I did a quick comparison between the two forms:
p.2
Registration No. 333- 182729
p.3
CALCULATION OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered
Amount to be
Registered
Proposed Maximum
Offering Price
Per Share
Proposed Maximum
Aggregate
Offering Price
Amount of
Registration Fee
Common Stock issuable upon conversion of Senior Convertible Notes due
on September 1, 2013(1) 51,136,370 shares $ 0.352(2) $ 18,000,003(2) $ 2,063
Common Stock issuable upon exercise of Common Stock Purchase
Warrants(1) 28,125,000 shares $ 0.384(3) $ 10,800,000(3) $ 1,238
TOTAL 79,261,370 shares $ 28,800,003 $ 3,301(4)
(1) Pursuant to Rule 416 under the Securities Act of 1933, the securities being registered hereunder also include such indeterminate number of additional
shares of common stock as may be issuable as a result of stock splits, stock dividends, and similar transactions.
(2) Pursuant to Rule 457(g) under the Securities Act of 1933, the proposed maximum offering price (and, accordingly, the amount of the registration fee)
has been calculated based on the conversion price of the Senior Convertible Notes due on September 1, 2013.
(3) Pursuant to Rule 457(g) under the Securities Act of 1933, the proposed maximum offering price (and, accordingly, the amount of the registration fee)
has been calculated based on the exercise price of the Common Stock Purchase Warrants.
(4) Previously paid.
p.10
RISK FACTORS
An investment in our securities involves a high degree of risk and many uncertainties. You should carefully consider the specific factors listed below together
with the other information included in this prospectus before purchasing our securities in this offering. If any of the possibilities described as risks below
actually occurs, our operating results and financial condition would likely suffer and the trading price of our securities could fall, causing you to lose some or
all of your investment in the securities being offered. The risks described below are not the only ones facing us. Additional risks not currently known to us or
that we currently believe are immaterial also may impair our business, operations, liquidity and stock price materially and adversely. The following is a
description of what we consider the key challenges and material risks to our business and an investment in our securities.
We have limited funding to support our current operations.
We anticipate that our current capital resources will be sufficient to fund our operations through at least the end of 2013. After 2013, we may require
additional funding in order to continue operations as a going concern. We have a relatively limited history of producing bulk amorphous alloy components
and products on a mass-production scale. Furthermore, Visser’s ability to produce our products in desired quantities and at commercially reasonable prices is
uncertain and is dependent on a variety of factors that are outside of its control, including the nature and design of the component, the customer’s
specifications, and required delivery timelines. Such factors may require that we raise additional funds to support our operations beyond 2013. There can be
no assurance that we will be successful in securing needed financing at acceptable terms, if at all. If funding is insufficient at any time in the future, we may
be required to alter or reduce the scope of our operations. If we are successful in procuring additional financing when required it will most likely result in our
issuing additional shares and/or rights to acquire shares of our capital stock. Accordingly, our access to additional financing when needed is anticipated to be
dilutive to existing shareholders.
Our indebtedness reduces our financial flexibility and could impede our ability to operate.
In a private placement completed on July 2, 2012, we issued an aggregate of $12 million in principal amount of senior convertible notes. The notes are
payable in twelve equal monthly installments beginning in October 2012. Although the notes are payable through the issuance of shares of our common stock
to holders of the notes, the ability to issue stock in satisfaction of the note payments is subject to various conditions (including trading volume conditions) that
we may not be able to meet. In such event, we could be required to use cash to repay some or all of a portion of the notes, and we may not have the funds to
make such payments when due. Even if we do have the funds to make such cash payments, the payments may adversely affect our ability to fund our
operations. Additionally, the notes issued in July 2012 impose certain restrictive covenants on us that may impede our ability to operate our company. For
example, the notes prevent us from incurring additional debt, with certain exceptions, while the notes are still outstanding. Even if we have the right to satisfy
the notes by issuing shares of our common stock, the shares issued to the holders of the notes could be highly dilutive to our shareholders.
p.120
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, if the registrant is subject to Rule 430C,
each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements
relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to
such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such date of first use.
p.121
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Rancho Santa Margarita, State of California, on the 2nd day of August , 2012.
LIQUIDMETAL TECHNOLOGIES, INC.
By: /s/ Thomas Steipp
Thomas Steipp
President and Chief Executive Officer
(Principal Executive Officer)
Signature Title Date
/s/ Thomas Steipp
Thomas Steipp President, Chief Executive Officer and Director August 2, 2012
/s/ Tony Chung
Tony Chung Chief Financial Officer August 2, 2012
*
Abdi Mohamedi Chairman of the Board and Director August 2, 2012
*
Ricardo Salas Executive Vice President and Director August 2, 2012
*
Mark Hansen Director August 2, 2012
*
Scott Gillis Director August 2, 2012
*By: /s/ Tony Chung
Tony Chung
Attorney-in-Fact
p.122
EXHIBIT INDEX
The following exhibits are filed as part of, or are incorporated by reference into, this Registration Statement on Form S-1:
Exhibit
Number Document Description
3.1 Certificate of Incorporation (incorporated by reference from Exhibit 3.1 to the Form 10-Q filed on August 14, 2003).
3.2 Bylaws (incorporated by reference from Exhibit 3.2 to the Form 10-Q filed on August 14, 2003).
3.3 Certificate of Designations, Preferences and Rights of Series A Preferred Stock of Liquidmetal Technologies, Inc. (incorporated by reference
from Exhibit 3.1 to the Form 8-K filed on May 6, 2009).
3.4 Certificate of Amendment to the Certificate of Incorporation (incorporated by reference from Exhibit 3.1 to the Form 8-K filed on August 6,
2009).
3.5 Amended and Restated Certificate of Designations, Preferences and Rights of Series A Preferred Stock of Liquidmetal Technologies, Inc.
(incorporated by reference from Exhibit 3.1 to the Form 10-Q filed on November 4, 2010).
3.6 Amendment to ByLaws of Liquidmetal Technologies, Inc. (incorporated by reference from Exhibit 3.1 to the Form 8-K filed on September 21,
2011).
3.7 Second Certificate of Amendment to the Certificate of Incorporation (incorporated by reference from Exhibit 3.1 to the Form 8-K filed on July 2,
2012).
4.1 Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.7
4.2 Form of Common Stock Certificate (incorporated by reference from Exhibit 4.2 to the Form 10-Q filed on August 14, 2003).
5.1 (1) Opinion of Foley & Lardner LLP.
10.1 Amended and Restated License Agreement, dated September 1, 2001, between Liquidmetal Technologies, Inc. and California Institute of
Technology (incorporated by reference from Exhibit 10.1 to the Registration Statement on Form S-1 filed on November 20, 2001 (Registration
No. 333-73716)).
10.2* 1996 Stock Option Plan, as amended, together with form of Stock Option Agreement (incorporated by reference from Exhibit 10.7 to the
Registration Statement on Form S-1 filed on November 20, 2001 (Registration No. 333-73716)).
10.3* 2002 Equity Incentive Plan (incorporated by reference from Exhibit 10.23 to the Registration Statement on Form S-1 (Amendment No. 2) filed
on April 5, 2002 (Registration No. 333-73716)).
10.4* 2002 Non-Employee Director Stock Option Plan (incorporated by reference from Exhibit 10.24 to the Registration Statement on Form S-1
(Amendment No. 2) filed on April 5, 2002 (Registration No. 333-73716)).
10.5 Form of Indemnity Agreement between Liquidmetal Technologies, Inc. and directors and executive officers (incorporated by reference from
Exhibit 10.59 to the Form 10-K filed on March 16, 2006).
10.6 Standard Industrial / Commercial Single-Tenant Lease, dated February 13, 2007, between Liquidmetal Technologies, Inc. and 30452 Esperanza
LLC (incorporated by reference from Exhibit 10.1 to the Form 10-Q filed on May 15, 2007).
10.7 Lease, dated March 19, 2007, between Liquidmetal Technologies, Inc. and Larry Ruffino and Roland Ruffino (incorporated by reference from
Exhibit 10.1 to the Form 10-Q filed on May 15, 2007).
10.8 Form of Common Stock Purchase Warrant issued in connection with the 8% Senior Secured Convertible Subordinated Notes (incorporated by
reference from Exhibit 10.3 to the Form 8-K filed on May 7, 2009).
10.9 Form of Common Stock Purchase Warrant issued in connection with the Series A Preferred Stock (incorporated by reference from Exhibit 10.4
to the Form 8-K filed on May 7, 2009).
10.10* Employment Agreement, dated August 3, 2010, between Thomas Steipp and Liquidmetal Technologies, Inc. (incorporated by reference from
Exhibit 10.1 to the Form 10-Q filed on November 4, 2010).
10.11* Restricted Stock Agreement, dated August 3, 2010, between Thomas Steipp and Liquidmetal Technologies, Inc. (incorporated by reference from
Exhibit 10.2 to the Form 10-Q filed on November 4, 2010).
10.12** Master Transaction Agreement, dated August 5, 2010, between Apple Inc., Liquidmetal Technologies, Inc., Liquidmetal Coatings, LLC and
Crucible Intellectual Property, LLC (incorporated by reference from Exhibit 10.3 to the Form 10-Q filed on November 4, 2010).
10.13 Subscription Agreement, dated August 10, 2010, between Liquidmetal Technologies, Inc. and Norden LLC (incorporated by reference from
Exhibit 10.4 to the Form 10-Q filed on November 4, 2010).
10.14 Consent Agreement between Liquidmetal Technologies, Inc. and holders of the Series A-1 Preferred Stock and holders of the Series A-2
Preferred Stock (incorporated by reference from Exhibt10.5 to the Form 10-Q filed on November 4, 2010).
10.15 Amendment No. 3 to First Amended and Restated Operating Agreement of Liquidmetal Coatings, LLC, dated December 15, 2010 (incorporated
by reference from Exhibit 10.59 to the Form 10-K filed on March 15, 2010).
10.16 Settlement and Equity Interest Purchase Agreement, dated April 6, 2011, between Liquidmetal Technologies, Inc. and SAGA S.p.A.
(incorporated by reference from Exhibit 10.1 on the Form 10-Q filed on May 16, 2011).
10.17 Second Amendment to Credit Agreement, dated June 22, 2011, between Liquidmetal Coatings, LLC, Liquidmetal Coatings Solutions, LLC and
Enterprise Bank & Trust (incorporated by reference from Exhibit 10.1 on the Form 10-Q filed on August 10, 2011).
10.18 Amendment No.1 to Restricted Stock Award Agreement, dated July 27, 2011, between Liquidmetal Technologies, Inc. and Thomas Steipp
(incorporated by reference from Exhibit 10.2 on the Form 10-Q filed on August 10, 2011).
10.19 Stock Purchase Agreement, dated August 5, 2011, between Liquidmetal Technologies, Inc. and Innovative Materials Groups, LLC (incorporated
by reference from Exhibit 10.3 on the Form 10-Q filed on August 10, 2011).
10.20** License Agreement, dated August 5, 2011, between Liquidmetal Technologies, Inc. and Innovative Materials Groups, LLC (incorporated by
reference from Exhibit 10.4*on the Form 10-Q filed on August 10, 2011).
10.21 Second Amended and Restated Operating Agreement of Liquidmetal Coatings, LLC, dated November 30, 2011 (incorporated by reference from
Exhibit 10.65 on the Form 10-K filed on March 30, 2012).
10.22 Second Amended and Restated License and Technical Support Agreement between Liquidmetal Technologies, Inc. and Liquidmetal Coatings,
LLC, dated November 30, 2011 (incorporated by reference from Exhibit 10.66 on the Form 10-K filed on March 30, 2012).
10.23 Form of 8% unsecured Promissory Note issued to Visser Precision Cast, LLC, dated January 17, 2012 (incorporated by reference from Exhibit
10.1 on the Form 10-Q filed on May 15, 2012).
10.24 Form of 8% unsecured Promissory Note issued to Visser Precision Cast, LLC, dated February 27, 2012
(incorporated by reference from Exhibit 10.2 on the Form 10-Q filed on May 15, 2012).
10.25 Form of 8% unsecured Promissory Note issued to Visser Precision Cast, LLC, dated March 28, 2012
(incorporated by reference from Exhibit 10.3 on the Form 10-Q filed on May 15, 2012).
10.26 Form of 8% unsecured Promissory Note issued to Visser Precision Cast, LLC, dated April 25, 2012
(incorporated by reference from Exhibit 10.4 on the Form 10-Q filed on May 15, 2012).
10.27* Liquidmetal Technologies, Inc. 2012 Equity Incentive Plan (incorporated by reference from Exhibit 10.1 to the Form 8-K filed on July 2, 2012).
10.28 Securities Purchase Agreement, dated as of July 2, 2012, by and among Liquidmetal Technologies, Inc. and each of the investors named on the
Schedule of Buyers attached thereto (incorporated by reference from Exhibit 10.1 to the Form 8-K filed on July 2, 2012).
10.29 Registration Rights Agreement, dated as of July 2, 2012, by and among Liquidmetal Technologies, Inc. and the investors named on the Schedule
of Buyers attached thereto (incorporated by reference from Exhibit 10.2 to the Form 8-K filed on July 2, 2012).
10.30 Form of Senior Convertible Note (incorporated by reference from Exhibit 10.3 to the Form 8-K filed on July 2, 2012).
10.31 Form of Warrant to Purchase Common Stock (incorporated by reference from Exhibit 10.4 to the Form 8-K filed on July 2, 2012).
10.32 (1) Master Transaction Agreement, dated as of June 1, 2012, between Liquidmetal Technologies, Inc. and Visser Precision Cast, LLC.
10.33** (1) Manufacturing Services Agreement, dated as of June 1, 2012, between Liquidmetal Technologies, Inc. and Visser Precision Cast, LLC.
10.34 (1) Subscription Agreement, dated as of June 1, 2012, between Liquidmetal Technologies, Inc. and Visser Precision Cast, LLC.
10.35 (1) Security Agreement, dated as of June 1, 2012, between Liquidmetal Technologies, Inc. and Visser Precision Cast, LLC.
10.36 (1) Registration Rights Agreement, dated as of June 1, 2012, between Liquidmetal Technologies, Inc. and Visser Precision Cast, LLC.
10.37 (1) VPC Sublicense Agreement, dated as of June 1, 2012, between Liquidmetal Technologies, Inc. and Visser Precision Cast, LLC.
10.38 (1) 6% Senior Secured Convertible Note, dated June 1, 2012, issued to Visser Precision Cast, LLC.
10.39 (1) Common Stock Purchase Warrant, dated June 1, 2012, issued to Visser Precision Cast, LLC.
10.40 (1) Common Stock Purchase Warrant, dated June 28, 2012, issued to Visser Precision Cast, LLC.
10.41 Amendment Number One to Master Transaction Agreement and Other Transaction Documents, dated June 15, 2012, between Apple Inc.,
Liquidmetal Technologies, Inc., Liquidmetal Coatings, LLC and Crucible Inctellectual Property, LLC.
16.1 Letter from Choi, Kim, Park, LLP (incorporated by reference from Exhibit 16.1 to the Form 8-K filed on December 8, 2011).
21.1 (1) Subsidiaries of the Registrant.
23.1 Consent of Registered Independent Public Accounting Firm, SingerLewak LLP.
23.2 Consent of Registered Independent Public Accounting Firm, Choi, Kim & Park, LLP.
23.3 (1) Consent of Foley & Lardner LLP (contained in Exhibit 5.1).
24.1 (1) Power of Attorney relating to subsequent amendments.
101 The following financial statements from Liquidmetal Technologies, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2011,
formatted in XBRL (eXtensible Business Reporting Language): (i) Condensed Consolidated Balance Sheets, (ii) Condensed Consolidated
Statements of Operations and Comprehensive Income (Loss), (iii) Condensed Consolidated Statements of Shareholder’s Deficiency and (iv)
Notes to Condensed Consolidated Financial Statements.
The following financial statements from Liquidmetal Technologies, Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2012
(unaudited), formatted in XBRL (eXtensible Business Reporting Language): (i) Condensed Consolidated Balance Sheets, (ii) Condensed
Consolidated Statement of Operations and Comprehensive Income (Loss), (iii) Condensed Consolidated Statements of Shareholders’ Deficiency
and (iv) Notes to Condensed Consolidated Financial Statements.
* Denotes a management contract or compensatory plan or arrangement.
** Portions of this exhibit have been omitted pursuant to a confidential treatment request. Omitted information has been filed separately
with the Securities and Exchange Commission.
(1) Previously filed
p.125
Exhibit 10.41
AMENDMENT NUMBER ONE TO
MASTER TRANSACTION AGREEMENT AND OTHER TRANSACTION DOCUMENTS
This Amendment Number One to Master Transaction Agreement and Other Transaction Documents (this “Amendment”) is entered into as of June
15, 2012 by and between Apple Inc., a California corporation (“Apple”), Liquidmetal Technologies, Inc., a Delaware corporation (“LMT”), Liquidmetal
Coatings, LLC, a Delaware limited liability company (“LMC”), and Crucible Intellectual Property, LLC, a Delaware limited liability company (“LMT-SPE”),
with reference to the following facts:
A. Apple, LMT, LMC and LMT-SPE have previously entered into that certain Master Transaction Agreement, made effective as of August
5, 2010 (as amended and modified, from time to time, the “MTA”).
B. Pursuant to the MTA, LMT and LMT-SPE entered that certain Contribution Agreement dated as of August 5, 2010 (as amended and
modified, from time to time, the “Contribution Agreement”) pursuant to which LMT agreed to contribute to LMT-SPE the LMT Technology at the Closing
Date and for eighteen (18) months thereafter.
C. Pursuant to the MTA, LMC and LMT entered that certain Assignment and Assumption Agreement dated as of August 5, 2010 (as
amended and modified, from time to time, the “Assignment Agreement”) pursuant to which LMC agreed to transfer to LMT the LMT Technology at the
Closing Date and for eighteen (18) months thereafter.
D. Pursuant to the MTA, LMT and Apple entered that certain Security Agreement dated as of August 5, 2010 (as amended and modified,
from time to time, the “LMT Security Agreement”) pursuant to which LMT granted a security interest in certain assets.
E. Pursuant to the MTA, LMT-SPE and Apple entered that certain Security Agreement dated as of August 5, 2010 (as amended and
modified, from time to time, the “LMT-SPE Security Agreement”) pursuant to which LMT-SPE granted a security interest in certain assets.
F. LMT has requested that Apple make certain amendments to the MTA, Contribution Agreement, and Assignment Agreement as provided
for and on the conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto amend
the agreements described in the recitals above, as follows:
1. DEFINITIONS. All initially capitalized terms used in this Amendment shall have the meanings given to them in the MTA unless
specifically defined herein.
2. AMENDMENTS.
(a) Section 1(a)(i) of the MTA is hereby amended replacing the first sentence thereof in its entirety with the following:
“‘LMT Technology’ shall mean (A) during the Capture Period any and all Intellectual Property and Intellectual Property Rights that, at any time
during the Capture Period, is: (I) owned or licensed (including, without limitation, sub-licensed) by LMT or LMC, or that LMT or LMC have a
right to use; or (II) owned or licensed (including without limitation sub-licensed) by LMT-SPE, or that LMT-SPE has a right to use, after being
transferred to LMT-SPE by LMT or LMC; and (B) during the Capture Period Extension any and all Intellectual Property and Intellectual Property
Rights that, at any time during the Capture Period Extension, is: (I) owned or licensed (including, without limitation, sub-licensed) by LMT, or that
LMT has a right to use; or (II) owned or licensed (including without limitation sub-licensed) by LMT-SPE, or that LMT-SPE has a right to use,
after being transferred to LMT-SPE by LMT.”
(b) Section 1(a) of the MTA is amended by adding at the end thereof new subsection (v), as follows:
“(v) ‘Capture Period Extension’ shall mean the period commencing on the day after the last day of the Capture Period and ending on February (c) Section 4(b) of the MTA is hereby amended by adding at the end of the first sentence thereof “and the Capture Period
Extension”.
(d) Section 4(c) of the MTA is hereby amended by adding the following immediately after the first sentence therein:
“Without limiting the preceding sentence, LMT shall cause each employee who contributes or will contribute to the development of LMT
Technology to execute and deliver to LMT-SPE an assignment agreement, in form and substance satisfactory to Apple, that recites that all LMT
Technology such employee creates, conceives of and invents prior to and during the Capture Period Extension shall be assigned to LMT-SPE.”
(e) Sections 4(d) and (f) of the MTA is hereby amended by replacing the words “Capture Period” in each place where used therein
with the words “Capture Period Extension”.
(f) Section 4(g) of the MTA is hereby amended by adding the following at the end thereof:
“Without limiting the preceding sentence, LMT and LMT-SPE shall not amend, modify, supplement, amend and restate or replace the LMT
License Agreement except (i) with the prior written consent of Apple or (ii) for the addition to the schedules attached thereto of Intellectual
Property Rights created or acquired during the Capture Period Extension.”
(g) The MTA is hereby amended by adding a new Section 9A immediately following Section 9, as follows:
“9A. Rights of First Notice and First Refusal.
“(a) Apple’s rights under this Section 9A will commence February 6, 2014 and expire February 5, 2016.
(b) Apple will have the right of first notice by LMT of any of the following activities that LMT may pursue with any third party
(including any Affiliate of LMT), which right of first notice may be exercised in accordance with Section 9A(c) below:
“(i) the sale, transfer or other assignment (except by non-exclusive license or exclusive license) of any Intellectual Property
Rights by LMT that have not been licensed by LMT to Apple; or
“(ii) the exclusive or non-exclusive license by LMT of any Intellectual Property Rights in any field of use relating to
Consumer Electronic Products owned, acquired, invented, conceived of, or otherwise developed in whole or in part by
LMT or any of its Affiliates after the Capture Period Extension.
“(c) Prior to LMT commencing any discussions covered by Apple’s rights described in Section 9A(b) with any third party, LMT
must first inform Apple (in writing) of its desire to enter into such discussions, and provide Apple ten (10) business days to
inform LMT whether it wishes to enter into such a transaction, and engage in good faith discussions with Apple for at least thirty
(30) business days (after Apple informs LMT of its desire to enter into such a transaction) toward such an agreement.
“(d) Apple will have the right of first refusal in the event of any of the following activities that LMT may agree to undertake with any
with any third party (including any Affiliate of LMT), which right of first refusal may be exercised in accordance with Section
9A(e) below:
“(i) the sale, transfer or other assignment (except by non-exclusive license or exclusive license) of any Intellectual Property
Rights by LMT that have not been licensed by LMT to Apple; or
“(ii) the exclusive or non-exclusive license by LMT of any Intellectual Property Rights in any field of use relating to
Consumer Electronic Products owned, acquired, invented, conceived of, or otherwise developed in whole or in part by
LMT or any of its Affiliates after the Capture Period Extension.
“(e) Prior to LMT entering into any agreement with any third party related, in whole or in part, to Apple’s rights described in Section
9A(d), LMT must first present Apple (in writing) a proposal to enter into an agreement on the same terms that LMT has finally
agreed with such third party; provide Apple with a full, complete and identical set of such agreement terms, and provide Apple
ten (10) business days to inform LMT whether it wishes to enter into such agreement with LMT on substantially the same or
better terms, when taken as a whole, as were offered to the third party, in which case LMT will, at Apple’s option, enter into the
proposed transaction with Apple (provided that, in the case of a non-exclusive license, the exercise of Apple’s option will not
preclude LMT from also entering into the proposed agreement with the third party).”
(h) Recital A of the Contribution Agreement is hereby amended by replacing the words “the date falling eighteen (18) months after
the Effective Date” in the fifth line thereof with “February 5, 2014”.
(i) Section 1 of the Contribution Agreement is hereby amended by replacing the words “the date falling eighteen (18) months after
the Effective Date” in lines three and four thereof with “February 5, 2014”
3. SECTION 16 OF MTA. Section 16 of the MTA is by this reference thereto incorporated into this Amendment as if restated in its entirety
herein, except that (i) each reference therein to the MTA shall be deemed a reference to this Amendment, mutatis mutandis, and (ii) and in the second
sentence of Section 16(e), the words “both parties” shall be replaced with “the party or parties against whom enforcement of the amendment is sought”. This
Amendment constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes and cancels all other prior agreements
and understandings of the parties in connection with subject matter.
4. EFFECTIVENESS. The effectiveness of this Amendment is hereby conditioned upon receipt by Apple of a fully executed copy of this
Amendment from each party hereto.
5. REAFFIRMATION. Each party hereto acknowledges and reaffirms (i) all of its obligations and duties under the Transaction Documents,
and (ii) that the Apple has and shall continue to have valid, perfected Liens in the Collateral as provided in the LMT Security Agreement and the LMT-SPE
Security Agreement upon the terms and conditions set forth therein.
6. LIMITED EFFECT. In the event of a conflict between the terms and provisions of this Amendment and the terms and provisions of the
Transaction Documents, the terms and provisions of this Amendment shall govern. In all other respects, the Transaction Documents, as amended and
supplemented hereby, shall remain in full force and effect.
7. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any number of counterparts and by different parties on
separate counterparts, each of which when so executed and delivered shall be deemed to be an original. All such counterparts, taken together, shall constitute
but one and the same Amendment. This Amendment shall become effective upon the execution of a counterpart of this Amendment by each of the parties
hereto. This Amendment is a Transaction Document and is subject to all the terms and conditions, and entitled to all the protections, applicable to Transaction
Documents generally.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first set forth above.
APPLE INC.,
a California corporation
By: /s/ Zadesky
Name: Zadesky
Title: VP Product Design
LIQUIDMETAL TECHNOLOGIES, INC.
By: /s/ Tony Chung
Name: Tony Chung
Title: Chief Financial Officer
LIQUIDMETAL COATINGS, LLC
By: /s/ Larry Buffington
Name: Larry Buffington
Title: President/CEO
CRUCIBLE INTELLECTUAL PROPERTY, LLC
By: /s/ Ricardo Salas
Name: Ricardo Salas
Title: President
Amendment Number One to Master Transaction Agreement
p.130
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use in this Amendment No. 1 to Registration Statement (333-182729) on Form S-1 of Liquidmetal Technologies, Inc. and subsidiaries of
our report dated March 30, 2012, relating to our audit of the consolidated financial statements, appearing in the Prospectus, which is part of this Registration
Statement. Our report dated March 30, 2012, relating to the consolidated financial statements includes an emphasis paragraph relating to an uncertainty as to
the Company's ability to continue as a going concern and an explanatory paragraph relating to the adjustments necessary to restate the warrant and earnings
per share information for the 2010 consolidated financial statements.
We also consent to the reference to our firm under the caption "Experts" in the Prospectus.
/s/ SingerLewak LLP
Los Angeles, California
August 2, 2012
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