Unassociated Document


    Exhibit
10.5

     

    CONSENT
AGREEMENT

     

    THIS CONSENT AGREEMENT (this
“Agreement”) is made and entered into as of November 2, 20101, by and
between LIQUIDMETAL
TECHNOLOGIES, INC. a Delaware corporation
(“Company”),
having its principal office at 30452 Esperanza, Rancho Santa Margarita, CA 92688
, and the undersigned holders of preferred stock of the Company (“Holders”).

    


    RECITALS:

     

    
      	
               
      

            	
              A.

            	
              On
      May 1, 2009, the Company filed with the Delaware Secretary of State a
      Certificate of
      Designations, Preferences and Rights of Series A Preferred Stock
      (the “Designation”) designating and setting forth the preferences and
      rights of the Company’s Series A-1 Preferred Stock (“Series A-1 Preferred
      Stock”) and Series A-2 Preferred Stock (“Series A-2 Preferred
      Stock”, and together with the Series A-1 Preferred Stock, the
      “Series A
      Preferred Stock”).

            


    

     

    
      	
               
      

            	
              B.

            	
              Holders
      are collectively the owners of (i) more than two-thirds of the total
      number of shares of Series A-1 Preferred Stock outstanding as of the date
      of this Agreement on both an actual and as-converted basis, (ii) more than
      two-thirds of the total number of shares of Series A-2 Preferred Stock
      outstanding as of the date of this Agreement on both an actual and
      as-converted basis, and (iii) more than two-thirds of the total combined
      number of shares of Series A-1 Preferred Stock and Series A-2 Preferred
      Stock outstanding as of the date of this Agreement on both an actual and
      as-converted basis..

            


    

     

    
      	
               
      

            	
              C.

            	
              Holders
      desire to hereby consent to an amendment and restatement of the
      Designation upon the terms and conditions set forth herein (the “Amended
      Designation”).

            


    

     

    
      	
               
      

            	
              D.

            	
              This
      Agreement constitutes the consent to and approval of the Amended
      Designation by the holders of the Series A Preferred Stock as required
      under Sections 6 and 7 of the Designation, Article VIII of the Company’s
      Certificate of Incorporation, as amended, and Section 242 of the Delaware
      General Corporation Law.

            


    

     

    
      	
               
      

            	
              E.

            	
              In
      connection with each Holder’s original purchase of the Series A Preferred
      Stock, the Company previously issued to the Holder the common stock
      purchase warrants indicated next to the Holder’s name Exhibit
      A hereto (the “Warrants”) upon
      the terms and conditions set forth in one or more Common Stock Purchase
      Warrants dated May 1, 2009 (the “Warrant
      Agreements”).

            


    

     

    NOW, THEREFORE, in
consideration of the premises and covenants contained in this Agreement, the
parties hereto, intending to be legally bound, agree as follows:

     

      
        

      

    

    1 The
agreement will be dated on the date on which the Company receives the last
signature necessary for approval.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    1.      Approval
of Amended Designation.  In consideration of the agreement by
the Company set forth in Section 2 of this Agreement, each Holder hereby
approves and consents to the Amended Designation, which shall be in
substantially the form attached hereto as Exhibit
B.  For purposes of this Agreement, each Holder hereby
represents and warrants to the Company that such Holder is the record and
beneficial owner of the shares of Series A Preferred Stock set forth next to
such Holder’s name on Exhibit A hereto and
that such Holder has the power and authority to enter into this
Agreement.

     

    2.      Amendment
of Warrant Agreements.  In consideration of each Holder’s
consent to, and approval of, the Amended Designation in substantially the form
attached hereto as Exhibit A, the
Company hereby agrees that each Holder’s Warrant Agreements shall, contingent
upon and effective as of the date of the filing and acceptance of the Amended
Designation by the Delaware Secretary of State (the “Effective Date”), be
amended as follows:

     

    a.      Expiration
Date.  The Expiration Date (as defined in the Warrant
Agreements) is hereby extended to July 15, 2015.

     

    b.      Certain
Anti-Dilution Rights.  Section 9(c) of the Warrant Agreements
is hereby deleted in its entirety and replaced with the following
text:   “Section 9(c).   [Intentionally left
blank].”

     

    Except to
the extent modified by the foregoing amendments, the Holder’s Warrant Agreements
shall continue to remain in full force and effect after the Effective Date in
accordance with the terms thereof.

     

    3.      Miscellaneous.

     

    a.      Confidentiality.  Each
Holder acknowledges that, until such time as the Company files a Form 8-K with
the Securities and Exchange Commission disclosing this Agreement and the Amended
Designation and the terms thereof, the existence of this Agreement and the
Amended Designation and the terms thereof are material nonpublic information
relating to the Company, and each Holder will accordingly (i) refrain from
disclosing to third parties the existence of this Agreement and the Amended
Designation and the terms thereof prior to the filing of such Form 8-K and (ii)
comply with all applicable securities laws with respect to the possession of
material nonpublic information.

     

    b.      Counterparts;
Faxed and Scanned Signatures.  This Agreement may be executed
in counterparts, each of which shall be deemed an original of this Agreement and
all of which, when taken together, shall be deemed to constitute one and the
same Agreement.  The parties agree that this Agreement may be executed
by each party signing one original and providing a facsimile (fax) copy, or
scanned copy by .pdf, of the signature page to the other party, provided that
each party agrees to make its document with the original signature available to
the other party upon request, and further provided that the parties agree that
the fax or scanned signature shall be treated as if it were an original
signature, and neither party shall contest the validity of this Agreement based
on the use of fax or scanned signatures.

     

    c.      Entire
Agreement.  This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof.

     

    d.      Governing
Law.  This Agreement shall be governed by the laws of the State
of Delaware, without giving effect to the principles of conflict of laws thereof
and without regard to where the Agreement is executed or to be
performed.

     

    e.      Severability.  In
the event any provision of this Agreement is found to be unenforceable, void,
invalid or unreasonable in scope, such provision shall be modified to the extent
necessary to make it enforceable, and as so modified, this Agreement shall
remain in full force and effect.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    f.      Successors and
Assigns.  The rights and obligations of the parties under this
Agreement shall inure to the benefit of, and shall be binding upon, their
respective heirs, executors, administrators, successors, assigns, subsidiaries,
affiliates, directors, officers, employees, representatives and agents, as
applicable.

     

    [signatures
to follow]

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    COMPANY
SIGNATURE PAGE TO CONSENT AGREEMENT

     

    IN WITNESS WHEREOF, the
Company has executed this Agreement as of the day and year first above
written.

    


    
      
        
          	
                  LIQUIDMETAL
      TECHNOLOGIES, INC.

                
	 
      
	
                  By:

                	
                  /s/
      Thomas Steipp

                	 
      
	 
      	 
      	 
      
	
                  Name:

                	
                  Thomas
      Steipp

                	 
      
	 
      	 
      	 
      
	
                  Title:

                	
                  Chief
      Executive Officer

                	 
      


        

      

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    HOLDER
COUNTERPART SIGNATURE PAGE TO CONSENT AGREEMENT

     

    IN WITNESS WHEREOF, the
undersigned Holder has executed this Agreement as of the day and year first
above written.

    


    
      
        
          
            
              
                	
                        HOLDER

                      
	 
      
	
                        Name of Holder:

                      	 
      	 
      


              

            

          

        

      

    

    


    
      
        
          
            
              
                	
                        By:

                      	 
      	 
      
	 
      
	
                        Name:

                      	 
      	 
      
	 
      
	
                        Title:

                      	 
      	 
      


              

            

          

        

      

    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    EXHIBIT
A

    To

    Consent
Agreement

    


    
      
        
          
            
              
                
                  	
                           

                        	 	
                          Series A-1

                          Preferred Stock

                        	 	 	
                          Series A-2

                          Preferred Stock

                        	 	 	
                          Number of shares of

                          Common Stock subject to

                        	 
	
                          Name of Holder 
      

                        	 	
                          Actual

                        	 	 	
                          Actual

                        	 	 	
                          Warrants

                        	 
	
                          Carlyle
      Liquid Holdings, LLC

                        	 	 	500,000	 	 	 	888,743	 	 	 	23,060,556	 
	
                          Carlyle
      Liquid, LLC

                        	 	 	 	 	 	 	467,612	 	 	 	5,422,209	 
	
                          Carlyle
      Holdings, LLC

                        	 	 	 	 	 	 	58,108	 	 	 	673,785	 
	
                          Castlerigg
      Master Investment Ltd.

                        	 	 	 	 	 	 	25,000	 	 	 	1,834,949	 
	
                          Abdi
      Mahamedi

                        	 	 	10,000	 	 	 	116,215	 	 	 	1,602,672	 
	
                          Ricardo
      A. Salas

                        	 	 	50,000	 	 	 	82,333	 	 	 	2,230,206	 
	
                          Grace
      Partners, LLC

                        	 	 	 	 	 	 	108,498	 	 	 	1,258,083	 
	
                          Ed
      Neugeboren

                        	 	 	 	 	 	 	606	 	 	 	7,025	 
	
                          Atlantic
      Realty

                        	 	 	 	 	 	 	58,108	 	 	 	673,785	 
	
                          Edmond
      J. Harris

                        	 	 	10,000	 	 	 	 	 	 	 	255,103	 
	
                          Tjoa
      Thian Song

                        	 	 	60,000	 	 	 	 	 	 	 	1,530,613	 
	
                          John
      Kang

                        	 	 	20,000	 	 	 	 	 	 	 	510,205	 
	
                          Tony
      Chung

                        	 	 	10,000	 	 	 	 	 	 	 	255,103	 
	
                          Thomas
      Steipp

                        	 	 	20,000	 	 	 	 	 	 	 	510,205	 


                

              

            

             

            
              
                
                

              

              
                
                

                
                  

                

              

              
                
                

              

            

             

          

        

      

    

    EXHIBIT B TO CONSENT
AGREEMENT

    


    FORM
OF AMENDED DESIGNATION