EXHIBIT 4.3
INVESTOR RIGHTS AND SHAREHOLDER AGREEMENT
This Investor Rights and Shareholder Agreement (this "Agreement") is
entered into as of April 18, 2001, among LIQUIDMETAL TECHNOLOGIES, a California
corporation (the "Company"), ATI HOLDINGS, LLC, a Delaware limited liability
company ("ATI"), ALLOY INVESTORS, INC., a Florida corporation ("Alloy
Investors"), ALLOY VENTURES, LLP, a Florida limited liability limited
partnership (the "Partnership"), and any additional shareholders of the Company
that may become parties to this Agreement (together with the Partnership, the
"Shareholders").
RECITALS
WHEREAS, the Partnership has executed a Common Stock Purchase Agreement of
even date herewith (the "Stock Purchase Agreement") pursuant to which the
Partnership has agreed to purchase shares of the Company's common stock, no par
value (the "Common Stock");
WHEREAS, this Agreement is being executed and delivered pursuant to Section
4.4 of the Stock Purchase Agreement;
WHEREAS, the Company and the Shareholders deem it in the best interests of
the Company to enter into this Agreement; and
NOW, THEREFORE, in consideration of the recitals and the mutual covenants
and agreements set forth herein, the parties agree as follows:
1. Definitions. In addition to the capitalized terms defined elsewhere in
this Agreement, the following capitalized terms shall have the following
meanings ascribed to them when used in this Agreement:
"Commission" means the United States Securities and Exchange Commission.
"Common Shares" means shares of Common Stock of the Company that have not
been sold to the public (i) pursuant to a registration statement declared
effective by the Commission or (ii) after a Public Offering, pursuant to Rule
144.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means any person owning of record Registrable Securities that have
not been sold to the public or pursuant to Rule 144 promulgated under the
Securities Act or any Permitted Transferee to whom rights under Section 5 have
been duly assigned in accordance with Section 5.g of this Agreement.
"Investor Shares" means, at any time, (i) any Common Shares acquired
pursuant to the Stock Purchase Agreement; (ii) any Common Shares that are issued
upon the exchange of Series A Convertible Preferred Stock of LMG pursuant to
that certain Share
Exchange Agreement of even date herewith between the Company and the
Partnership, (iii) any other Securities which are deemed by an amendment to this
Agreement to be "Investor Shares", and (iv) any Securities then outstanding that
were issued as, or were issued directly or indirectly upon the conversion or
exercise of other Securities issued as, a dividend or other distribution with
respect to or in replacement of any Securities referred to in (i), (ii), or
(iii). For purposes of this Agreement, the calculation of the number of Investor
Shares (to the extent such Investor Shares are not Common Shares) shall be
determined on an as-converted basis into Common Shares.
"LMG" means Liquidmetal Golf, a California corporation.
"Permitted Transferee" means a lineal descendant, spouse, or parent of a
Holder who is a natural person, or, in the event of a transfer upon the Holder's
death, the executor or personal representative of the Holder's estate.
"Person" means an individual, corporation, partnership, limited liability
company, limited partnership, syndicate, person (including, without limitation,
a "Person" as defined in Section 13(d)(3) of the Exchange Act), trust,
association, entity or government, political subdivision, agency or
instrumentality of a government.
"Public Offering" means any offering by the Company of its equity
securities to the public pursuant to an effective registration statement under
the Securities Act.
"Registrable Securities" means (i) all Common Shares issued or issuable
pursuant to the Stock Purchase Agreement; (ii) any Common Shares that were
issued upon the exchange of Series A Convertible Preferred Stock of LMG pursuant
to that certain Share Exchange Agreement of even date herewith between the
Company and the Partnership, (iii) any other Securities which are deemed by an
amendment to this Agreement to be "Registrable Securities," and (iv) any shares
of the Common Stock of the Company issued in connection with any stock split,
stock dividend, recapitalization or similar event occurring with respect to the
Investor Shares. Notwithstanding the foregoing, a Security shall cease to be a
"Registrable Security" upon the transfer or assignment of such Security by the
Holder thereof, except for a transfer without consideration to a Permitted
Transferee.
"Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement.
"Rule 144" means Rule 144 (including Rule 144(k)) of the Commission under
the Securities Act or any similar provision then in force under the Securities
Act.
"Securities" means Common Shares or shares of capital stock or other
securities directly or indirectly exercisable for, or convertible into, Common
Shares; provided, however, that Securities shall not include any securities
which have been sold to the public pursuant to a registration statement declared
effective by the Commission or, after a Public Offering, pursuant to Rule 144.
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"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute, as the same shall be in effect from time to time.
2. Disposition of Securities. Investor Shares may be transferred by the
holders thereof, subject to the restrictions set forth in Section 3 below,
provided that, as a condition precedent to any transfer of Investor Shares (a)
any Investor Shares so transferred shall remain subject to all of the
restrictions set forth in this Agreement, including the restrictions set forth
in Section 3 below, and (b) the transferee must agree to be bound by this
Agreement to such extent as if the transferee were the shareholder originally a
party hereto and must sign a counterpart signature page hereto for such purpose.
Any transfer or assignment of Investor Shares in violation of this Agreement
will be void ab initio and will have no force and effect.
3. Restrictions on Transfer.
a. Legends. The certificates representing the Investor Shares will
bear substantially the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS, AND MAY
NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF SUCH ACT
AND STATE SECURITIES LAWS OR AN EXEMPTION THEREFROM IS AVAILABLE AS
ESTABLISHED BY A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO THE
CORPORATION. THESE SECURITIES ARE SUBJECT TO ADDITIONAL RESTRICTIONS
ON TRANSFER AND OTHER AGREEMENTS SET FORTH IN AN INVESTOR RIGHTS AND
SHAREHOLDER AGREEMENT, A COPY OF WHICH MAY BE OBTAINED AT THE
PRINCIPAL EXECUTIVE OFFICE OF THE CORPORATION. ANY SALE, ASSIGNMENT,
TRANSFER, PLEDGE OR DISPOSITION IN CONFLICT WITH THE INVESTOR RIGHTS
AND SHAREHOLDER AGREEMENT IS VOID AND OF NO LEGAL FORCE, EFFECT OR
VALIDITY WHATSOEVER.
b. Securities Act. No holder of Investor Shares may sell, transfer, or
dispose of any of such Investor Shares (except pursuant to an effective
registration statement under the Securities Act) without first delivering to the
Company an opinion of counsel reasonably acceptable in form and substance to
the Company that registration under the Securities Act is not required in
connection with such transfer.
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c. Holdback Agreements. Each holder of Investor Shares agrees not to
effect any public sale or distribution of equity securities of the Company, or
any securities convertible into or exchangeable or exercisable for such
securities, (i) during the seven (7) days prior to, and during the one hundred
and eighty (180) days following, the effective date of an initial Public
Offering, (except as part of such underwritten registration), or (ii) during the
seven (7) days prior to, and during the ninety (90) days following, the
effective date of any underwritten Public Offering other than an initial Public
Offering, (except as part of such underwritten registration), in each case
unless the underwriters managing the Public Offering otherwise agree. Each
holder of Investor Shares agrees to enter into customary lock-up agreements
consistent with the foregoing if requested by any underwriter of any such Public
Offering. For purposes of this Section 3.c only, following an initial Public
Offering, the term Investor Shares shall not include any shares which have been
(a) disposed of pursuant to an effective registration statement under the
Securities Act or (b) sold pursuant to Rule 144.
d. Right of First Refusal. In addition to the other restrictions set
forth in this Agreement, a Shareholder may not sell, transfer, assign, or
otherwise dispose (other than a transfer without consideration to a Permitted
Transferee or a sale in a public offering pursuant to Section 5 hereof) of all
or any part of the Investor Shares now or hereafter owned by such Shareholder
without first offering to sell such Investor Shares to the Company in the manner
hereinafter described.
i. The offer by the transferring Shareholder to the Company shall
be a written offer to sell all of the Investor Shares proposed to be by
transferred by the transferor, to which shall be attached a statement of
intention to transfer, the name and address of such prospective transferee, the
number of Investor Shares involved in the proposed transfer, and the terms of
such transfer. The Company shall be entitled to purchase the offered Investor
Shares at the price per share in cash offered by the prospective transferee.
ii. Within thirty (30) days after the receipt by the Company of
such offer, the Company may, at its option, elect to purchase all, but not less
than all, of the Investor Shares proposed to be transferred by the transferor.
The Company shall exercise its election to purchase the Investor Shares by
giving notice thereof to the transferor. The notice shall specify a date for the
closing of the purchase which shall be not more than thirty (30) days after the
date of the giving of such notice.
iii. If the offer to sell is not accepted by the Company, the
transferor may make a bona fide transfer to the prospective transferee named in
the statement attached to the offer, such transfer to be made only in strict
accordance with the terms therein stated. However, if the transferor shall fail
to make such transfer within thirty (30) days following the election by the
Company not to accept such offer, such Investor Shares shall again become
subject to all the restrictions of this Section 3.4.
iv. Upon the transfer of any Investor Shares pursuant to
paragraph 3.d.iii above, the rights set forth in Section 3.e and Section 5 of
this Agreement will automatically and immediately terminate with respect to such
transferred Investor Shares.
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v. The provisions of this Section 3.d shall not apply to any
distribution of Investor Shares by the Partnership (as defined in Section 7
below) to any of its partners, but only if such distribution is undertaken in
accordance with the terms and provisions of the Partnership Agreement as in
effect as of the date hereof (or as amended in accordance with Section 7 below).
vi. The obligations set forth in this Section 3.d shall terminate
at such time that the Company consummates an initial Public Offering or becomes
subject to the reporting requirements of the Exchange Act.
e. Co-Sale Rights.
i. In the event that ATI enters into an agreement for the sale of
50% or more of the outstanding Common Stock of the Company (a "Proposed Sale"),
then ATI shall provide to each Holder a notice describing the Proposed Sale (the
"Tag-Along Notice"). The Tag-Along Notice shall set forth: (i) the shares of
Common Stock proposed to be purchased (the "Tag-Along Offered Shares"); (ii) the
proposed purchase price, including for this purpose any other consideration
payable to ATI which is payable in connection with such sale, except to the
extent such other consideration is paid in exchange for securities of the
Company other than Common Stock (the "Tag-Along Offered Price"); and (iii) the
proposed terms of purchase (the "Tag-Along Offered Terms").
ii. Upon receipt of a Tag-Along Notice, a Holder shall have the
right to participate in such Proposed Sale, exercisable by delivery of a notice
to ATI (the "Participation Notice") within 30 days from the date of receipt of
the Tag-Along Notice. The right of a Holder pursuant to this Section 3.e shall
terminate if not exercised within 30 days after receipt of the Tag-Along Notice.
The Participation Notice shall set forth the number of shares of Common Stock
that the participating Holder desires to include in the proposed sale.
iii. Following the expiration of the 30-day period referred to in
subsection (ii) above, if a Holder has delivered the Participation Notice, ATI
shall notify the Holder of the number of shares of Common Stock which the Holder
may include in the proposed transfer (the "Includible Shares"), which shall be
the lesser of (A) the shares requested for inclusion by the Holder; and (B) the
product of (1) the Tag-Along Offered Shares multiplied by (2) a fraction, the
numerator of which is the total number of Investor Shares then owned by the
Holder and the denominator of which is the total number of shares of Common
Stock outstanding (calculated on a fully-diluted basis, assuming the conversion
of all convertible securities and the exercise of all options and warrants).
Upon delivery of a Participation Notice, the participating Holder shall be
entitled and obligated to sell to the proposed purchaser or purchasers his or
her Includible Shares at the Tag-Along Offered Price pursuant to the Tag-Along
Offered Terms, and the Common Stock which ATI shall be entitled to sell to the
proposed purchaser or purchasers shall be reduced accordingly.
iv. At the closing of the Proposed Sale (notice of the date,
place and time of which shall be designated by ATI and provided to the Holder in
writing at least five
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business days prior thereto), the selling Holder shall deliver an instrument
evidencing the Includible Shares, duly endorsed, or accompanied by written
instruments of transfer in form reasonably satisfactory to the purchaser or
purchasers, duly executed by such Holder.
v. The rights set forth in this Section 3.e shall terminate at
such time that the Company consummates an initial Public Offering or becomes
subject to the reporting requirements of the Exchange Act. Additionally, upon
the transfer or assignment of any Investor Shares by the Holder thereof, other
than a transfer without consideration to a Permitted Transferee, the rights set
forth in this Section 3.e shall automatically and immediately terminate.
4. Information Rights.
a. Financial Information. The Company will provide to each holder of
at least 2,500 Investor Shares (as adjusted for stock splits, dividends,
conversions, and the like):
i. as soon as practicable, but in any event within one-hundred
twenty (120) days after the end of each fiscal year of the Company, an income
statement for such fiscal year, a balance sheet of the Company as of the end of
such year, a statement of shareholder's equity as of the end of such year, and a
statement of cash flows for such fiscal year, such year-end financial reports to
be in reasonable detail and to be prepared in accordance with generally accepted
accounting principles ("GAAP"); and
ii. as soon as practicable, but in any event within forty-five
(45) days after the end of the first three quarters of each fiscal year of the
Company, an income statement and a balance sheet as of the end of such fiscal
quarter prepared in accordance with GAAP consistently applied with prior
practice for earlier periods (with the exception of footnotes that may be
required by GAAP), subject to changes resulting from any year-end audit
adjustments.
b. Termination of Rights. The rights set forth in this Section 4 shall
terminate at such time that the Company consummates an initial Public Offering
or becomes subject to the reporting requirements of the Exchange Act.
5. Piggyback Registration Rights.
a. Notice of Registration. The Company shall notify all Holders of
Registrable Securities in writing at least 30 days prior to filing any
registration statement under the Securities Act for purposes of effecting a
public offering of securities of the Company solely for cash (including, but not
limited to, registration statements relating to secondary offerings of
securities of the Company). If the holders of at least a majority of the
Registrable Securities elect in writing to exercise their registration rights
under this Section 5, and if such written election is made within 15 days after
the delivery of the Company's notice, then the Company will afford the Holders
an opportunity to include in such registration statement all or any part of the
Registrable Securities then held by such Holders; provided, however, that the
Company shall not be obligated to effect, or take any action to effect, any such
registration pursuant to
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this Section 5 after the Company has effected two (2) such registrations that
are subject to this Section 5.a and such registrations have been declared or
ordered effective. Each Holder desiring to include in any such registration
statement all or any part of the Registrable Securities held by such Holder
shall, within 15 days after delivery of the above-described notice from the
Company, so notify the Company in writing, and in such notice shall inform the
Company of the number of Registrable Securities such Holder wishes to include in
such registration statement. However, if, at any time after giving notice to the
Holders under this Section 5.a and before the effective date of the registration
statement filed in connection with the proposed registration, the Company shall
determine for any reason not to register or to delay registration of the
securities proposed to be registered, the Company may, at its sole option, give
written notice of such determination to the Holders who elected to participate
in such registration, and (i) in the case of a determination not to register,
shall be relieved of its obligation to register any Registrable Securities in
connection with such registration, and (ii) in the case of a determination to
delay registration, shall be permitted to delay registering any Registrable
Securities for the same period of delay in registering the other securities
proposed to be registered. Notwithstanding the foregoing, the provisions of this
Section 5 shall not apply to (i) any registration statement relating to the sale
of securities to participants in a Company stock option plan, equity incentive
plan, or any other employee benefit plan, (ii) a registration on a form which
does not include substantially the same information as would be required to be
included in a registration statement covering the sale of the Registrable
Securities, (iii) a registration in which the only Common Stock being registered
is Common Stock issuable upon conversion of debt securities which are also being
registered, or (iv) an SEC Rule 145 transaction or a registration relating to a
corporate reorganization.
b. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 5 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be reasonably required to effect the registration of such Holder's
Registrable Securities.
c. Expenses of Company Registration. The Company shall bear and pay
all expenses (other than underwriting discounts and commissions, stock transfer
taxes, and fees of counsel to the Holders) incurred in connection with any
registration, filing or qualification of Registrable Securities with respect to
the registrations pursuant to Section 5.1 for each Holder, including (without
limitation) all registration, filing, and qualification fees, and printers' and
accounting fees.
d. Underwriting Requirements. If a registration statement under which
the Company gives notice under Section 5.1 is for an underwritten offering, then
the Company shall so advise the Holders of Registrable Securities. In such
event, the right of any such Holder's Registrable Securities to be included in a
registration pursuant to Section 5.1 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their Registrable Securities through such
underwriting shall enter into
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an underwriting agreement in customary form with the managing underwriter or
underwriter(s) selected for such underwriting. Notwithstanding any other
provision of this Agreement, if the managing underwriter(s) determine(s) in good
faith that marketing factors require a limitation of the number of shares to be
underwritten, then the amount of Registrable Securities to be included in the
registration for the account of the Holders will be reduced (to zero if
necessary) pro rata among the Holders on the basis of the Registrable Securities
to be included therein by each Holder, to the extent necessary to reduce the
total amount of securities to be included in such offering to the amount
recommended by such managing underwriter(s).
x. Xxxxx of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 5.
f. Indemnification. In the event any Registrable Securities are
included in an underwritten registration statement under this Agreement:
i. To the extent permitted by law, the Company will indemnify and
hold harmless each Holder against any losses, claims, damages, or liabilities to
which they may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) the omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation by the
Company of the Securities Act, the Exchange Act, any state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
state securities law; and the Company will pay to each such Holder any legal or
other expenses reasonably incurred by the Holder in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this Section 5.f
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability,
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such Holder or
such Holder's agent or representative; provided, further, that the Company shall
not be liable to: i) any individual or entity that participates as an
underwriter in the offering or sale of Registrable Securities or ii) any other
individual or entity who controls such underwriter within the meaning of the
Securities Act, to the extent that any loss, claim, damage, liability, or action
arises out of the failure of such individual(s) or entity(ies) to send or give a
copy of the final prospectus, as the same may be supplemented or amended, to the
party asserting an untrue statement or alleged untrue statement or omission or
alleged omission
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at or prior to the written confirmation of the sale of Registrable Securities to
such party if such statement or omission was corrected in the final prospectus.
ii. To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act, any underwriter,
any other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against any losses,
claims, damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon written information furnished by such Holder for use in connection
with such registration; and each such Holder will pay any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this Section 5.f, in connection with investigating or defending any such
loss, claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this Section 5.f shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld.
iii. Promptly after receipt by an indemnified party under this
Section 5.f of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 5.f, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the indemnified and indemnifying parties; provided, however,
that an indemnified party (together with all other indemnified parties which may
be represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, to the extent prejudicial to its ability to defend such action,
shall relieve such indemnifying party of its liability to the indemnified party
under this Section 5.f, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party other than under this Section 5.f.
iv. If the indemnification provided for in this Section 5.f is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
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in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
v. Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with an underwritten Public Offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
vi. The obligations of the Company and Holders under this Section
5.f shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 5, and otherwise.
g. Assignment of Registration Rights. The rights to cause the Company
to register Registrable Securities pursuant to this Section 5 may not be
assigned except in connection with the transfer of Registrable Securities
without consideration to a Permitted Trasnferee (and only with all related
obligations) provided that (i) the transfer of the Registrable Securities by the
Holder is undertaken in accordance with the terms and provisions of this
Agreement, including the provisions of Section 2 of this Agreement, (ii) the
Company is, within a reasonable time before such transfer, furnished with
written notice of the name and address of such Permitted Transferee and the
securities with respect to which such registration rights are being assigned.
The transfer of Registrable Securities under this Section 5.g is only permitted
when any transferee or assignee agrees in writing to be bound by and subject to
all of the terms and conditions of this Agreement.
h. Termination of Registration Rights. The registration rights granted
pursuant to this Section 5 will terminate as to any Holder upon the later to
occur of (a) such time as the Company and the Holder are satisfied that Rule
144(k) is available for the resale of all of the Holder's Registrable
Securities, (b) the three-year anniversary following the date of the
consummation of the Company's initial Public Offering, or (c) such time as a
Holder has less than one percent of the outstanding shares of Company Common
Stock and can sell all of its remaining Registrable Securities under Rule 144
during any three-month period.
i. Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities under this Agreement, the Company
shall, as expeditiously as reasonably possible:
i. Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration
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statement to become effective, and keep such registration statement effective
until the distribution is completed, but not more than 150 days, provided that
no such registration shall constitute a shelf registration under Rule 415
promulgated by the SEC under the Securities Act.
ii. Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
iii. Furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and all amendments and supplements thereto,
and such other documents as they may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by them that are included in
such registration.
iv. Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
v. In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
vi. Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing and, following such notification, promptly deliver to each Holder
copies of all amendments or supplements referred to in paragraphs (i) and (ii)
of this Section 5.i.
vii. Furnish, at the request of any Holder registering
Registrable Securities, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being sold
through underwriters, (i) a copy of the opinion of the counsel representing the
Company for the purposes of such registration addressed to the underwriters for
such registration and (ii) a copy of the "comfort letter" addressed to the
underwriters for such registration from the independent certified public
accountants of the Company.
6. [Intentionally left blank]
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7. Matters relating to the Partnership. The Partnership and Alloy
Investors, as the general partner of the Partnership, each hereby agree that
they shall not permit any amendment to be made to Section 3.5(a) or Section 5.5
of the Agreement of Limited Partnership of the Partnership, dated April 18, 2001
(the "Partnership Agreement"), without the prior written consent of the Company,
which consent shall not be unreasonably withheld. Furthermore, the Partnership
and Alloy Investors hereby agree that the Partnership may not make any
distributions of any Investor Shares to the partners of such partnership except
in accordance with the Partnership Agreement as in effect on the date hereof (or
pursuant to any amendment to the Partnership Agreement approved by the Company
in accordance with the preceding sentence). The Partnership and Alloy Investors
agree and acknowledge that the provisions of this Section 7 are a material
inducement with respect to the Company's execution and delivery of the Stock
Purchase Agreement and this Agreement.
8. Execution; Counterparts. A Person who has executed the Stock Purchase
Agreement and signs a signature page hereto shall become a party hereto upon the
issuance to such Person of Investor Shares for which such Person has subscribed.
This Agreement may be executed in any number of counterparts, each of which when
so executed and delivered will be deemed an original, and such counterparts
together will constitute one instrument.
9. Notices. Any notices desired, required or permitted to be given
hereunder shall be delivered personally or mailed, certified or registered mail,
return receipt requested, or delivered by overnight courier service, to the
following addresses, or such other addresses as shall be given by notice
delivered hereunder, and shall be deemed to have been given upon delivery, if
delivered personally, three days after mailing, if mailed, or one business day
after delivery to the overnight courier service, if delivered by overnight
courier service:
If to the Company, to:
Liquidmetal Technologies
00000 Xxxxxxxxxxxx Xx., Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx, Chief Executive Officer
If to the Shareholders, to the addresses set forth on the stock record
books of the Company.
If to ATI, to:
ATI Holdings, LLC, c/o Iliant Corporation
0000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxx
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If to Alloy Investors, to:
Alloy Investors, Inc.
00000 Xxxxxxxx Xxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx, President
10. Amendments and Waivers. The provisions of this Agreement may be
amended upon the written agreement of the Company and the holder or holders of a
majority of the Investor Shares. Any waiver, permit, consent or approval of any
kind or character on the part of any holders of any provision or condition of
this Agreement must be made in writing and shall be effective only to the extent
specifically set forth in writing.
11. Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement 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
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed, and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
12. Complete Agreement. This Agreement supersedes and preempts any prior
and contemporaneous understandings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way.
13. Successors and Assigns. All covenants and agreements in this Agreement
by or on behalf of any of the parties hereto will bind and inure to the benefit
of the respective successors and permitted assigns of the parties hereto, and
each transferee of all or any portion of the Securities held by the parties
hereto, whether so expressed or not.
14. Governing Law. This Agreement shall be construed and enforced in
accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Agreement shall be governed by, the laws
of the State of Florida, without giving effect to provisions thereof regarding
conflict of laws.
15. Headings. The captions set forth in this Agreement are for convenience
only and shall not be considered as part of this Agreement or as in any way
limiting the terms and provisions hereof.
13
IN WITNESS WHEREOF, this Investor Rights and Shareholder Agreement was
executed as of the date first set forth above.
LIQUIDMETAL TECHNOLOGIES
By: /s/ Xxxx Xxxx
---------------------------------------------
Xxxx Xxxx, Chairman of the Board of Directors
ATI HOLDINGS, LLC
By: X. Xxxxxxxxxx Capital Management, LLC,
its manager
By: /s/ Xxxx Xxxx
---------------------------------------------
Xxxx Xxxx, Manager
ALLOY INVESTORS, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------------------
Xxxxx Xxxxxx, President
14
LIQUIDMETAL TECHNOLOGIES
COUNTERPART SIGNATURE PAGE
TO
INVESTOR RIGHTS AND SHAREHOLDER AGREEMENT
The undersigned hereby executes the Investor Rights and Shareholder
Agreement among Liquidmetal Technologies (the "Company") and certain
shareholders of the Company and hereby authorizes this signature page to be
attached as a counterpart of such document executed by the Company. The
undersigned hereby agrees to be bound by, and shall be entitled to the rights
and benefits of the terms and provisions of the Investor Rights and Shareholder
Agreement.
Dated: April 18, 2001
ALLOY VENTURES, LLP
By: Alloy Investors, Inc., its general partner
By: /s/ Xxxxx Xxxxxx
--------------------------------------------
Xxxxx Xxxxxx, President
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