EXHIBIT 10.19
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER STATE
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN VIOLATION OF SUCH
ACT OR LAW OR THE PROVISIONS OF THIS WARRANT.
WARRANT FOR PURCHASE
OF
SHARES OF COMMON STOCK
OF
LIQUIDMETAL TECHNOLOGIES
For value received, ▇▇▇▇ ▇▇▇▇▇ SONG ("Holder"), is entitled to purchase
from LIQUIDMETAL TECHNOLOGIES, a California corporation (the "Company"), that
amount of fully paid and nonassessable shares of the Company's Common Stock, as
set forth in Section 2.3 hereof, pursuant to and subject to the terms and
conditions set forth in this Warrant.
This Warrant is subject to the following provisions, terms and
conditions.
1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the
following terms have the following respective meanings:
"Common Stock" shall mean the Company's Common Stock.
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Exercise Date" shall mean the date on which this Warrant is exercised.
"Exercise Period" shall mean the period commencing on the date of this
Warrant and terminating on December 31, 2005.
"Exercise Price" per share of Common Stock shall mean Fifteen Dollars
($15).
"Expiration Date" shall mean the last day of the Exercise Period.
"Restricted Stock" shall mean the shares of Common Stock of the Company
issued upon the exercise of this Warrant and evidenced by a certificate required
to bear the legend specified in Section 9.2.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Underlying Shares" shall mean the aggregate number of shares of Common
Stock issuable upon exercise of this Warrant, as set forth in Section 2.3 to
this Warrant, and as adjusted pursuant to Section 3 of this Warrant.
2. Exercise of Warrant.
2.1 Exercise Generally. Subject to the conditions hereinafter set
forth, this Warrant is exercisable in whole as to the Underlying Shares during
the Exercise Period, but in no event subsequent to the end of the Exercise
Period, by delivery to the Company of an Exercise Notice (in the form set forth
at the end hereof duly completed and executed) at the principal office of the
Company in Laguna Niguel, California specified in Section 12.2. This Warrant and
all rights and options hereunder shall expire at the Expiration Date, and shall
be wholly null and void to the extent this Warrant is not exercised before that
time.
2.2 Holder Representations and Warranties. In connection with any
exercise of this Warrant, the Holder agrees to make such representations and
warranties as may be necessary to demonstrate compliance with applicable
securities laws, as may be reasonably requested by the Company.
2.3 Number of Shares. The number of shares issuable pursuant to
this Warrant shall be equal to ONE MILLION FIVE HUNDRED THOUSAND DOLLARS
($1,500,000) divided by the per share Exercise Price of the Warrant.
3. Reorganization.
3.1 Modifications of Number of Shares and Exercise Price. The
number of shares purchasable upon the exercise of this Warrant and the Exercise
Price shall be subject to adjustment as follows:
(a) Stock Dividends. If at any time after the date of the
issuance of this Warrant (i) the Company shall fix a record date for
the issuance of any stock dividend payable in shares of common shares
or (ii) the number of shares of common shares shall have been increased
by a subdivision or split-up of shares of common shares, then, on the
record date fixed for the determination of holders of common shares
entitled to receive such dividend or immediately after the effective
date of subdivision or split-up, as the case may be, the number of
shares to be delivered upon exercise of this Warrant will be increased
so that the Holder will be entitled to receive the number of shares of
common shares that such Holder would have owned immediately following
such action had this Warrant been exercised immediately prior thereto,
and the Exercise Price will be adjusted as provided below in paragraph
(g).
(b) Combination of Stock. If the number of shares of
common shares outstanding at any time after the date of the issuance of
this Warrant shall have been decreased by a combination of the
outstanding shares of common shares, then, immediately after the
effective date of such combination, the number of shares of
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common shares to be delivered upon exercise of this Warrant will be
decreased so that the Holder thereafter will be entitled to receive the
number of shares of common shares that such Holder would have owned
immediately following such action had this Warrant been exercised
immediately prior thereto, and the Exercise Price will be adjusted as
provided below in paragraph (g).
(c) Reorganization, etc. If any capital reorganization of
the Company, or any reclassification of the common shares, or any
consolidation of the Company with or merger of the Company with or into
any other person or any sale, lease or other transfer of all or
substantially all of the assets of the Company to any other person,
shall be effected in such a way that the holders of common shares shall
be entitled to receive stock, other securities or assets (whether such
stock, other securities or assets are issued or distributed by the
Company or another person) with respect to or in exchange for common
shares, then, upon exercise of this Warrant the Holder shall have the
right to receive the kind and amount of stock, other securities or
assets receivable upon such reorganization, reclassification,
consolidation, merger or sale, lease or other transfer that such Holder
would have been entitled to receive upon exercise of this Warrant had
this Warrant been exercised immediately before such reorganization,
reclassification, consolidation, merger or sale, lease or other
transfer, subject to adjustments that shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Warrant.
(d) Fractional Shares. No fractional shares of common
shares or scrip shall be issued to any Holder in connection with the
exercise of this Warrant. Instead of any fractional shares of Common
Shares that would otherwise be issuable to such Holder, the Company
will pay to such Holder a cash adjustment in respect of such fractional
interest in an amount equal to that fractional interest of the common
shares.
(e) Carryover. Notwithstanding any other provision of
this Warrant, no adjustment shall be made to the number of shares of
common shares to be delivered to the Holder (or to the Exercise Price)
if such adjustment represents less than 1% of the number of shares to
be so delivered, but any lesser adjustment shall be carried forward and
shall be made at the time and together with the next subsequent
adjustment which together with any adjustments so carried forward shall
amount to 1% or more of the number of shares to be so delivered.
(f) Exercise Price Adjustment. Whenever the number of
shares purchasable upon the exercise of the Warrant is adjusted, as
herein provided, the Exercise Price payable upon the exercise of this
Warrant shall be adjusted by multiplying such Exercise Price
immediately prior to such adjustment by a fraction, of which the
numerator shall be the number of Warrant Shares purchasable upon the
exercise of the Warrant immediately prior to such adjustment, and of
which the denominator shall be the number of Warrant Shares purchasable
immediately thereafter.
(g) Notice of Adjustment. Whenever the number of shares
or the Exercise Price of such shares is adjusted, as herein provided,
the Company shall promptly mail by
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first-class, postage prepaid, to the Holder, notice of such adjustment
or adjustments and a certificate of a firm of independent public
accountants of recognized national standing selected by the Board of
Directors of the Company (who shall be appointed at the Company's
expense and who may be the independent public accountants regularly
employed by the Company) setting forth the number of shares and the
Exercise Price of such shares after such adjustment, setting forth a
brief statement of the facts requiring such adjustment and setting
forth the computation by which such adjustment was made.
4. No Impairment.
The Company may not, by amendment of its Articles of Incorporation or
Bylaws, or through reorganization, consolidation, merger, dissolution, issue or
sale of securities, sale of assets or any other voluntary action, willfully
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but shall at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder against impairment.
Without limiting the generality of the foregoing, the Company will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and non-assessable shares of Common Stock upon the
exercise of this Warrant.
5. Reservations.
The Company shall at all times reserve and keep available such number
of authorized shares of its Common Stock, solely for the purpose of issue upon
the exercise of the rights represented by this Warrant, as may at any time be
issuable upon the exercise of this Warrant.
6. Fractional Shares.
Fractional shares shall not be issued upon the exercise of this
Warrant. The Company shall, at its sole option, in lieu of issuing any
fractional share (i) pay the Holder entitled to such fraction a sum in cash
equal to the full market value of any such fractional interest as it shall
appear on the public market or if there is no public market for such shares,
then as shall be reasonably determined by the Company, or (ii) round-up to the
nearest whole number.
7. Fully Paid Stock; Voting Rights; Taxes.
7.1 The Company covenants and agrees that the shares of its
capital stock represented by each certificate to be delivered on the exercise of
this Warrant shall, at the time of such delivery, be validly issued and
outstanding, and be fully paid and nonassessable. The Company covenants and
agrees that, upon issuance of the Underlying Shares, the Underlying Shares shall
have voting rights equivalent to those of any other holder of Common Stock.
7.2 The Company covenants and agrees that it shall pay, when due
and payable, any and all federal and state issuance or transfer taxes that may
be payable in respect of this Warrant or any Common Stock or certificates issued
hereunder. The Company shall not, however, be required to pay any tax which may
be payable in respect of any transfer involved in the transfer
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and delivery of stock certificates in the name other than that of the Holder,
and any such tax shall be paid by the Holder at the time of presentation.
8. Closing of Transfer Books.
The right to exercise this Warrant shall not be suspended during any
period that the stock transfer books of the Company for its Common Stock may be
closed. The Company shall not be required, however, to deliver stock
certificates upon such exercise while such books are duly closed for any
purpose, but the Company may postpone the delivery of such certificates until
the opening of such books. In such case, the certificates shall be delivered
promptly after the books are opened.
9. Restrictions on Transferability of Warrant and Shares; Compliance With
Laws.
Notwithstanding anything contained in this Warrant to the contrary, the
terms and provisions of this Section 9 shall remain in full force and effect at
all times up to and including the end of the Exercise Period and, unless
otherwise specified herein, the term "Warrant" shall include the Underlying
Shares, and the term "Restricted Stock" shall include such Underlying Shares as
if they had been issued.
9.1 In General. This Warrant and the Restricted Stock shall not be
transferable except upon the conditions hereinafter specified, which conditions
are intended to ensure compliance with the provisions of the Securities Act (or
any similar federal statute at the time in effect) and any applicable state
securities laws in respect of the transfer of this Warrant or any Restricted
Stock.
9.2 Restrictive Legends. Each certificate for Restricted Stock
shall, unless otherwise permitted by the provisions of this Section 9.2, bear on
the face thereof a legend reading substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT AND ANY
STATE SECURITIES LAWS THAT MAY BE APPLICABLE.
If the Company shall receive an opinion of counsel reasonably
satisfactory to the Company (which shall include counsel to the Company and
counsel to the original purchaser hereof) that, in the opinion of such counsel,
such legend is not, or is no longer, necessary or required (including, without
limitation, because of the availability of any exemption afforded by Rule 144 of
the Commission), the Company shall, or shall instruct its transfer agents and
registrars to, remove such legend from the certificates evidencing the
Restricted Stock or issue new certificates without such legend.
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10. Lost, Stolen Warrants, Etc.
If this Warrant shall be mutilated, lost, stolen or destroyed, the
Company shall issue a new Warrant of like date, tenor and denomination and
deliver the same in exchange and substitution for and upon surrender and
cancellation of the mutilated Warrant, or in lieu of the Warrant lost, stolen or
destroyed, upon receipt of evidence satisfactory to the Company of the loss,
theft or destruction of such Warrant, and upon receipt of indemnity satisfactory
to the Company.
11. Severability.
Should any part of this Warrant for any reason be declared invalid,
such decision shall not affect the validity of any remaining portion, which
shall remain in force and effect as if this Warrant had been executed with the
invalid portion thereof eliminated. It is hereby declared the intention of the
parties hereto that they would have executed and accepted the remaining portion
of this Warrant without including therein any such part, parts or portion which
may, for any reason, be hereafter declared invalid.
12. Miscellaneous.
12.1 Holder Not A Stockholder. Except as otherwise specifically
provided herein, prior to the exercise of this Warrant, the Holder shall not be
entitled to any of the rights of a stockholder of the Company with respect to
any of the Underlying Shares, including the right as a stockholder to (a) vote
or consent or (b) receive dividends or any other distributions made to
stockholders.
12.2 Notices. All notices, requests, consents and other
communications required or permitted hereunder shall be in writing and shall be
delivered or mailed first class postage prepaid, registered or certified mail
return receipt requested:
(a) If to the Holder or Holders of the Company Stock,
addressed to such Holder at its address as shown on the books of the
Company, or at such other address as such Holder may specify by written
notice to the Company; or
(b) If to the Company, at ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as the Company may specify
by written notice to all Holders and Holders of Conversion Stock,
and such notices and other communication shall for all purposes of this Warrant
be treated as being effective or having been given (i) when delivered, or (ii)
if sent by mail, 48 hours after the same has been deposited in a regularly
maintained receptacle for the deposit of United States mail, addressed and
postage prepaid as aforesaid, if the addressee refuses to accept or does not
claim the mailed item.
12.3 Successors and Assigns. This Warrant and the rights evidenced
hereby shall inure to the benefit of and be binding upon the successors and
permitted assigns of the Company and
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the Holder. This Warrant is not assignable by Holder without the prior written
consent of the Company, in its sole discretion.
12.4 Amendments. This Warrant sets forth the entire agreement and
understanding of the parties with respect to the transactions contemplated
hereby and supersede all prior agreements, arrangements and understandings
relating to the subject matter hereof. This Warrant may not be modified,
supplemented, varied or amended except by an instrument in writing signed by the
Company and the Holder.
12.5 Headings. The index and the descriptive headings of sections
of this Warrant are provided solely for convenience of reference and shall not,
for any purpose, be deemed a part of this Warrant.
12.6 Governing Law. THIS WARRANT AND ALL MATTERS CONCERNING THIS
WARRANT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA FOR CONTRACTS
ENTERED INTO AND TO BE PERFORMED IN SUCH STATE WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and delivered by a duly authorized officer as of the 21st day of February 2001.
LIQUIDMETAL TECHNOLOGIES
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇
Chief Executive Officer
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EXERCISE NOTICE
TO LIQUIDMETAL TECHNOLOGIES:
The undersigned registered holder of the Warrant dated as of February
21, 2001 (the "Warrant") hereby irrevocably exercises the Warrant, purchases the
number of shares of Common Stock in the Company determined pursuant to Section
2.3 of the Warrant, and herewith makes payment of the Exercise Price (as defined
in the Warrant), and requests that the certificate(s) for such shares be issued
in the name of the undersigned Holder and delivered to it at Holder's address
specified in Section 12.2 of the Warrant, all on the terms and subject to the
conditions specified in the Warrant.
Date:
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[SIGNATURE]
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