(e)
Issuance of Common Shares. The Common Shares are duly
authorized and reserved for issuance and,
upon conversion of the Exchange Notes
in accordance with the terms thereof, such
Common Shares will be validly issued,
fully paid and non-assessable, free and
clear of any and all liens, claims and
encumbrances, and the holders of such
Common Shares shall be entitled to all
rights and preferences accorded to a holder
of Common Stock.
(f)
Representations and Warranties in Purchase Agreement.
Subject to the Supplemental Disclosure
Schedule attached to this Agreement and
incorporated herein by this reference, the
representations and warranties set
forth in Article II of the Purchase
Agreement shall continue to remain in full
force and effect as though made on the date
of this Agreement, and nothing in
this Agreement shall limit or otherwise
amend or alter such representations and
warranties.
Section 2.2 Representations
and Warranties of the Noteholders. Each
of the Noteholders hereby makes the
following representations and warranties to
the Company as of the date hereof and the
Closing Date:
(a)
Accredited Investor Status; Sophisticated Purchaser. The
Noteholder is an "accredited investor" as
that term is defined in Rule 501(a) of
Regulation D under the Securities Act of
1933, as amended ("Securities Act" or
"1933 Act"). The Noteholder has such
knowledge and experience in financial and
business matters that it is capable of
evaluating the merits and risks of the
purchase of the Exchange Notes and the
Common Shares. The Noteholder is not
registered as a broker or dealer under
Section 15(a) of the 1934 Act, affiliated
with any broker or dealer registered under
Section 15(a) of the 1934 Act, or a
member of the National Association of
Securities Dealers, Inc.
(b)
Information. The Noteholder and its advisors, if any,
have been furnished with all materials
relating to the business, finances and
operations of the Company which have been
requested and materials relating to
the offer and sale of the Exchange Notes
and the Common Shares which have been
requested by the Noteholder. The Noteholder
and its advisors, if any, have been
afforded the opportunity to ask questions
of the Company. In determining whether
to enter into this Agreement and purchase
the Exchange Notes, the Noteholder has
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relied solely on the written information
supplied by Company employees in
response to the written due diligence
information request provided by the
Noteholder to the Company, and the
Noteholder has not received nor relied upon
any oral representation or warranty
relating to the Company, this Agreement, the
Exchange Notes, or any of the transactions
or relationships contemplated
thereby. The Noteholder understands that
its purchase of the Exchange Notes and
Common Shares involves a high degree of
risk. The Noteholder has sought such
accounting, legal and tax advice as it has
considered necessary to make an
informed investment decision with respect
to its acquisition of the Exchange
Notes and Common Shares.
(c)
No Governmental Review. The Noteholder understands that
no United States federal or state agency or
any other government or governmental
agency has passed on or made any
recommendation or endorsement of the Exchange
Notes or the Common Shares or the fairness
or suitability of the investment in
the Exchange Notes and the Common Shares
nor have such authorities passed upon
or endorsed the merits thereof.
(d)
Legends. The Company shall issue the Exchange Notes and
certificates for the Common Shares to the
Noteholder without any legend except
as described in Article IX below. The
Noteholder covenants that, in connection
with any transfer of Common Shares by the
Noteholder pursuant to the
registration statement contemplated by the
Registration Rights Agreement, as
amended, it will comply with the applicable
prospectus delivery requirements of
the 1933 Act, provided that copies of a
current prospectus relating to such
effective registration statement are or
have been supplied to the Noteholder.
(e)
Authorization; Enforcement. This Agreement has been duly
and validly authorized, executed and
delivered on behalf of the Noteholder and
is a valid and binding agreement of the
Noteholder enforceable against the
Noteholder in accordance with their terms,
subject as to enforceability to
general principles of equity and to
applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and
other similar laws relating to, or
affecting generally, the enforcement of
applicable creditors' rights and
remedies. The Noteholder has the requisite
corporate power and authority to
enter into and perform its obligations
under this Agreement and each other
agreement entered into by the parties
hereto in connection with the transactions
contemplated by this Agreement.
(f)
No Conflicts. The execution, delivery and performance of
this Agreement by the Noteholder and the
consummation by the Noteholder of the
transactions contemplated hereby and
thereby will not (i) result in a violation
of the certificate of incorporation,
by-laws or other documents of organization
of the Noteholder, (ii) conflict with, or
constitute a default (or an event
which with notice or lapse of time or both
would become a default) under, or
give others any rights of termination,
amendment, acceleration or cancellation
of, any agreement, indenture or instrument
to which the Noteholder is bound, or
(iii) result in a violation of any law,
rule, regulation or decree applicable to
the Noteholder.
(g)
Investment Representation. The Noteholder is purchasing
the Exchange Notes for its own account and
not with a view to distribution in
violation of any securities laws. The
Noteholder has been advised and
understands that neither the Exchange Notes
nor the Common Shares issuable upon
conversion thereof have been registered
under the 1933 Act or under the "blue
sky" laws of any jurisdiction and may be
resold only if registered pursuant to
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the provisions of the 1933 Act or if an
exemption from registration is
available, except under circumstances where
neither such registration nor such
an exemption is required by law. The
Noteholder has been advised and understands
that the Company, in issuing the Exchange
Notes, is relying upon, among other
things, the representations and warranties
of the Noteholder contained in this
Section 2.2 in concluding that such
issuance is a "private offering" and is
exempt from the registration provisions of
the 1933 Act.
(h)
Rule 144. The Noteholder understands that there is no
public trading market for the Exchange
Notes, that none is expected to develop,
and that the Exchange Notes must be held
indefinitely unless and until such
Exchange Notes, or if applicable, the
Common Shares received upon conversion
thereof are registered under the 1933 Act
or an exemption from registration is
available. The Noteholder has been advised
or is aware of the provisions of Rule
144 promulgated under the 1933 Act.
(i)
Brokers. The Noteholder has taken no action which would
give rise to any claim by any person for
brokerage commissions, finder's fees or
similar payments by the Company or the
Noteholder relating to this Agreement or
the transactions contemplated hereby.
(j)
Reliance by the Company. The Noteholder understands that
the Exchange Notes are being offered and
sold in reliance on a transactional
exemption from the registration
requirements of Federal and state securities
laws and that the Company is relying upon
the truth and accuracy of the
representations, warranties, agreements,
acknowledgments and understandings of
the Noteholder set forth herein in order to
determine the applicability of such
exemptions and the suitability of the
Noteholder to acquire the Exchange Notes
and the Common Shares issuable upon
conversion thereof.
ARTICLE III
Covenants
---------
Section 3.1 Registration and
Listing; Effective Registration. Until
such time as the Exchange Notes are not
outstanding, the Company will cause the
Common Stock to continue at all times to be
registered under Sections 12(b) or
(g) of the 1934 Act, will comply in all
material respects with its reporting and
filing obligations under the 1934 Act, and
will not take any action or file any
document (whether or not permitted by the
1934 Act or the rules thereunder) to
terminate or suspend such reporting and
filing obligations. Until such time as
the Exchange Notes are not outstanding, the
Company shall use its best efforts
to cause the Common Stock to be listed or
quoted on the Nasdaq National Market
System, Nasdaq Small Cap Market, New York
Stock Exchange, American Stock
Exchange, or OTC Bulletin Board (the
"Approved Markets") and shall comply in all
material respects with the Company's
reporting, filing and other obligations
under the bylaws or rules of the Approved
Market on which the Common Stock is
listed or quoted. The Company shall use its
best efforts to cause the Common
Shares to be listed or quoted on one of the
Approved Markets no later than the
effectiveness of the registration of the
Common Shares under the 1934 Act, and
shall use its best efforts to continue such
listing(s) or quotation on one of
the Approved Markets, for so long as the
Exchange Notes are outstanding.
Notwithstanding the foregoing, the
Noteholders acknowledge that the Company is
not as of the date hereof in compliance
with its reporting and filing
obligations under the Exchange Act and that
the Company shall not be in breach
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of this Agreement as a result of this
noncompliance so long as the Company
regains compliance with such obligations
within one hundred twenty (120) days
after the date of Closing.
Section 3.2 Certificates on
Conversion. Upon any conversion by the
Noteholder (or then holder of the Exchange
Notes) of the Exchange Notes pursuant
to the terms thereof, the Company shall
issue and deliver to the Noteholder (or
holder) within three (3) Trading Days of
the conversion date a new Exchange Note
or Exchange Notes for the aggregate
principal amount of Exchange Notes which the
Noteholder (or holder) has not yet elected
to convert but which are evidenced in
part by the Exchange Notes submitted to the
Company in connection with such
conversion (with the denominations of such
new Exchange Note(s) designated by
the Noteholder or holder). As used herein,
"Trading Day" shall mean a day on
which there is trading on the exchange or
quotation service on which the Common
Stock is then principally traded or
quoted.
Section 3.3 Replacement
Notes. The Exchange Note held by the
Noteholder (or then holder) may be
exchanged by the Noteholder (or such holder)
at any time and from time to time for
Exchange Note(s) with different
denominations representing an equal
aggregate principal amount of Exchange
Note(s), as requested by the Noteholder (or
such holder) upon surrendering the
same. No service charge will be made for
such registration or transfer or
exchange.
Section 3.4 Securities
Compliance. The Company shall notify the
Securities and Exchange Commission, in
accordance with its requirements, of the
transactions contemplated by this
Agreement, the Note, and the Registration
Rights Agreement, as amended, and shall
take all other necessary action and
proceedings as may be required and
permitted by applicable law, rule and
regulation, for the legal and valid
issuance of the Exchange Notes hereunder and
the Common Shares issuable upon conversion
or exercise thereof.
Section 3.5 Notices. The
Company agrees to provide all holders of
Exchange Notes with copies of all notices
and information, including without
limitation, notices and proxy statements in
connection with any meetings that
are provided to the holders of shares of
Common Stock, contemporaneously with
the delivery of such notices or information
to such Common Stock holders.
Section 3.6 Reservation of
Shares; Stock Issuable Upon Conversion.
The Company shall at all times reserve and
keep available out of its authorized
but unissued shares of Common Stock, solely
for the purpose of effecting the
conversion of the Exchange Notes, such
number of its shares of Common Stock as
shall from time to time be sufficient to
effect the conversion of the Exchange
Notes.
Section 3.7 Best Efforts.
The parties shall use their best efforts
to satisfy timely each of the conditions
described in Article VIII of this
Agreement.
Section 3.8 Form D; Blue Sky
Laws. The Company agrees to file a Form
D with respect to the Exchange Notes and
Common Stock, in accordance with
Regulation D and to provide a copy thereof
to the Noteholders promptly after
such filing. The Company shall, on or
before the Closing Date, take such action
as the Company shall have reasonably
determined is necessary to qualify the
Exchange Notes the Common Shares for sale
to the Noteholders under applicable
securities or "blue sky" laws of the states
of the United States (or to obtain
an exemption from such qualification), and
shall provide evidence of any such
action so taken to the Noteholders on or
prior to the Closing Date; provided,
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however, that the Company shall not be
required in connection therewith to
register or qualify as a foreign
corporation in any jurisdiction where it is not
now so qualified or to take any action that
would subject it to service of
process in suits or taxation, in each case,
in any jurisdiction where it is not
now so subject.
Section 3.9 Information. The
Company agrees to send to the
Noteholders for so long as the Exchange
Notes are outstanding copies of any
notices and other information made
available or given to the stockholders of the
Company generally, contemporaneously with
the making available or giving thereof
to the stockholders.
Section 3.10 Prohibition on Net
Short Positions. From and including
the date of this Agreement, each Noteholder
agrees that such Noteholder shall
not maintain a Net Short Position. "Net
Short Position" shall mean that the
aggregate number of shares of Common Stock
held in a short position by such
Noteholder exceeds the sum of (i) the
number of shares of Common Stock owned by
such Noteholder, plus (ii) the number of
Common Shares issuable to such
Noteholder.
Section 3.11 Prohibition on Certain
Actions. The Company shall not,
between the date hereof and the Closing
Date (both dates inclusive), take any
action or decision which (had the Exchange
Notes already been issued) would
result in an adjustment of the Conversion
Price (as defined in the Exchange
Notes).
Section 3.12 Senior Status of
Notes. Beginning on the date of this
Agreement and for so long as any Exchange
Notes remain outstanding, neither the
Company nor any subsidiary of the Company
shall, without the prior written
consent of Noteholders holding a majority
of the aggregate outstanding Principal
Amount of the Exchange Notes, incur or
otherwise become liable with respect to
any indebtedness that would rank senior or
pari passu to the Exchange Notes in
order of payment, other than (i)
indebtedness in existence on the date hereof,
(ii) secured indebtedness used solely to
finance the purchase or lease of assets
(provided that such debt may only be
secured by the purchased or leased assets
and not by any other assets of the
Company), (iii) any indebtedness from any
loan that replaces or refinances the
Company's existing credit facility with
Kookmin Bank, (iv) indebtedness to trade
creditors in the ordinary course of
business, or (v) any new notes (the "New
Middelbury Notes") issued by the
Company simultaneously herewith or at any
time hereafter in exchange for the 6%
Senior Convertible Notes issued by the
Company pursuant to that certain
Securities Purchase Agreement, dated March
1, 2004, among the Company, and the
investors identified as "Purchasers"
therein and for which Middlebury Capital
LLC acted as placement agent (the "Old
Middlebury Notes").
"Effective
Registration" shall mean that all registration
obligations of the Company pursuant to the
Registration Rights Agreement, as
amended, have been satisfied and (i) such
Registration Statement is not subject
to any suspension or stop orders; (ii) the
resale of such Registrable Securities
may be effected pursuant to a current and
deliverable prospectus; (iii) the
requisite number of shares of Common Stock
shall have been duly authorized and
reserved for issuance as required by the
terms of the Transaction Documents;
(iv) no Interfering Event (as described in
the Registration Rights Agreement, as
amended) then exists; (v) the Registrable
Securities shall have been duly
qualified or exempt under all state "blue
sky" laws; and (viii) none of the
Company or any direct or indirect
subsidiary of the Company is subject to any
Bankruptcy Event (as defined below).
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"Bankruptcy Event" means any of the following events: (a) the
Company or any subsidiary commences a case
or other proceeding under any
bankruptcy, reorganization, arrangement,
adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or
similar law of any jurisdiction
relating to the Company or any subsidiary
thereof; (b) there is commenced
against the Company or any subsidiary any
such case or proceeding that is not
dismissed within 30 days after
commencement; (c) the Company or any subsidiary
is adjudicated insolvent or bankrupt or any
order of relief or other order
approving any such case or proceeding is
entered; (d) the Company or any
subsidiary suffers any appointment of any
custodian or the like for it or any
substantial part of its property that is
not discharged or stayed within 30
days; (e) the Company or any subsidiary
makes a general assignment for the
benefit of creditors; (f) the Company or
any subsidiary, by any act or failure
to act, expressly indicates its consent to,
approval of or acquiescence in any
of the foregoing or takes any corporate or
other action for the purpose of
effecting any of the foregoing.
Section 3.13 Replacement of
Purchase Agreement Covenants. The parties
hereto acknowledge and agree that that the
covenants set forth in this Article
III shall supplant and replace in their
entirety the covenants set forth in
Article III of the Purchase Agreement,
which covenants shall no longer have any
force or effect as of the Closing.
ARTICLE IV
Transfer Agent Instructions
---------------------------
The Company shall issue irrevocable instructions to its
transfer agent, and any subsequent transfer
agent, to issue certificates,
registered in the name of the respective
Noteholder or its respective
nominee(s), for the Common Shares in such
amounts as specified from time to time
by the Noteholder to the Company upon
delivery of a conversion or exercise
notice (the "Irrevocable Transfer Agent
Instructions"). The Company warrants
that no instruction relating to the Common
Shares other than the Irrevocable
Transfer Agent Instructions referred to in
this Article IV will be given by the
Company to its transfer agent and that the
Common Shares shall be freely
transferable on the books and records of
the Company as contemplated by Article
IX below when the legend referred to
therein may be removed. Nothing in this
Article IV shall affect in any way the
Noteholders' obligations and agreements
set forth in Section 2.2(d) to comply with
all applicable prospectus delivery
requirements, if any, upon resale of the
Common Shares. The Company shall
instruct its transfer agent to issue one or
more certificates in such name and
in such denominations as specified by the
Noteholders and without any
restrictive legends except as contemplated
by Article IX.
ARTICLE V
Amendment of Registration Rights Agreement
------------------------------------------
Section 5.1 Amendment.
(a)
The first Recital of the Registration Rights Agreement
is hereby amended to reflect that (i) the
definition of "Purchase Agreement"
thereunder shall include each of the
Purchase Agreement and this Agreement, and
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(ii) the definition of "Note" thereunder
shall collectively mean the Exchange
Notes.
(b)
Section 2(a)(i) of the Registration Rights Agreement is
hereby deleted in its entirety and replaced
with the following:
(i) But in any event by ninety (90) days after the Closing
Date prepare and file a registration statement with the
Commission pursuant to Rule 415 under the Securities Act on
Form S-3 under the Securities Act (or in the event that the
Company is ineligible to use such form, such other form as the
Company is eligible to use under the Securities Act provided
that such other form shall be converted into an S-3 as soon as
Form S-3 becomes available to the Company) covering resales by
the Holders as selling stockholders (not underwriters) of the
Registrable Securities ("Registration Statement"), which
Registration Statement, to the extent allowable under the
Securities Act and the rules promulgated thereunder (including
Rule 416), shall state that such Registration Statement also
covers such indeterminate number of additional shares of
Common Stock as may become issuable upon conversion of the
Note. The number of shares of Common Stock initially included
in such Registration Statement shall be no less than the sum
of 1.5 times the sum of the number of Common Shares that are
issuable upon conversion of the Note as of the date of this
Agreement, at the then applicable Conversion Price (as defined
in the Note). Thereafter the Company shall use its best
efforts to cause such Registration Statement and other filings
to be declared effective as soon as possible, and in any event
no later than the following date, as appropriate (the
"Required Effective Date"): (A), if the SEC notifies that the
Company that the SEC will not review the Registration
Statement, the Required Effective Date shall be five (5) days
after the SEC provides such notification, or (B) if the SEC
notifies the Company that it will review the Registration
Statement, then the Required Effective Date shall be sixty
(60) days after the Company receives the first written
comments on the Registration Statement from the SEC. Without
limiting the foregoing, the Company will promptly respond to
all SEC comments, inquiries and requests, and shall request
acceleration of effectiveness at the earliest possible date.
The Purchasers acknowledge that, as of the date hereof, the
Company is not eligible to utilize Form S-3 and does not
expect to be eligible to utilize Form S-3 at the time of the
filing of the Registration Statement, and the inability to
utilize Form S-3 shall
not constitute a breach of this
Agreement.
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(c)
Section 2(c)(i) of the Registration Rights Agreement is
hereby deleted in its entirety and replaced
with the following:
(i) Payments by the Company. If (i) at any time after
effectiveness of the Registration Statement, sales thereunder
during the registration period (as described in Section 5)
cannot be made for any reason, other than by reason of the
operation of Section 2(b), for a period of more than 10
consecutive business days, (ii) at any time after
effectiveness of the Registration Statement, sales thereunder
during the Registration Period cannot be made for a period of
time that exceeds the limitations set forth in Section 2(b),
or (iii) at any time after the Registrable Securities are
listed in accordance with Section 2(a)(viii), the Common
Shares are not listed or included for quotation on the Nasdaq
National Market or other exchange, market, or the OTC Bulletin
Board where shares of the Company's common stock are then
traded or quoted for more than 10 consecutive calendar days,
then the Company will thereafter make a payment to each Holder
as set forth below. The amount of the payment made to each
Holder will be equal to 1% of the purchase price paid for the
Notes purchased by the Holder and not previously converted
into Common Shares and sold by the Holder for each 30 business
days that sales cannot be made under the effective
Registration Statement or the Common Shares are not listed or
included for quotation on the Nasdaq National Market or other
exchange, market, or the OTC Bulletin Board where shares of
the Company's common stock are then traded or quoted (but any
day on which both conditions exist shall count as a single day
and no day taken into account for purposes of determining
whether any payment is due under Section 2 (c)(ii) shall be
taken into account for purposes of determining whether any
payment is due under this Section 2(c)(i) or the amount of
such payment). The number of shares not previously sold as
specified in the previous sentence shall be determined as of
the end of the respective 30-business day period. In no event
shall payment pursuant to this Section exceed 10% in the
aggregate of the purchase price paid for the Notes purchased
by the Holder (including such Holder's predecessors and
successors) for the entire registration period (as described
in Section 5). These payments will be prorated on a daily
basis during the 30-business day period and will be paid to
each Holder within ten business days following the end of each
30- business day period as to which payment is due hereunder
or, at the Company's option, will be added to the outstanding
Principal Amount of the Notes, provided that the respective
Holder delivered to the Company at least two business days
prior thereto information with respect to the number of Notes
and Common Shares not previously sold by such Holder (together
with reasonable supporting documentation). The Holders may
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<PAGE>
make a claim for additional damages as a remedy for the
Company's failure to comply with the timelines set forth in
this Section, but acknowledgement of such right in this
Agreement shall not constitute an admission by the Company
that any such damages exist or may exist. Notwithstanding the
foregoing, if the Company has used its best efforts to avoid
circumstances as a result of which sales cannot be made under
the Registration Statement during the Registration Period or
the Common Shares are not listed or included for quotation on
the Nasdaq National Market or other exchange, market, or the
OTC Bulletin Board where the Common Shares are traded or
quoted, then the damages described above shall be the Holders'
sole and exclusive remedy for damages arising out of such
circumstances. Nothing contained in the preceding sentence
shall be read to limit the ability of the Holders to seek
specific performance of this Agreement.
(d)
Section 2(c)(ii) of the Registration Rights Agreement is
hereby deleted in its entirety and replaced
with the following:
(ii)
Effect of Late Registration. If the Registration
Statement has not been declared effective by the Required
Effective Date other than by reason of the operation of
Section 2(b), then the Company will make a payment to each
Holder for such delay (each a "Late Registration Payment").
Each Late Registration Payment will be equal to 2% of the
purchase price paid for the Notes purchased by such Holder and
not previously sold (or converted into Common Shares and sold)
by such Holder for the first 30 business days after the
Required Effective Date, and 1% of such purchase price for
each period of 30
business days thereafter (but no day taken
into account for purposes of determining whether any payment
is due under Section 2(c)(i) shall be taken into account for
purposes of determining whether any payment is due under this
Section 2(c)(ii) or the amount of such payment). In no event
shall payments pursuant to this Section exceed 10% in the
aggregate of the purchase price paid for the Notes purchased
by the Holder (including such Holder's predecessors and
successors) for the period beginning of the date hereof and
continuing through the expiration of the registration period
(as described in Section 5). The Late Registration Payments
will be prorated on a daily basis during the 30-business day
period and will be paid to the initial Holders or, at the
Company's option, will be added to the outstanding Principal
Amount of the Notes, within ten business days following the
end of each 30-business day period as to which payment is due
hereunder, provided that the respective Holder delivered to
the Company at least two business days prior thereto
12
<PAGE>
information with respect to the number of Notes and Common
Shares not previously sold by such Holder (together with
reasonable supporting documentation). The Holders may make a
claim for additional damages as a remedy for the Company's
failure to comply with the timelines set forth in this
Section, but acknowledgement of such right in this Agreement
shall not constitute an admission by the Company that any such
damages exist or may exist. Notwithstanding the foregoing, if
the Company has used its reasonable best efforts to avoid
circumstances as a result of which the Registration Statement
has not been filed by the Required Filing Date or declared
effective by the Required Effective Date, then the damages
described above shall be the Holders' sole and exclusive
remedy for damages arising out of such circumstances. Nothing
contained in the preceding sentence shall be read to limit the
ability of the Holders to seek specific performance of this
Agreement. Notwithstanding the foregoing, if the Registration
Statement has not yet been declared effective and the Holders
are no longer entitled to receive Late Registration Payments
as a result of the above-described percentage limitation on
said payments, then each Holder shall have the right, at any
time upon at least thirty (30) days written notice, to sell
all (but not less than all) of its Notes to the Company for a
cash purchase price equal to the outstanding Principal Amount
of the
Notes plus any accrued but unpaid interest.
Section 5.2 Ratification.
Except as specifically amended and
modified by this Article V, the
Registration Rights Agreement shall remain in
full force and effect and is hereby
reaffirmed and ratified.
ARTICLE VI
Amendment of Security Agreement
-------------------------------
Section 6.1 Amendment. The
definition of "Obligations" in Section 2
of the Security Agreement is hereby amended
to reflect that the definition of
"Note" thereunder shall collectively mean
the Exchange Notes and the New
Middlebury Notes, and the definition of
"Michigan Note" thereunder shall
collectively mean the New Michigan
Notes.
Section 6.2 Ratification.
Except as specifically amended and
modified by this Article VI, the Security
Agreement shall remain in full force
and effect and is hereby reaffirmed and
ratified.
ARTICLE VII
Amendment to Factory Mortgage Agreement
---------------------------------------
Section 7.1 Amendment.
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(a)
Section 6(f) of the Factory Mortgage Agreement is hereby
deleted in its entirety and replaced with
the following:
(i)
The Mortgagor has not agreed, and will not agree
to sell, assign, transfer or create any
security, interest, lien or other
encumbrance in or over all or any part of
the Mortgaged Property other than the
Priority Mortgage; provided, however,
Mortgagor may grant a lien in the
Mortgaged Property to secure the New
Middlbury Notes (defined below), which such
lien shall be equal in rank to the lien
created under this Agreement; provided
further, that the Mortgagor shall be
permitted to sell all or any part of the
Mortgaged Property free and clear of the
mortgage created hereunder to an
unrelated third-party in an arm's length
transaction for a valid business
purpose (in which case, the Mortgagee
shall, at the request of the Mortgagor and
at the Mortgagor's cost and expense,
deregister the Factory Mortgage from the
relevant registry office and take such
other action as may be reasonably
requested by the Mortgagor to effectuate
the release of the Factory Mortgage).
For purposes hereof, "New Middlbury Notes"
shall mean any senior convertible
notes of Liquidmetal that are issued in
exchange for the 6% Senior Convertible
Notes of Liquidmetal issued pursuant to the
Securities Purchase Agreement, dated
March 1, 2004, among Liquidmetal and the
"Purchasers" identified therein and for
which Middlebury Capital LLC acted as
placement agent.
(b)
The definition of "Secured Obligations" in Section 1.2
of the Factory Mortgage Agreement is hereby
amended to reflect that the
definition of "Note" thereunder shall
collectively mean the Exchange Notes, and
the definition of "Securities Purchase
Agreement" shall mean this Note Exchange
Agreement
Section 7.2 Ratification.
Except as specifically amended and
modified by this Article VI, the Security
Agreement shall remain in full force
and effect and is hereby reaffirmed and
ratified.
ARTICLE VIII
Conditions to Closings
----------------------
Section 8.1 Conditions
Precedent to the Obligation of the Company.
The obligation hereunder of the Company to
issue the Exchange Notes and the
other Transaction Documents to the
Noteholders at the applicable Closing is
subject to the satisfaction, at or before
the applicable Closing, of each of the
applicable conditions set forth below.
These conditions are for the Company's
sole benefit and may be waived by the
Company at any time in its sole
discretion.
(a)
Accuracy of the Noteholders' Representations and
Warranties. The representations and
warranties of each Noteholder will be true
and correct in all material respects as of
the date when made and as of the
Closing Date, as though made at that
time.
(b)
Performance by the Noteholders. The Noteholders shall
have performed all agreements and satisfied
all conditions required to be
performed or satisfied by the Noteholders
at or prior to the Closing, including
fully delivering to the Company all of the
Original Notes owned by the
Noteholders, duly endorsed.
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(c)
No Injunction. No statute, rule, regulation, executive
order, decree, ruling or injunction shall
have been enacted, entered,
promulgated or endorsed by any court or
governmental authority of competent
jurisdiction which prohibits the
consummation of any of the transactions
contemplated by this Agreement, the
Registration Rights Agreement, as amended,
or the Exchange Notes.
(d)
Certificate. The Noteholders shall have delivered a
certificate to the Company certifying that
the representations and warranties of
the Noteholders contained in are true and
correct in all material respects as of
the Closing Date.
(e)
Final Board Approval. The Company's Board of Directors,
or any authorized committee thereof, shall
have given final approval to this
Agreement and the instruments, documents,
and agreements contemplated hereby.
(f)
Closing Date. The Closing shall have occurred by July
29, 2004.
Section 8.2 Conditions
Precedent to the Obligation of the
Noteholders. The obligation hereunder of
the Noteholders to acquire the Exchange
Notes at the applicable Closing is subject
to the satisfaction, at or before the
applicable Closing, of each of the
applicable conditions set forth below. These
conditions are for the Noteholder's benefit
and may be waived by the
Noteholders' at any time in their sole
discretion.
(a)
Accuracy of the Company's Representations and
Warranties. The representations and
warranties of the Company shall be true and
correct in all material respects as of the
date when made and as of the Closing
Date as though made at that time (except
for representations and warranties as
of an earlier date, which shall be true and
correct in all material respects as
of such date).
(b)
No Injunction. No statute, rule, regulation, executive
order, decree, ruling or injunction shall
have been enacted, entered,
promulgated or endorsed by any court or
governmental authority of competent
jurisdiction which prohibits the
consummation of any of the transactions
contemplated by this Agreement, the
Registration Rights Agreement, as amended,
or the Exchange Notes.
(c)
Officer's Certificates. The Company shall have delivered
to the Noteholders a certificate in form
and substance satisfactory to the
Noteholders and the Noteholders' counsel,
executed by an officer of the Company,
certifying as to satisfaction of closing
conditions, incumbency of signing
officers, and the true, correct and
complete nature of the Certificate of
Incorporation, By-Laws, good standing and
authorizing resolutions of the
Company.
ARTICLE IX
Legend and Stock
----------------
Upon exchange therefor as provided in this Agreement, the
Company will issue the Exchange Notes in
the name of the respective Noteholder
or its designees and in such denominations
to be specified by the Noteholder
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<PAGE>
prior to (or from time to time subsequent
to) Closing. The Exchange Notes and
any certificate representing Common Shares
issued upon conversion thereof, prior
to such Common Shares being registered
under the 1933 Act for resale or
available for resale under Rule 144 under
the 1933 Act, shall be stamped or
otherwise imprinted with a legend in
substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED FOR OFFER OR SALE
UNDER THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAWS. THEY MAY NOT BE
SOLD OR OFFERED FOR SALE EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT
UNDER SAID ACT AND ANY APPLICABLE STATE
SECURITIES LAW OR AN APPLICABLE
EXEMPTION FROM SUCH REGISTRATION
REQUIREMENTS.
The Company agrees to reissue the Exchange Notes and Common
Shares issuable upon conversion or exercise
of the foregoing, without the legend
set forth above, at such time as (i) the
holder thereof is permitted to dispose
of such Exchange Notes and Common Shares
issuable upon conversion thereof
pursuant to Rule 144(k) under the 1933 Act,
or (ii) such securities are sold to
a purchaser or purchasers who (in the
opinion of counsel to the seller or such
purchaser(s), in form and substance
reasonably satisfactory to the Company and
its counsel) are able to dispose of such
shares publicly without registration
under the 1933 Act, or (iii) such
securities have been registered under the 1933
Act.
Prior to the Registration Statement (as defined in the
Registration Rights Agreement, as amended)
being declared effective, any Common
Shares issued pursuant to conversion of the
Exchange Notes shall bear a legend
in the same form as the legend indicated
above; provided that such legend shall
be removed from such shares and the Company
shall issue new certificates without
such legend if (i) the holder has sold or
disposed of such shares pursuant to
Rule 144(k) under the 1933 Act, or the
holder is permitted to dispose of such
shares pursuant to Rule 144(k) under the
1933 Act, (ii) such shares are
registered for resale under the 1933 Act,
or (iii) such shares are sold to a
purchaser or purchasers who (in the opinion
of counsel to the seller or such
purchaser(s), in form and substance
reasonably satisfactory to the Company and
its counsel) are able to dispose of such
shares publicly without registration
under the 1933 Act. Upon such Registration
Statement becoming effective, the
Company agrees to promptly issue new
certificates representing such shares
without such legend. Any Common Shares
issued after the Registration Statement
has become effective shall be free and
clear of any legends, transfer
restrictions and stop orders.
Notwithstanding the removal of such legend, the
Noteholders agrees to sell the Common
Shares represented by the new certificates
in accordance with the applicable
prospectus delivery requirements (if copies of
a current prospectus are provided to the
Noteholders by the Company) or in
accordance with an exemption from the
registration requirements of the 1933 Act.
Nothing herein shall limit the right of any holder to pledge
these securities pursuant to a bona fide
margin account or lending arrangement
entered into in compliance with law,
including applicable securities laws.
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<PAGE>
ARTICLE X
Release and Waiver
------------------
In exchange to the agreements and covenants of the Company
hereunder, each of the Noteholders, on
behalf of himself/herself and his/her
agents, assigns, heirs, devisees, and
successors, releases and forever
discharges the Company, its agents,
officers, directors, shareholders,
employees, attorneys, and representatives,
from any and all claims, causes of
action, suits, debts, liabilities, damages
and expenses (including attorneys'
fees and costs) of any type whatsoever
(collectively, "Claims"), whether known
or unknown, that any of the Noteholders
have or may have or may have at any time
through the date hereof, under the Original
Notes or the other Original
Transaction Documents, including without
limitation (i) any Event of Default
under the Original Notes or the Purchase
Agreement, or (ii) any breach under the
Registration Rights Agreement.
ARTICLE XI
Termination
-----------
Section 11.1 Termination by Mutual
Consent. This
Agreement may be
terminated at any time prior to the Closing
by the mutual written consent of the
Company and the Noteholders.
Section 11.2 Other Termination.
This Agreement may be terminated by
action of the Board of Directors of the
Company or by the Noteholders at any
time if the Closing shall not have been
consummated on the Closing Date;
provided, however, that the party (or
parties) prepared to close shall retain
its (or their) right to sue for any breach
by the other party (or parties).
ARTICLE XII
Indemnification
---------------
In consideration of the Noteholders' execution and delivery of
the this Agreement and acquiring the
Exchange Notes hereunder and in addition to
all of the Company's other obligations
under the Transaction Documents, the
Company shall defend, protect, indemnify
and hold harmless the Noteholders and
all of their partners, officers, directors,
employees, members and direct or
indirect investors and any of the foregoing
person's agents or other
representatives (including, without
limitation, those retained in connection
with the transactions contemplated by this
Agreement) (collectively, the
"Indemnitees") from and against any and all
actions, causes of action, suits,
claims, losses, costs, penalties, fees,
liabilities and damages, and expenses in
connection therewith (irrespective of
whether any such Indemnitee is a party to
the action for which indemnification
hereunder is sought), and including
reasonable attorneys' fees and
disbursements (the "Indemnified Liabilities"),
incurred by any Indemnitee as a result of,
or arising out of, or relating to (a)
any misrepresentation or breach of any
representation or warranty made by the
Company in the Transaction Documents or any
other certificate or document
contemplated hereby or thereby, (b) any
breach of any covenant, agreement or
obligation of the Company contained in the
Transaction Documents or any other
certificate or document contemplated hereby
or thereby. Notwithstanding the
foregoing, Indemnified Liabilities shall
not include any liability of any
17
<PAGE>
Indemnitee arising out of such Indemnitee's
negligence. To the extent that the
foregoing undertaking by the Company may be
unenforceable for any reason, the
Company shall make the maximum contribution
to the payment and satisfaction of
each of the Indemnified Liabilities which
is permissible under applicable law.
Except as otherwise set forth herein, the
mechanics and procedures with respect
to the rights and obligations under this
Article XII shall be the same as those
set forth in Section 6 (other than Section
6(b)) of the Registration Rights
Agreement, as amended, including, without
limitation, those procedures with
respect to the settlement of claims and
Company's right to assume the defense of
claims.
ARTICLE XIII
Governing Law; Miscellaneous
----------------------------
Section 13.1 Governing Law. THIS
AGREEMENT SHALL BE GOVERNED BY AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF CALIFORNIA WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF
LAWS. EACH PARTY HEREBY IRREVOCABLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF
THE STATE AND FEDERAL COURTS SITTING IN
ORANGE COUNTY, CALIFORNIA, FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR WITH ANY TRANSACTION
CONTEMPLATED HEREBY OR DISCUSSED
HEREIN, AND HEREBY IRREVOCABLY WAIVES, AND
AGREES NOT TO ASSERT IN ANY SUIT,
ACTION OR PROCEEDING, ANY CLAIM THAT IT IS
NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF ANY SUCH COURT, THAT SUCH
SUIT, ACTION OR PROCEEDING IS BROUGHT
IN AN INCONVENIENT FORUM OR THAT THE VENUE
OF SUCH SUIT, ACTION OR PROCEEDING IS
IMPROPER. EACH PARTY HEREBY IRREVOCABLY
WAIVES PERSONAL SERVICE OF PROCESS AND
CONSENTS TO PROCESS BEING SERVED IN ANY
SUCH SUIT, ACTION OR PROCEEDING BY
MAILING A COPY THEREOF TO SUCH PARTY AT THE
ADDRESS FOR SUCH NOTICES TO IT UNDER
THIS AGREEMENT BY CERTIFIED OR REGISTERED
MAIL (RETURN RECEIPT REQUESTED) AND
AGREES THAT SUCH SERVICE SHALL CONSTITUTE
GOOD AND SUFFICIENT SERVICE OF PROCESS
AND NOTICE THEREOF. NOTHING CONTAINED
HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY
ANY RIGHT TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW. IF ANY PROVISION OF
THIS AGREEMENT SHALL BE INVALID OR
UNENFORCEABLE IN ANY JURISDICTION, SUCH
INVALIDITY OR UNENFORCEABILITY SHALL NOT
AFFECT THE VALIDITY OR ENFORCEABILITY
OF THE REMAINDER OF THIS AGREEMENT IN THAT
JURISDICTION OR THE VALIDITY OR
ENFORCEABILITY OF ANY PROVISION OF THIS
AGREEMENT IN ANY OTHER JURISDICTION.
EACH PARTY HERETO IRREVOCABLY WAIVES ANY
RIGHT TO TRIAL BY JURY.
Section 13.2 Counterparts. This
Agreement may be executed in two or
more identical counterparts, all of which
shall be considered one and the same
agreement and shall become effective when
counterparts have been signed by each
party and delivered to the other party;
provided that a facsimile signature
shall be considered due execution and shall
be binding upon the signatory
thereto with the same force and effect as
if the signature were an original, not
a facsimile signature.
Section 13.3 Headings. The headings
of this Agreement are for
convenience of reference and shall not form
part of, or affect the
interpretation of, this Agreement.
18
<PAGE>
Section 13.4 Severability. If any
provision of this Agreement shall
be invalid or unenforceable in any
jurisdiction, such invalidity or
unenforceability shall not affect the
validity or enforceability of the
remainder of this Agreement in that
jurisdiction or the validity or
enforceability of any provision of this
Agreement in any other jurisdiction.
Section 13.5 Costs and Expenses.
All actual reasonable out-of-pocket
costs and expenses the Noteholders incur
with respect to this Agreement and the
transactions contemplated by this Agreement
shall be paid by the Company to the
Noteholders at the Closing up to an
aggregate maximum of $10,000.00.
Section 13.6 Entire Agreement;
Amendments; Waivers.
(a)
This Agreement supersedes all other prior oral or
written agreements between the Noteholders,
the Company, their affiliates and
persons acting on their behalf with respect
to the matters discussed herein, and
this Agreement and the instruments
referenced herein (including the other
Transaction Documents) contain the entire
understanding of the parties with
respect to the matters covered herein and
therein and, except as specifically
set forth herein or therein, neither the
Company nor the Noteholders makes any
representation, warranty, covenant or
undertaking with respect to such matters.
No provision of this Agreement may be
amended other than by an instrument in
writing signed by the Company and the
Noteholders, and no provision hereof may
be waived other than by an instrument in
writing signed by the party against
whom enforcement is sought.
(b)
The Noteholders may at any time elect, by notice to the
Company, to waive (whether permanently or
temporarily, and subject to such
conditions, if any, as the Noteholders may
specify in such notice) any of its
rights under any of the Transaction
Documents to acquire shares of Common Stock
from the Company, in which event such
waiver shall be binding against the
Noteholders in accordance with its terms;
provided, however, that the voluntary
waiver contemplated by this sentence may
not reduce the Noteholders' obligations
to the Company under the Transaction
Documents.
Section 13.7 Notices. Any notices,
consents, waivers or other
communications required or permitted to be
given under the terms of this
Agreement must be in writing, must be
delivered by (i) courier, mail or hand
delivery or (ii) facsimile, and will be
deemed to have been delivered upon
receipt. The addresses and facsimile
numbers for such communications shall be:
If to the Company:
Liquidmetal Technologies, Inc.
25800 Commercentre Dr., Sui