Settlement Agreement - Liquidmetal Korea Co. Ltd. and Growell Metal Co. Ltd.
SETTLEMENT AGREEMENT
This settlement agreement (this "Settlement Agreement") is made and entered into
on January 10, 2004, by and between Liquidmetal Korea Co., Ltd., a company
incorporated and existing under the laws of Korea, having its principal office
at 884, Uhyun Hansan Industrial Complex, Uhyun-ri, Chungbook-myun, Pyungtaek
City, Kyunggi Province, Republic of Korea ("Liquidmetal Korea")and Growell Metal
Co., Ltd., a company incorporated and existing under the laws of Korea, having
its principal office at 166, Shinhang-ri, Doonpo-myun, Ansan City, Choongnam
Province, Republic of Korea ("Growell Metal").
RECITALS
WHEREAS, Liquidmetal Korea and Growell Metal have entered into a product supply
agreement dated June 14, 2002 for the supply by Growell Metal of certain
Liquidmetal alloy products to Liquidmetal Korea (the "Product Supply
Agreement");
WHEREAS, in connection with the relationship established by the Product Supply
Agreement, Growell Metal has purchased from Liquidmetal Korea, pursuant to
various purchase orders, certain equipment used in the production of the
above-referenced Liquidmetal alloy products;
WHEREAS, Liquidmetal Korea and Growell Metal have entered into a diecasting
technology transfer and equipment sales agreement dated March 24, 2003 for the
transfer and sale by Liquidmetal Korea of certain diecasting technology and
equipments to Growell Metal (the "Diecasting Technology Transfer and Equipment
Sales Agreement");
WHEREAS, certain disputes arose thereafter between the parties in connection
with the Product Supply Agreement (the "Dispute");
WHEREAS, Growell Metal sent notice letters dated November 4, 2003 and December
11, 2003 to Liquidmetal Korea in which Growell Metal sought, among other things,
to pursue claims against Liquidmetal Korea arising from the Product Supply
Agreement (the "Claim");
WHEREAS, Growell Metal owes Liquidmetal Korea a payment in the amount of
KRW2,454,000,000 for the purchase by Growell Metal of die casting machines from
Liquidmetal Korea on or around March 2003 pursuant to the Diecasting Technology
Transfer and Equipment Sales Agreement (the "Receivable"); and
WHEREAS, the parties now desire to enter into this Settlement Agreement for an
amicable resolution of any and all disputes between them, including without
limitation the disputes relating to the Product Supply Agreement.
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NOW, THEREFORE, in consideration of the mutual premises and covenants set forth
herein, the parties agree as follows.
ARTICLE 1 DEFINITIONS
In this Agreement, unless the context requires otherwise:
"AFFILIATE" means any person directly or indirectly controlling, directly or
indirectly controlled by, or under direct or indirect common control with, a
party hereto and, for the avoidance of any doubt, includes Liquidmetal
Technologies, Inc. ("Liquidmetal Technologies") and Growell Telecom and Growell
Electronics. For purposes of this definition, "control" (including "CONTROLLED
BY" and "UNDER COMMON CONTROL WITH") means the power, directly or indirectly, to
direct or cause the direction of the management and policies of any person
whether through the ownership of voting securities or to by contract or
otherwise, provided that, in any event, any person which owns directly or
indirectly fifty percent (50%) or more of the securities having ordinary voting
power for the election of directors or other governing body of a corporation or
fifty percent (50%) or more of the partnership or other ownership interests of
any other person will be deemed to control such corporation or other person;
provided, that the term "PERSON" shall include any individual, company, body
corporate or unincorporated or other juridical person, partnership, firm, joint
venture or trust or any federation, state or subdivision thereof or any
government or agency of any thereof.
"ENCUMBRANCE" means (i) any mortgage, charge, pledge, lien, encumbrance,
hypothecation or other security interest or security arrangement of any kind,
(ii) any arrangement whereby any rights are subordinated to any rights of any
third party, (iii) any title transfer arrangements, and (d) any contractual
right of set-off.
"EQUIPMENTS" mean the equipments owned by Growell Metal which are identified in
Attachment 1 hereto.
"INVENTORY" means the inventory owned by Growell Metal which are identified in
Attachment 2 hereto.
ARTICLE 2 TRANSFER OF OWNERSHIP TO EQUIPMENTS
Growell Metal shall transfer to Liquidmetal Korea the ownership to the
Equipments by delivering the Equipments to a place designated by Liquidmetal
Korea within 10 days from the date hereof.
In consideration of the aforesaid ownership transfer, Liquidmetal Korea shall
pay to Growell Metal the settlement amount for the Equipments identified in
Attachment 1 hereto in the manner specified in Articles 5.2 and 5.3 below.
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ARTICLE 3 TRANSFER OF OWNERSHIP TO INVENTORY
Growell Metal shall transfer to Liquidmetal Korea the ownership to the Inventory
by delivering the Inventory to a place designated by Liquidmetal Korea within 10
days from the date hereof.
In consideration of the aforesaid ownership transfer, Liquidmetal Korea shall
pay to Growell Metal Growell's total book value of the Inventory identified in
Attachment 2 hereto in the manner specified in Articles 5.2 and 5.3 below.
ARTICLE 4 RECEIVABLE
Growell Metal shall pay to Liquidmetal Korea the amount of the Receivable
mentioned in the above Recitals in the manner specified in Article 5.1 below.
ARTICLE 5 PAYMENTS
5.1 Within 10 days from the date hereof, Growell Metal shall pay in cash (i)
the amount of the Receivable to Liquidmetal Korea, and (ii) to Liquidmetal
Korea's subsidiary Dongyang, the amount of KRW 184,950,000 currently owed
by Growell Metal to Dongyang.
5.2 Within 10 days of the receipt by Liquidmetal Korea of the amount of the
Receivable, Liquidmetal Korea shall pay in cash to Growell Metal
KRW2,454,000,000 of the settlement amount for the Equipments and Growell's
total book value of the Inventory due and payable under Articles 2 and 3.
On such same date, Liquidmetal Korea shall also pay in cash to Growell
Metal the amount of KRW 202,029,001 currently owed by Liquidmetal Korea to
Growell Metal.
5.3 The remaining KRW 3,383,035,098 due and payable under Articles 2 and 3
shall be paid in full by or before December 31, 2004 in the form of either
cash or shares of common stock of Liquidmetal Technologies at the
discretion of Liquidmetal Korea. For this purpose, the shares of
Liquidmetal Technologies common stock shall be deemed to have a value
equal to the average closing price of such common stock on the Nasdaq
National Market (or other principal market on which the stock is then
trading or listed) for the five (5) trading days immediately preceding the
date on which payment is being made. For purposes of calculating the
number of shares to be issued in any stock payment hereunder, the
remaining amount due and payable in Korean Won by Liquidmetal Korea will
be converted into U.S. dollars at the exchange rate in effect on the date
of payment.
ARTICLE 6 SETOFF OF PAYMENT OBLIGATIONS OF PARTIES
The parties have chosen to setoff the payments to be made under Articles 5.1 and
5.2 against each other (the "Setoff Agreement"). The Setoff Agreement is
attached to this Settlement Agreement as Attachment 3.
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ARTICLE 7 VALUE-ADDED TAXES
Liquidmetal Korea shall bear allvalue-added taxes ("VAT") imposed by the tax
authorities on the transfer of ownership to the Equipments and the Inventory
from Growell Metal to Liquidmetal Korea, and Liquidmetal Korea will indemnify
Growell Metal from and against any and all damages, fees, or penalties arising
from Liquidmetal Korea's failure to timely pay the amount of this VAT.
ARTICLE 8 REPRESENTATIONS AND WARRANTIES
Growell Metal represents and warrants to Liquidmetal Korea that (i) no
Encumbrance will exist over all or any part of the Equipments and the Inventory
as of their delivery date, and (ii) there has been no adverse change in the
physical condition of the Equipments and Inventory since the time that they were
inspected by a representative of Liquidmetal Korea on January 2, 2004 until the
signing of this Settlement Agreement. Growell Metal will use reasonable and
prudent care (based on standards generally used in the industry) in
disassembling the Equipments, preparing the Equipments and Inventory for
delivery, and in delivering the Equipments and Inventory to Liquidmetal Korea
(if Growell Metal performs the delivery).
ARTICLE 9 RELEASE
Each of Liquidmetal Korea and Growell Metal (each, the "RELEASOR") hereby agrees
to absolutely, fully and forever release, waive, relinquish and discharge any
and all claims which it may have against the other party and the other party's
former or present officers, managers, directors, agents, employees, Affiliates,
assigns and successors and/or any other interested parties (the "RELEASEE")
arising from (i) any and all claims whatsoever that the Releasor may have had,
presently has or in the future may have against any Releasee and which arise,
have arisen or may hereinafter arise, in whole or in part, out of, on account of
or in connection with the Product Supply Agreement, Dispute, Claim, Receivable,
and the Diecasting Technology Transfer and Equipment Sales Agreement (except for
any claims by Liquidmetal Korea for future royalties thereunder), and (ii) any
and all other claims whatsoever, whether known or unknown, that Releasor or its
Affiliates may have had or has against the Releasee at any time from the
beginning of time up to and including the date hereof, including without
limitation (A) any claims by Growell Electronics Inc. against Liquidmetal Korea,
and (B) any claims against Liquidmetal Technologies under the Liquidmetal
Coatings International Distributor Agreement dated November 16, 2003. With
respect to the releases mentioned in this Article 9, the Releasor agrees to take
any actions necessary to cause its Affiliates to comply with such release and
hereby agrees to indemnify and defend the Releasee from any such released claim
brought by an Affiliate of the Releasor.
ARTICLE 10 TERMINATION OF EXISTING AGREEMENTS
All existing agreements between Liquidmetal Korea and/or its Affiliate, on the
one hand, and Growell
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and/or its Affiliate, on the other hand, shall be terminated as of the date
hereof with no outstanding or remaining rights and obligations of the parties
thereunder; provided, however, that notwithstanding anything to the contrary
herein, the Nondisclosure and Confidentiality Agreement between Growell Industry
and Liquidmetal Technologies dated February 23, 2002, the Mutual Nondisclosure
Agreement between Growell Metal and Liquidmetal Technologies dated September 29,
2003, the Liquidmetal Coatings International Distributor Agreement between the
parties dated November 16, 2003, and the Diecasting Technology Transfer and
Equipment Sales Agreement shall continue to remain effective after the date
hereof (subject to the release set forth in Article 9) (collectively, the
"Continuing Agreements"). With respect to the Continuing Agreements, Growell
Metal represents and warrants that it is not aware of any current or prior facts
or circumstances that would constitute a breach, now or in the future, by
Liquidmetal Korea or its Affiliates under any Continuing Agreements.
Additionally, the parties acknowledge that Attachments 6, 7, 8, and 9 contain
the true, complete, and correct copies of the Continuing Agreements that will
remain in effect, respectively, and that there are no other agreements or
documents relating to the subject matter of the Continuing Agreements.
ARTICLE 11 EFFECTIVE DATE
This Agreement shall become effective upon signing by the parties.
ARTICLE 12 MISCELLANEOUS
12.1 Guaranty. Pursuant to the Guaranty Agreement attached to this Agreement as
Attachment 5, Liquidmetal Technologies irrevocably and unconditionally
guarantees to Growell Metal, payment when due, of any and all liabilities
under this Settlement Agreement of Liquidmetal Korea to Growell Metal,
together with any and all attorney's fees and costs and expenses of
collection incurred by Growell Metal in enforcing any of such liabilities.
Additionally, Pursuant to the Guaranty Agreement attached as Attachment 6,
Growell Industry Inc. irrevocably and unconditionally guarantees to
Liquidmetal Korea any and all obligations and liabilities under this
Settlement Agreement of Growell Metal, together with any and all
attorney's fees and costs and expenses of collection incurred by
Liquidmetal Korea or Liquidmetal Technologies in enforcing any of such
liabilities.
12.2 Binding Effect on Successors This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors.
12.3 Severability If any one or more of the provisions contained in this
Agreement or any document executed in connection herewith shall be
invalid, illegal or unenforceable in any respect under any applicable
laws, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired;
provided that in such case the parties oblige themselves to use their best
effort to achieve the purpose of the invalid provisions by a new legally
valid stipulation.
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12.4 Entire Agreement This Agreement supersedes all previous representations,
understandings or agreements, oral or written, among the parties with
respect to the subject matter hereof, and it contains the entire
understanding of the parties. No changes, alterations or modifications
hereto shall be effective unless made in writing and signed by the
parties.
12.5 Dispute Resolution The Seoul District Court shall have exclusive
jurisdiction over actions related to disputes arising between the parties
in connection with this Agreement.
12.6 Governing Law The validity, performance, construction and effect of this
Agreement shall be governed by the laws of the Republic of Korea.
12.7. English Language. This Agreement is written in the English language, and
if either party translates this Agreement into a language other than
English, the parties agree that the English version of this Agreement will
control.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives on the day and year first written above.
LIQUIDMETAL KOREA CO., LTD. GROWELL METAL CO., LTD.
/s/ YM Lee /s/ JS Park
YM Lee Jeong Seo Park
Chief Financial Officer Chairman and CEO
January 11, 2004 January 11, 2004
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ATTACHMENT 1
EQUIPMENTS
Quantity Settlement Amount
Items Manufacturer (EA) (KRW)
----- ------------ ---- -----
1 Ace Vacuum 1 399,769,000
2 Dongyang 8 822,000,000
3 Samhan Vacuum 1 536,500,000
4 Samhan Vacuum 1 536,500,000
5 PARTECH 1 310,000,000
6 Seoul Vacuum 1 520,000,000
7 Seoul Vacuum 1 340,000,000
8 Han Kook Supersonic Waves 3 168,000,000
9 PARTECH 1 34,000,000
10 PARTECH 1 47,000,000
11 Richo 3 228,000,000
12 Ulpark (Janpan) 1 23,000,000
13 Dust Collector 4 9,120,000
-------------
Total 3,973,889,000
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ATTACHMENT 2
INVENTORY
Quantity Growell's Book Value*
Items (KG) As of Sept. 30, 2003
----- ---- --------------------
Inventory 24,761.72 1,863,146,098
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ATTACHMENT 3
SETOFF AGREEMENT
This setoff agreement (this "Setoff Agreement") is made and entered into on
January 10, 2004 by and between Liquidmetal Korea Co., Ltd., a company
incorporated and existing under the laws of Korea, having its principal office
at 884, Uhyun Hansan Industrial Complex, Uhyun-ri, Chungbook-myun, Pyungtaek
City, Kyunggi Province, Republic of Korea ("Liquidmetal Korea") and Growell
Metal Co., Ltd., a company incorporated and existing under the laws of Korea,
having its principal office at 166, Shinhang-ri, Doonpo-myun, Ansan City,
Choongnam Province, Republic of Korea ("Growell Metal").
RECITALS
WHEREAS, Liquidmetal Korea and Growell Metal have entered into a settlement
agreement dated January 3, 2004, for the settlement of certain disputes between
the parties (the "Settlement Agreement"); and
WHEREAS, Liquidmetal Korea and Growell Metal desire to setoff the payments to be
made by the parties under Articles 5.1 and 5.2 of the Settlement Agreement
against each other.
NOW, THEREFORE, the parties agree as follows.
ARTICLE 1 SETOFF
Pursuant to Article 6 of the Settlement Agreement, Liquidmetal Korea and Growell
Metal hereby agree to setoff Growell Metal's payment obligation to Liquidmetal
Korea specified in Article 5.1 of the Settlement Agreement against Liquidmetal
Korea's payment obligation to Growell Metal specified in Article 5.2 of the
Settlement Agreement. As a result, the parties' respective payment obligation
owed to each other under Articles 5.1 and 5.2 of the Settlement Agreement will
be reduced by W2,638,950,000, resulting in (i) a balance of W0 due from Growell
Metal to Liquidmetal Korea under Article 5.1, and (ii) a net cash payment due
under Article 5.2 from Liquidmetal Korea to Growell Metal in the amount of
W17,079,001.
IN WITNESS WHEREOF, the parties have caused this Setoff Agreement to be executed
by their duly authorized representatives on the day and year first written
above.
LIQUIDMETAL KOREA CO., LTD. GROWELL METAL CO., LTD.
s/ YM Lee /s/ JS Park
YM Lee Jeong Seo Park
Chief Financial Officer Chairman and CEO
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ATTACHMENT 4
GUARANTY AGREEMENT
This Guaranty Agreement ("Guaranty") is made and entered into on January
10, 2004, by and between Liquidmetal Technologies Inc., a company incorporated
and existing under the laws of the State of Delaware, having its principal
office at 25800 Commercentre Dr., Suite 100, Lake Forest, California 92630,
U.S.A. ("Guarantor" or "Liquidmetal Technologies") and Growell Metal Co., Ltd.,
a company incorporated and existing under the laws of Korea, having its
principal office at 166, Shinhang-ri, Doonpo-myun, Ansan City, Choongnam
Province, Republic of Korea ("Beneficiary" or "Growell Metal").
WHEREAS, this Guaranty is provided pursuant to the Settlement Agreement
made and entered into on January 3, 2004, by and between and between Liquidmetal
Korea Co., Ltd., a company incorporated and existing under the laws of Korea,
having its principal office at 884, Uhyun Hansan Industrial Complex, Uhyun-ri,
Chungbook-myun, Pyungtaek City, Kyunggi Province, Republic of Korea
("Liquidmetal Korea"), Liquidmetal Technologies and Growell Metal (the
"Settlement Agreement").
NOW, THEREFORE, Guarantor covenants and agrees as follows:
SECTION 1. Guaranty. Guarantor, hereby unconditionally and irrevocably
guarantees to Beneficiary, the following obligations (collectively, the
"Guaranteed Obligations"):
(a) the due, punctual and full payment by Liquidmetal Korea of KRW
3,383,035,098 (including, without limitation, amounts payable as damages in case
of default) to be paid by Liquidmetal Korea to Beneficiary pursuant to the
Settlement Agreement; and
(b) the due, prompt and faithful performance of, and compliance with, all
other obligations, covenants, terms, conditions and undertakings of Liquidmetal
Korea in favor of the Beneficiary contained in the Settlement Agreement.
Guarantor further agrees to pay any and all reasonable costs and expenses
(including reasonable fees and disbursements of counsel) that may be paid or
actually incurred by the Beneficiary in collecting any Guaranteed Obligations
and/or in preserving or enforcing any rights under this Guaranty or under the
Guaranteed Obligations.
This Guaranty is a guaranty of payment, performance and compliance and not
of collectability, is in no way conditioned or contingent upon any attempt to
collect from or enforce performance or compliance by Liquidmetal Korea or upon
any other event, contingency or circumstance whatsoever.
SECTION 2. Bankruptcy. In the event of Liquidmetal Korea's rejection of
the Settlement Agreement in a bankruptcy or insolvency proceeding, Guarantor
agrees that it will pay forthwith all payments required to be made by
Liquidmetal Korea under the Settlement Agreement as though the rejection had not
occurred.
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SECTION 3. Guarantor's Guaranteed Obligations Unconditional. The covenants
and agreements of Guarantor set forth in this Guaranty shall be primary
obligations of Guarantor, and such obligations shall be continuing, absolute and
unconditional, shall not be subject to any counterclaim, setoff, deduction,
diminution, abatement, recoupment, suspension, deferment, reduction or defense,
and shall not be released, discharged or in any way affected by, any
circumstance or condition whatsoever (whether or not Liquidmetal Korea,
Guarantor, or such other Person shall have any knowledge or notice thereof)
including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or
renewal to or of or other change in the Guaranteed Obligations or the Settlement
Agreement, or of any interest therein or any furnishing or acceptance of
security for, guaranty of or right of offset with respect to, any of the
Guaranteed Obligations;
(b) any failure, omission or delay on the part of either Liquidmetal
Korea or the Beneficiary to conform or comply with any term of any instrument or
agreement referred to in clause (a) above;
(c) any changes to any relevant payment dates, payment term or the
maturity date;
(d) any waiver, consent, extension, indulgence, compromise, release
or other action or inaction under or in respect of any instrument, agreement,
guaranty, or security referred to in clause (a) above or any obligation or
liability of Liquidmetal Korea or the Beneficiary, or any exercise or
non-exercise the Beneficiary of any right, remedy, power or privilege under or
in respect of any such instrument, agreement, guaranty, right of offset or
security or any such obligation or liability;
(e) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding with respect to
either Liquidmetal Korea or the Beneficiary, or any action taken by any trustee
or receiver or by any court in any such proceeding, or any of their respective
properties or creditors or the imposition of any stay or injunction in
connection with any such proceeding;
(f) any merger or consolidation of either Liquidmetal Korea or
Guarantor into or with any other person or entity or any sale, lease or transfer
of any of the assets of either Liquidmetal Korea or Guarantor to any other
person or entity;
(g) any change in the ownership of or any corporate change in
Liquidmetal Korea or Guarantor; or
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(i) any other occurrence or circumstance whatsoever, whether similar
or dissimilar to the foregoing and any other circumstance that might otherwise
constitute a legal or equitable defense or discharge of the liabilities of a
guarantor or surety or that might otherwise limit recourse against Guarantor.
The obligations of Guarantor set forth herein constitute the full recourse
obligations of Guarantor enforceable against it to the full extent of all its
assets and properties. Notwithstanding the foregoing, any defense available to
Liquidmetal Korea with respect to its performance under the Guaranteed
Obligations shall also constitute a defense of Guarantor hereunder.
SECTION 4. Other Agreements. Guarantor agrees that this Guaranty shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of Liquidmetal Korea is rescinded or must be otherwise restored by
the Beneficiary, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise.
SECTION 5. Subrogation, etc. Guarantor will not exercise any rights which
it may acquire by way of rights of subrogation under this Guaranty, by any
payment made hereunder or otherwise, until the prior payment, in full and in
cash, of all Guaranteed Obligations and other amounts owing by Guarantor
hereunder. Any amount paid to Guarantor on account of any such subrogation
rights prior to the payment in full of all Guaranteed Obligations and other
amounts shall be held in trust for the benefit of the Beneficiary and credited
and applied against the Guaranteed Obligations.
SECTION 6. Term of Guaranty. This Guaranty and all guaranties, covenants
and agreements of Guarantor contained herein, shall continue in full force and
effect and shall not be discharged until such time as all the Guaranteed
Obligations shall be indefeasibly paid in full in cash or stock and all the
agreements of Liquidmetal Korea and Guarantor hereunder and under the Settlement
Agreement shall have been duly performed. If, as a result of any bankruptcy,
dissolution, reorganization, insolvency, arrangement or liquidation proceedings
(or proceedings similar in purpose or effect) or if for any other reason, any
payment received by the Beneficiary in respect of the Guaranteed Obligations is
rescinded or must be returned by the Beneficiary, this Guaranty shall continue
to be effective as if such payment had not been made and, in any event, as
provided in the preceding sentence.
SECTION 7. Severability of this Guaranty. In case any provisions of this
Guaranty or any application thereof shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions and
statements and any other application thereof shall not in any way be affected or
impaired thereby. To the extent permitted by law, Guarantor hereby waives any
provision of law that renders any term or provision hereof invalid or
unenforceable in any respect.
SECTION 8. Miscellaneous. This Guaranty shall be binding upon Guarantor
and its successors, transferees and assigns and inure to the benefit of and be
enforceable by the respective
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successors, transferees, and assigns of the Beneficiary, provided, however, that
Guarantor may not delegate any of its obligations hereunder. This Guaranty may
be executed in any number of counterparts and by different parties hereto on
separate counterparts, each executed counterpart constituting an original, but
all of which together shall constitute one agreement.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed as
of the date first above written.
LIQUIDMETAL TECHNOLOGIES INC.
By: /s/ John Kang
Name: John Kang
Title: Chairman and CEO
GROWELL METAL CO., LTD.
By: /s/ JS Park
Name: Jeong Seo Park
Title: Chairman and CEO
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Attachment 5
GUARANTY AGREEMENT
This Guaranty Agreement ("Guaranty") is made and entered into on January
10, 2004, by and between Liquidmetal Korea Co., Ltd., a company incorporated and
existing under the laws of Korea, having its principal office at 884, Uhyun
Hansan Industrial Complex, Uhyun-ri, Chungbook-myun, Pyungtaek City, Kyunggi
Province, Republic of Korea ("Beneficiary" or "Liquidmetal Korea") and Growell
Industry Inc., a company incorporated and existing under the laws of Korea,
having its principal office at [_______] ("Guarantor" or "Growell").
WHEREAS, this Guaranty is provided pursuant to the Settlement Agreement
made and entered into on January 3, 2004 by and between and between Beneficiary
and Growell Metal Co., Ltd. ("Growell Metal"), a company incorporated and
existing under the laws of Korea, having its principal office at 166,
Shinhang-ri, Doonpo-myun, Ansan City, Choongnam Province, Republic of Korea (the
"Settlement Agreement").
NOW, THEREFORE, Guarantor covenants and agrees as follows:
SECTION 1. Guaranty. Guarantor, hereby unconditionally and irrevocably
guarantees to Beneficiary, the following obligations (collectively, the
"Guaranteed Obligations"): the due, prompt and faithful performance of, and
compliance with, all other obligations, covenants, terms, conditions and
undertakings of Growell Metal in favor of the Beneficiary contained in the
Settlement Agreement. Guarantor further agrees to pay any and all reasonable
costs and expenses (including reasonable fees and disbursements of counsel) that
may be paid or actually incurred by the Beneficiary in preserving or enforcing
any rights under this Guaranty or under the Guaranteed Obligations.
This Guaranty is a guaranty of payment, performance and compliance and not
of collectability, is in no way conditioned or contingent upon any attempt to
collect from or enforce performance or compliance by Liquidmetal Korea or upon
any other event, contingency or circumstance whatsoever.
SECTION 2. Bankruptcy. In the event of Growell Metal's rejection of the
Settlement Agreement in a bankruptcy or insolvency proceeding, Guarantor agrees
that it will pay forthwith all payments or damages (if any) required to be made
by Growell Metal under the Settlement Agreement as though the rejection had not
occurred.
SECTION 3. Guarantor's Guaranteed Obligations Unconditional. The covenants
and agreements of Guarantor set forth in this Guaranty shall be primary
obligations of Guarantor, and such obligations shall be continuing, absolute and
unconditional, shall not be subject to any counterclaim, setoff, deduction,
diminution, abatement, recoupment, suspension, deferment, reduction or defense,
and shall not be released, discharged or in any way affected by, any
circumstance or condition whatsoever. The obligations of Guarantor set forth
herein constitute
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the full recourse obligations of Guarantor enforceable against it to the full
extent of all its assets and properties. Notwithstanding the foregoing, any
defense available to Growell Metal with respect to its performance under the
Guaranteed Obligations shall also constitute a defense of Guarantor hereunder.
SECTION 4. Other Agreements. Guarantor agrees that this Guaranty shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of Growell Metal is rescinded or must be otherwise restored by the
Beneficiary, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise.
SECTION 5. Subrogation, etc. Guarantor will not exercise any rights which
it may acquire by way of rights of subrogation under this Guaranty, by any
payment made hereunder or otherwise, until the prior payment, in full and in
cash, of all Guaranteed Obligations and other amounts owing by Guarantor
hereunder. Any amount paid to Guarantor on account of any such subrogation
rights prior to the payment in full of all Guaranteed Obligations and other
amounts shall be held in trust for the benefit of the Beneficiary and credited
and applied against the Guaranteed Obligations.
SECTION 6. Term of Guaranty. This Guaranty and all guaranties, covenants
and agreements of Guarantor contained herein, shall continue in full force and
effect and shall not be discharged until such time as all the Guaranteed
Obligations shall be indefeasibly paid in full in cash or stock and all the
agreements of Growell Metal and Guarantor hereunder and under the Settlement
Agreement shall have been duly performed. If, as a result of any bankruptcy,
dissolution, reorganization, insolvency, arrangement or liquidation proceedings
(or proceedings similar in purpose or effect) or if for any other reason, any
payment received by the Beneficiary in respect of the Guaranteed Obligations is
rescinded or must be returned by the Beneficiary, this Guaranty shall continue
to be effective as if such payment had not been made and, in any event, as
provided in the preceding sentence.
SECTION 7. Severability of this Guaranty. In case any provisions of this
Guaranty or any application thereof shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions and
statements and any other application thereof shall not in any way be affected or
impaired thereby. To the extent permitted by law, Guarantor hereby waives any
provision of law that renders any term or provision hereof invalid or
unenforceable in any respect.
SECTION 8. Miscellaneous. This Guaranty shall be binding upon Guarantor
and its successors, transferees and assigns and inure to the benefit of and be
enforceable by the respective successors, transferees, and assigns of the
Beneficiary, provided, however, that Guarantor may not delegate any of its
obligations hereunder. This Guaranty may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each
executed counterpart constituting an original, but all of which together shall
constitute one agreement.
16
<PAGE>
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed as
of the date first above written.
LIQUIDMETAL KOREA CO, LTD.
By:/s/ YM Lee
Name: Young Mo Lee
Title: CFO
Jan. 11, 2004
GROWELL INDUSTRY INC.
By: /s/ JS Park
Name: Jeong Seo Park
Title: Chairman and CEO
17
<PAGE>
ATTACHMENT 6
NONDISCLOSURE AND CONFIDENTIALITY AGREEMENT
THIS NONDISCLOSURE AND CONFIDENTIALITY AGREEMENT ("Agreement") is entered
into this February 23rd 2002 by and between LIQUIDMETAL TECHNOLOGIES/LIQUIDMETAL
GOLF ("Disclosing Party") and GROWELL INDUSTRY INC. ("Receiving Party") in order
to prevent the unauthorized disclosure of Confidential Information (as defined
below) of the Disclosing Party which may be disclosed to the Receiving Party for
the purpose of pursuing the establishment of a business relationship or
negotiating any contract or agreement between the Disclosing Party and the
Receiving Party.
For purposes of this Agreement, Confidential Information shall include but
not be limited to the following:
Information relating to specific chemistry of glass forming alloy
compositions before the alloy becomes commercial, sources of alloy stock, types,
purities, chemistries and cost, details of melting and parameters for casting
and molding including crucible types, temperature, times, and pressure, use of
atmospheres or gases and specification of same relating to forming of amorphous
and nanocrystalline alloys and combinations of the same. Confidential
Information may also include data, know how, formula, processes, designs,
sketches, photographs, plans, drawings, specifications, sample reports, customer
lists, pricing information, business plans, studies, findings, inventions and
ideas. To the maximum extent practical, Confidential Information shall be
disclosed in documentary or tangible form marked "Proprietary" or
"Confidential." In the case of disclosures in nondocumentary form made orally or
by visual inspection, Disclosing Party may, but shall not be obligated to,
confirm in writing the fact and confidential nature of each such disclosure
within a reasonable time after it is made.
In consideration of the Disclosing Parties disclosure of Confidential
Information to the Receiving Party, the Receiving Party hereby agrees as
follows:
1. The Receiving Party shall hold and maintain the Confidential
Information in strictest confidence and in trust for the sole and
exclusive benefit of the Disclosing Party. The Receiving Party shall
maintain in strict confidence the existence of this Agreement and
the matters contemplated hereby.
2. The Receiving Party shall not, without the prior written approval of
the Disclosing Party, use for its own benefit, publish or otherwise
disclose to others, or permit the use by others for their benefit or
the detriment of the Disclosing Party, any of the Confidential
Information. Except for the purposes stated above, the Receiving
Party shall not participate in, or enter into an agreement with any
other entity for the purposes of any research, product development,
or any commercial activity relating to the composition, processing,
or application of any amorphous metals and glass forming alloys
without the express written approval of the Disclosing Party.
3. The Receiving Party shall not file any patents, in the US or abroad,
related to processing or application of any amorphous metals and
glass forming alloys without the express written approval of the
Disclosing Party. The Receiving Party hereby agrees that any patents
filed by the Receiving Party related to any amorphous metals and
glass forming alloys will be licensed to the Disclosing Party on a
paid-up, worldwide, royalty free basis for the life of the patent.
4. The Receiving Party shall carefully restrict access to the
Confidential Information to those of its officers, directors, and
employees who clearly need such access in order to participate on
behalf of the Receiving Party in the analysis and negotiation of a
business relationship or any contractor agreement, or the
advisability thereof, with the Disclosing Party. The Receiving Party
further warrants and represents that it will advise each of the
persons to whom it provides access to any of the Confidential
Information under the foregoing sentence that such persons are
strictly prohibited from making any use, publishing or otherwise
disclosing to others, or permitting others to use for their benefit
or the detriment of the Disclosing Party, any of the Confidential
Information.
<PAGE>
5. The Receiving Party shall take all necessary action to protect the
confidentiality of the Confidential Information.
6. The Receiving Party understands and acknowledges that any disclosure
or misappropriation of any of the Confidential Information in
violation of this Agreement may cause the Disclosing Party
irreparable harm, the amount of which may be difficult to ascertain
and, therefore, agrees that the Disclosing Party shall have the
right to apply to a court of competent jurisdiction for an order
restraining any such further disclosure or misappropriation and for
such other relief as the Disclosing Party shall deed appropriate.
Such right of the Disclosing Party is to be in addition to the
remedies otherwise available to the Disclosing Party at law or in
equity.
7. The Receiving Party shall not make copies of the Confidential
Information, and will return promptly any and all records, notes and
other written, printed or tangible materials pertaining to the
Confidential Information immediately on the written request of the
Disclosing Party.
8. If Receiving Party is required by legal process to disclose any
Confidential Information supplied to it in the course of its
dealings pursuant to this Agreement, it is agreed that the Receiving
Party will provide the Disclosing Party with prompt notice of such
request so that the Disclosing Party may seek an appropriate
protective order and/or waive the Receiving Parties compliance with
the provisions of this Agreement.
9. Receiving Party agrees that unless and until Receiving Party and
Disclosing Party enter into a separate written agreement, no rights
whatsoever under any patent, trademark, copyright or application or
trade secret therefore which Disclosing Party may now have or
hereafter obtain shall be transferred to Receiving Party and
Receiving Party shall receive no rights whatsoever in said patent,
trademark, copyright, application or trade secret.
10. This Agreement and the Receiving Party's described obligations shall
be binding on the representatives, assigns, and successors of the
Receiving Party and shall inure to the benefit of the assigns and
successors of the Disclosing Party.
11. This Agreement shall be governed by and construed in accordance with
the laws of the State of California. If any action at law or in
equity is brought forth to interpret provisions of this Agreement,
the prevailing party in such action shall be entitled to reasonable
attorneys' fees.
DISCLOSING PARTY:
LIQUIDMETAL TECHNOLOGIES,
By: /S/ Sung Taek Hong
VP Business Development
RECEIVING PARTY:
GROWELL INDUSTRY INC.,
By: /s/ JS Park
Jeong Seo Park
2
<PAGE>
ATTACHMENT 7
MUTUAL NONDISCLOSURE AGREEMENT
THIS MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made and entered
into as of September, 2003 by and between LIQUIDMETAL TECHNOLOGIES, a California
corporation ("Liquidmetal"), and Growell Metal, a ________________ corporation
("Company"). Liquidmetal and Company are hereinafter sometimes referred to
individually as a "Party" and together as the "Parties."
WHEREAS, Liquidmetal is engaged in the development, manufacturing,
marketing, and sale of products made from its proprietary Liquidmetal(R) alloys.
WHEREAS, the Parties are evaluating a potential business relationship or
transaction relating to
______________________________________________________________ (the
"Transaction"), and in connection with such evaluation, the Parties may disclose
certain of their proprietary or confidential information to the other Party.
NOW, THEREFORE, in consideration of the foregoing recitals and in
consideration of the covenants, terms, and conditions set forth below,
Liquidmetal and Company, intending to be legally bound hereby, agree as follows:
1. DEFINITIONS.
Unless otherwise specifically provided in this Agreement, the following
capitalized terms shall have the meanings set forth below for purposes of this
Agreement:
(a) "DISCLOSER" shall mean the Party that is disclosing Information under
this Agreement, regardless of whether such Information is being provided
directly by such Party, by a Representative of the Party, or by any other Person
that has an obligation of confidentiality with respect to the Information being
disclosed.
(b) "RECIPIENT" shall mean the Party receiving Information that is
protected under this Agreement.
(c) "REPRESENTATIVES" shall mean the respective directors, officers,
employees, financial advisors, accountants, attorneys, agents, consultants, and
Affiliates of a Party.
(d) "INFORMATION" shall mean any and all commercial, technical, financial,
proprietary, and other information relating to the Discloser and its Affiliates,
including, but not limited to, samples, data, technical information, know-how,
formulas, ideas, inventions, discoveries, patents, patent applications,
intellectual property (whether or not patentable), product development plans,
demonstrations, business and financial information, applications and designs,
and all manifestations or embodiments relating to the foregoing and all
improvements made thereto, in whatever form provided, whether oral, written,
visual, machine-readable, electronic, or otherwise. For purposes of this
Agreement, Liquidmetal's Information shall include any and all information
relating to the composition, processing, properties, or application of
Liquidmetal(R) alloys. "Information" also includes (i) any information described
above which the Discloser obtains from a third party and which the Discloser
treats as proprietary or designates as confidential, whether or not owned or
developed by the Discloser, and (ii) the fact that the Parties have entered into
this Agreement and are engaged in discussions regarding the potential
Transaction.
(e) "PERSON" shall be broadly interpreted to include, without limitation,
any individual, corporation, partnership, trust, organization, agency or other
entity.
(f) "AFFILIATE" shall mean, with respect to a specified Person, any other
Person who or which controls, is controlled by, or is under common control with,
the specified Person. The term "Affiliate" includes, without limitation, all
subsidiaries, parent companies, partnerships, and joint ventures of the
specified Person.
2. RESTRICTIONS ON DISCLOSURE AND USE.
(a) RESTRICTIONS AND COVENANTS. Each Party agrees that, in its capacity as
the Recipient of Information, it will (i) hold the Discloser's Information in
strict confidence, use a high degree of care in safeguarding the Discloser's
Information, and
Liquidmetal Technologies
Mutual Nondisclosure Agreement (v.2)
<PAGE>
take all precautions necessary to protect the Discloser's Information including,
at a minimum, all precautions the Recipient normally employs with respect to its
own confidential information, (ii) not divulge any of the Discloser's
Information or any information derived therefrom (including results of tests on
material samples) to any other Person (except as set forth in Section 2(b)
below), (iii) not make any use whatsoever at any time of the Discloser's
Information except for the purpose of internal evaluation of the proposed
Transaction or such other purpose as may be permitted by a subsequent written
agreement of the parties (such as a research or product development agreement),
(iv) not copy, reverse engineer, alter, modify, break down, melt down,
disassemble or transmit any of the Discloser's Information, (v) not, within the
meaning of United States or other export control laws or regulations, export or
re-export, directly or indirectly, including but not limited to export on the
Internet or other network service, any of the Discloser's Information, (vi) not
allow others within the Recipient's control to use the Discloser's Information
for the benefit of the Recipient or any other Person (other than the Discloser),
(vii) not use the Discloser's Information against the interests of the
Discloser, (viii) notify the Discloser in writing immediately upon discovery by
the Recipient or its Representatives of any unauthorized use or disclosure of
the Discloser's Information, (ix) not use the Discloser's Information in any way
to pursue patents in any country, and (x) upon the oral or written request of
the Discloser, immediately return to the Discloser or destroy (at the option of
the Recipient) all such Information, including all originals, copies and
extracts, provided that the Recipient's legal counsel may retain one copy of the
returned or destroyed items (excluding material samples provided by Liquidmetal)
for archival purposes.
(b) DISCLOSURE TO REPRESENTATIVES. The Recipient may only disseminate the
Discloser's Information to its Representatives who have been informed of the
Recipient's obligations under this Agreement and are bound by an obligation of
confidentiality and non-use with respect to the Discloser's Information at least
as broad in scope as the Recipient's obligations under this Agreement. The
Recipient agrees to reasonably restrict disclosure of the Discloser's
Information to the smallest number of the Recipient's Representatives which have
a need to know the Information. The Recipient shall be responsible for enforcing
this Agreement as to the Recipient's Representatives and shall take such action
(legal or otherwise) to the extent necessary to cause them to comply with this
Agreement.
(c) TRADE SECRETS. Any trade secrets of the Discloser will also be
entitled to all of the protections and benefits of applicable trade secret law,
and the Recipient agrees to be bound by all applicable trade secret laws, unfair
competition laws, and any other similar laws with respect to the Discloser's
Information. If any Information that the Discloser deems to be a trade secret is
found by a court of competent jurisdiction not be a trade secret under
applicable law, such Information will nevertheless still be protected by this
Agreement.
(d) DISCLOSURE PERIOD. The restrictions set forth in this Section 2 shall
apply to all Information received by the Recipient during the five (5) year
period beginning on the date of this Agreement (the "Disclosure Period"), except
that the Disclosure Period may be terminated earlier by either Party upon thirty
(30) days prior written notice to the other Party. Notwithstanding the
expiration of the Disclosure Period, the obligations and restrictions of the
Recipient under this Section 2 with respect to any and all Information received
during the Disclosure Period shall survive the expiration of the Disclosure
Period and shall continue to remain in full force and effect at all times
thereafter.
(e) EXCEPTIONS. The restrictions on the Recipient's disclosure and use of
the Discloser's Information under this Section 2 will not apply to the extent of
any Information:
(i) that was already known by the Recipient prior to the Disclosure
Period as evidenced by the Recipient's written documentation;
(ii) that becomes publicly known without breach of the Recipient's
obligations under this Agreement;
(iii) that is rightfully acquired by the Recipient from a third party
which is not subject to any restriction or obligation (whether
contractual, fiduciary, or otherwise) on disclosure or use of such
Information;
(iv) that is independently developed by the Recipient or its
Representatives without knowledge or reference to such Information,
as evidenced by written documentation or other tangible evidence;
(v) that is required to be disclosed by law or by court order or
government order, provided that the Recipient (a) promptly notifies
the Discloser of any such disclosure requirement so that the
Discloser may seek an appropriate protective order (or other
appropriate protections), and (b) provides reasonable assistance (at
no cost to the Recipient) in obtaining such protective order or
other form of protection; or
-2-
Liquidmetal Technologies
Mutual Nondisclosure Agreement (v.2)
<PAGE>
(vi) as to which and to the extent to which the Recipient has received
express written consent from an authorized officer of the Discloser
to disclose or use.
A specific item of Information shall not be deemed to fall within the
foregoing exceptions merely because such specific item is embraced or implied by
more general Information that falls within the foregoing exceptions.
Additionally, the Recipient will have the burden of proof respecting any of the
aforementioned events on which the Recipient may rely as relieving it from the
restrictions on disclosure or use of Information, and the removal of
restrictions will be effective only from and after the date of occurrence of the
applicable event referred to above.
3. ADDITIONAL COVENANTS AND AGREEMENTS.
(a) NO OBLIGATION TO DISCLOSE; NO WARRANTY. No provision of this Agreement
shall be construed as an obligation by either Party to disclose any Information
to the other Party or to consummate the proposed Transaction or enter into any
further agreements with the other Party. All Information, including material
samples, are provided "AS IS", without warranty or guarantee of any kind as to
its accuracy, completeness, operability, fitness for a particular purpose, or
any other warranty, express or implied. Neither Party shall be liable to the
other for any damages, loss, expense, or claim of loss arising from use or
reliance on the Information of the other Party.
(b) NO LICENSE IMPLIED. Each Party acknowledges and agrees that all
Information shall remain the property of the Discloser and, except as otherwise
specifically set forth in this Agreement, no license or right with respect
thereto is granted to the Recipient, whether by implication or otherwise. The
Recipient shall have no rights whatsoever under any patent, trademark,
copyright, or application therefor, or any other proprietary right of the
Discloser, and the Recipient agrees that the Discloser shall remain free to
grant such rights to others and to disclose the Information to anyone the
Discloser chooses.
(c) RIGHTS TO LIQUIDMETAL ALLOYS. Unless otherwise specifically agreed to
by Liquidmetal in writing, Liquidmetal shall retain all rights relating to
Liquidmetal Alloys. Accordingly, except as otherwise specifically agreed to in
writing by Liquidmetal, any inventions, improvements, know-how, technology,
information, or other intellectual property developed by the Company (or its
Affiliates) relating to the composition, processing, properties, uses, or
application of Liquidmetal Alloys ("Liquidmetal-Based Technology") will be
considered Liquidmetal's Information under this Agreement and shall be solely
and exclusively owned by Liquidmetal, and Company hereby assigns such
Liquidmetal-Based Technology to Liquidmetal. For purposes hereof, "Liquidmetal
Alloy" means any amorphous alloys or bulk metallic glasses (or composite
materials containing amorphous alloys or bulk metallic glasses) that are
disclosed by Liquidmetal or its Affiliates under this Agreement or that are
covered by one or more claims under patents or patent applications owned by or
licensed to Liquidmetal or its Affiliates.
(d) MATERIAL SAMPLES. If any of the Information delivered by Liquidmetal
or its Representatives to Company consists of samples of amorphous alloys or
samples of other materials (referred to as "Materials"), then Company shall not
take or send the Materials to any location other than the facilities of the
Company without the prior written consent of Liquidmetal. The Company
acknowledges that the Materials may be experimental in nature and shall be used
with prudence and appropriate caution. The Company will not engage in any
testing or processing of the Materials (including, but not limited to, any
grinding, melting, milling, or machining of the Materials) without the express
prior written consent of Liquidmetal. In no event shall Liquidmetal be liable
for any use by the Company or its Representatives for any loss, claim, damage,
or liability, of any kind or nature, that may arise from or in connection with
the use, handling, or storage of the Materials, and the Company agrees to
indemnify and hold harmless Liquidmetal and Liquidmetal's Representatives from
any liability, loss, or damage they may suffer as a result of claims, demands,
costs, or judgments against them arising out of the use or disposition of the
Materials by the Company.
(e) THIRD-PARTY INFORMATION. The Parties hereby state that they do not
desire to acquire from each other, and they hereby agree not to furnish to one
another, any trade secret, proprietary know-how, or confidential information
acquired from third parties (unless the third party provides prior written
consent to such disclosure). Further, each Party represents and warrants to the
other that it is free to divulge, without any obligation to or violation of the
rights of any third party, any and all information which it will demonstrate,
divulge, or in any other manner make known to the other in connection with this
Agreement.
(f) ENFORCEMENT. Each Party acknowledges and agrees that due to the unique
nature of the Information, there can be no adequate remedy at law for any breach
of its obligations hereunder, which breach may result in irreparable harm to the
Discloser. Therefore, that upon any such breach or any threat thereof, the
-3-
Liquidmetal Technologies
Mutual Nondisclosure Agreement (v.2)
<PAGE>
Discloser shall be entitled to appropriate equitable relief, including
injunction, without the requirement of posting a bond, in addition to whatever
remedies it might have at law.
(g) CHOICE OF LAW AND FORUM. This Agreement shall be governed by the laws
of the State of Florida (U.S.A.), without giving effect to the principles of
conflict of laws thereof and without regard to where the Agreement is executed
or to be performed. The parties hereby submit to the personal jurisdiction of
the courts of competent jurisdiction in Hillsborough County, Florida (U.S.A.),
and agree that any cause of action brought under or related to this Agreement by
either Party may be brought in the courts sitting in Hillsborough County,
Florida (U.S.A.).
(h) NOTICES. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt), provided that hard a
copy is also sent by U.S. mail, or (c) when received by the addressee, if sent
by a nationally recognized overnight delivery service (receipt requested) or
sent by certified U.S. mail (return receipt requested), in each case to the
appropriate addresses and telecopier numbers set forth below (or to such other
addresses and telecopier numbers as a Party may designate by notice to the other
parties in accordance with this paragraph).
4. MISCELLANEOUS.
Neither this Agreement nor any interest herein may be assigned, in whole
or in part, by either Party without the prior written consent of the other
Party, except that without securing such prior consent, either Party shall have
the right to assign the Agreement to any successor by way of merger or
consolidation or the acquisition of substantially all of the entire business and
assets of such Party relating to the subject matter of this Agreement; provided
that such successor shall expressly assume in writing all of the obligations and
liabilities of the assigning Party under this Agreement. If a specific provision
of this Agreement is determined to be invalid or unenforceable for any reason,
the specific provision shall be interpreted to call for the protection of the
Discloser's rights to the greatest extent which is valid and enforceable. In the
event that a specific provision of this Agreement is determined to be invalid or
unenforceable by a court of competent jurisdiction and the provision cannot be,
or the court otherwise declines to permit the provision to be interpreted to
call for protection of the Discloser's rights to an extent which is valid and
enforceable, the validity and enforceability of the remaining provisions of this
Agreement shall not be affected, and the Agreement shall thereafter be construed
as if the invalid provision had not been included in the Agreement. It is
understood by both Parties that this Agreement constitutes the complete
agreement between the Parties with respect to the subject matter hereof. This
Agreement may not be amended, modified, or waived unless in writing signed by
the Parties to this Agreement or in the case of a waiver, by the Party waiving
compliance. The failure of a Party at any time or times to require performance
of any provision, condition, or covenant hereof shall in no manner affect the
right of such Party at a later time to enforce such provision, condition, or
covenant or any other provision, condition, or covenant of this Agreement. The
section and paragraph headings in this Agreement are for convenience only and
are not intended to affect the meaning or interpretation of this Agreement. This
Agreement may be executed in counterparts, each of which will be deemed an
original, but all of which together will constitute the same agreement.
By signing this Agreement, the Parties testify to having read, understood and
agreed to the above terms and conditions, and each acknowledges receipt of a
copy of this Agreement.
LIQUIDMETAL TECHNOLOGIES COMPANY NAME: Growell Metal
/s/ YM Lee Signature: /s/ JS Park
YM Lee
CFO Name: JS Park
ADDRESS AND FAX NUMBER FOR NOTICES: ADDRESS AND FAX NUMBER FOR NOTICES:
100 North Tampa Street, Suite 3150 ___________________________________
Tampa, Florida 33602 ___________________________________
Attention: General Counsel Attention:_________________________
Fax No.: 813.314.0270 Fax No.: _________________________
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Liquidmetal Technologies
Mutual Nondisclosure Agreement (v.2)
<PAGE>
ATTACHMENT 8
LIQUIDMETAL TECHNOLOGIES
INTERNATIONAL DISTRIBUTOR AGREEMENT
THIS AGREEMENT is entered into November 16, 2003 between LIQUIDMETAL
TECHNOLOGIES, a corporation organized under the laws of the State of California,
United States of America, with its principal offices at Lake Forest, California,
USA (the "Company") and Growell Metal Inc., a corporation, organized under the
laws of Korea, with principal offices in 644-2, Seonggok-Dong, Danwon-Ku,
Ansan-Shi, Gyeonggi-Do, Korea.
1. PURPOSE OF THE AGREEMENT. The general purpose of this Agreement is to set
forth the terms and conditions upon which the Company will sell to the
Distributor and the Distributor will purchase from the Company the
Products, and to govern the relations between the parties with respect to
the promotion and distribution of the Products within the Territory.
2. EXCLUSIVE TERRITORY. The Distributor's territory shall be the countries of
KOREA, CHINA, JAPAN, SINGAPORE, MALAYSIA, THAILAND, INDONESIA, INDIA,
PHILIPPINES, VIETNAM AND TAIWAN (the "Territory") and shall mean the trade
area within which the Distributor shall have the exclusive right to sell
Products delivered under this Agreement excluding the oil industry.
3. PRODUCTS. This Agreement shall cover the following products: ARMACOR and
LMC branded metal powders and wires, shown in Exhibit A (the "Products")
and such other products as the parties may agree upon in writing during
the term of this Agreement.
4. ORDERS FOR PRODUCTS.
a. All purchases of Products shall be covered by orders submitted from
time to time by the Distributor and accepted in writing by the
Company. The Distributor will place orders for the Products a
sufficient time in advance of its needs so that the Company has time
for the orderly manufacture and shipment of such Products.
b. Prices, discounts and any additional terms and conditions of sale
shall be those established by the Company and in effect on the date
the Distributor submits a specific order and are F.O.B. place of
shipment. If the price of any Products ordered by the Distributor is
increased after receipt of the order by the Company and prior to the
shipment of such Products, the Company will so notify the
Distributor and the Distributor may, by return notice made promptly
to the Company, cancel the order insofar as it covers Products to
which such price increase is applicable.
c. Distributor may request a firm quotation from the Company with
respect to a particular order. The Company shall accept or reject
such request in writing and any acceptance shall be limited to such
Products as covered by the order which are actually delivered to the
Distributor within the period designated as firm by the Company. If
no time is designated, the period during which the order shall be
deemed firm is thirty (30) days.
d. If the Company arranges for transportation, freight or insurance on
Distributor's behalf, then the Company may add an amount to cover
such charges and together with any additional handling costs
incurred by the Company.
e. The Company reserves the right to make changes in specifications,
construction or design of its Products at any time in such manner as
it may consider necessary or advisable, and any Products so changed
will be accepted by the Distributor as standard construction in
fulfillment of existing orders. The Company shall not be obliged to
furnish the Distributor with such changes on goods previously
delivered.
5. TERMS OF PAYMENT. Unless otherwise agreed in writing, Distributor agrees
to pay for all Products purchased hereunder in U.S. dollars by wire
transfer. If at the time of any specific order the Company is able to
offer different terms of payment, the Company will offer alternative terms
to Distributor.
6. DELIVERY, TRANSFER OF TITLE, AND RISK OF LOSS.
International Distributor Agreement
Page 1 of 10
<PAGE>
a. Unless otherwise agreed in writing, all Products purchased hereunder
will be delivered to Distributor via transportation mode and carrier
specified by Distributor. Any transportation, freight or insurance
arranged by the Company for Distributor's account shall be in
accordance with the Company's judgment and discretion, absent
written instructions from the Distributor. Storage, insurance,
demurrage and any other charges, as well as all visas, consular and
notary fees, and any bank charges, export fees and export duties, if
any, are to be paid by the Distributor.
b. Distributor agrees to promptly examine all Products upon receipt,
and will notify the Company in writing within thirty (30) days of
all shortages, nonconforming items, or damage. Within a reasonable
time, the Company will investigate the claim and inform the
Distributor of its findings. Upon acceptance of the claim, the
Company will replace to the Distributor any nonconforming Products
or Products which are short or credit an appropriate amount to the
Distributor's account. The foregoing states the entire liability of
the Company for or resulting from any such shortages, nonconforming
items, or damage, provided that the Company shall have no
responsibility for such matters unless a claim is made by the
Distributor within thirty (30) days of the date the Products are
received by Distributor.
c. The Company agrees that it will at all times use reasonable efforts
to make shipments on or before the dates requested in orders
accepted from the Distributor. However, the Company shall not be
responsible for failure to deliver Products on time or to fill
orders when such delay or failure to deliver shall be the result of
causes beyond the reasonable control of the Company, including, but
not by way of limitation, fire or other elements, war, riot, strikes
or labor disturbances, shortages of materials, and order, decree,
law or regulation of any court, government or governmental agency,
or by the demand for any Products exceeding the Company's available
supply. If the demand from all sources for any of the Products
covered by this Agreement shall at any time exceed the Company's
available supply of such Products, the quantity of such Products to
be allotted to the Distributor, in order to provide for the
equitable distribution of the supply, shall be determined by the
Company in its sole judgment and without liability.
7. WARRANTY. The extent of the Company's warranty for Products sold hereunder
and manufactured by or for the Company shall be solely as set forth in the
Company's standard product warranty provided with each Product. Copies
will be made available to Distributor on request or as part of the
invoices or other shipping documents. Distributor is not authorized to
make any additional representations or warranties in connection with the
sale or use of the Products.
8. OPERATING REQUIREMENTS. The Distributor understands that each of the
following operating requirements is deemed by the Company to be an
essential obligation of the Distributor under this Agreement and
accordingly the Distributor agrees:
a. to purchase Products exclusively from the Company;
b. use its best efforts to market, promote, and maximize sales of the
Products in the Territory;
c. be responsible for advising Company of the necessary compliance with
all laws, regulations and statutory requirements existing in the
Territory in relation to the Products and the import, packaging and
labeling of the Products:
d. leave in position and not cover or erase any notices, trade marks or
other marks that Company may affix on any Products or the packaging
of such Products;
e. maintain adequate stocks of the Products and keep Products stored by
it in appropriate conditions which will prevent their deterioration;
f. be responsible, at its own expense, for translating all literature
and information on the Products into the languages of the Territory;
g. not do anything that may prevent the sale or interfere with the
development of sales of the Products in the Territory;
h. by November 1 of each year, provide Company with a business plan and
sales forecast for the Products for the next calendar year;
i. within 30 days after the end of each calendar quarter, provide
Company with quarterly reports of Product sales in the Territory
and, within 30 days after any request, provide Company such other
information regarding the Agreement and prospects in the Territory
as Company may reasonably require:
International Distributor Agreement
Page 2 of 10
<PAGE>
j. be entitled, subject to the prior written consent of Company and the
terms of this Agreement, to supply products under its own label and
to order products in unbranded packaging for this purpose; and
k. not give any guarantee or warranty on behalf of Company with respect
to the Product (other than as expressly provided by Company).
l. not to seek business outside the Territory, in particular not to
promote the sale of Products, not to keep inventory of Products and
not to sell to any entity or establish any Affiliate to sell
Products outside the Territory through said entity or Affiliate;
m. to provide and maintain physical facilities commensurate with the
sales potential in the Territory;
n. to assign to the Company any rights (hereinafter "Rights") which may
accrue to the Distributor in respect of the use of the Trademarks in
the Territory; and
o. not to register or seek to register any of the Trademarks or Rights
in the Territory or elsewhere, nor shall Distributor object to any
activities of the Company in securing or maintaining Trademarks
and/or Rights in the Territory or elsewhere.
9. CONFIDENTIALITY. Distributor agrees to maintain in confidence all of the
Company's proprietary information and trade secrets including, without
limitation, business information, manufacturing processes, sources of
supply, formulae or any other trade secret or confidential information
made known to or learned by Distributor. Distributor agrees that it will
not use or disclose such confidential information, during or after the
termination of this Agreement, except as expressly permitted hereby in the
performance of this Agreement. This obligation of confidentiality and
non-use shall survive the termination of this Agreement.
10. USE OF TRADEMARKS AND RIGHTS BY DISTRIBUTOR.
a. Distributor is an importer and distributor of the Products and, as
such, is authorized only to use the Trademarks (including, but not
limited to those listed in Exhibit B), in connection with
advertising and promoting the sale of Products in the Territory in
print and media advertising.
b. Distributor's use of the Trademarks shall be in a form and manner
acceptable to the Company and accompanied by any notices or legends
requested by the Company. Prior to Distributor's use, Distributor
shall furnish samples of all advertising and promotional materials
to the Company.
c. Usage of the Trademarks by Distributor shall be subject to any other
quality control requirements and other terms and conditions
specified by the Company from time to time.
d. Distributor shall not use, or permit the use of any of the
Trademarks in any manner which might impair the goodwill of such
Trademarks, or which the Company finds objectionable.
e. Distributor agrees to immediately cease all use of any advertising
or promotional material which Company deems, in its sole discretion,
at any time, unacceptable or objectionable.
f. Distributor shall immediately cease all usage of the Trademarks and
related advertising and promotional material including, but not
limited to, any signs or billboards bearing the Trademarks,
following expiration or termination of this Agreement for any
reason.
g. Distributor hereby recognizes the Company's paramount rights in and
to all Patents, Trademarks and Rights of the Company used in
connection with the Products and shall not challenge such rights
during the term of this Agreement or after the termination of this
Agreement.
h. Distributor shall not use any Trademark or trade name used by the
Company as a part of the Distributor's firm, trading, or corporate
name without the prior written consent of the Company.
11. INDEMNIFICATION.
a. Distributor shall give the Company immediate notice in writing of
the commencement of any suit instituted against the Distributor
alleging an infringement of any letters patent, or any trademark or
trade name used by the Company in connection with the Product and
shall permit the Company through its counsel to defend the same. The
Company shall have control of the defense of any such suit,
including appeals from any judgment thereon and the full authority
to negotiate and conclude a binding settlement thereof. The
Distributor shall give the Company all available information,
assistance and authority to enable it to assume such defense.
Subject to compliance with the above, the Company shall, at its own
expense, defend any such suit and indemnify the Distributor against
any award entered against the Distributor by a final order of a
court of last resort if it is determined that any specified Product
sold by the Company hereunder constitutes an
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<PAGE>
infringement of third party rights. In the event that the sale of
Product purchased by Distributor is enjoined, the Company shall, at
its option and expense, either (a) procure for the Distributor the
right to sell Product in inventory, (b) replace or modify such
Product so that it no longer infringes, or (c) grant the Distributor
a credit for such Product upon its return to the Company, less
reasonable depreciation for use, damage, and obsolescence. The
Company shall not have any liability whatsoever to the Distributor
if any such infringement arises out of (a) compliance with the
design, plans, or specifications furnished to the Company by or on
behalf of Distributor, (b) the use of Product in combination with an
apparatus or device not manufactured or supplied by the Company, (c)
the use of such Product in a manner for which it was not intended,
or (d) any patent, trademark or trade name which the Distributor or
any of its Affiliates has an interest, directly or indirectly, by
license or otherwise. The foregoing states the entire liability of
the Company to the Distributor for or resulting from any such
infringement.
b. The Distributor agrees to indemnify and hold the Company harmless
from and against any claims arising out of the Distributor's
unauthorized use of the Trademarks or Rights. The Company shall have
control, at Distributor's expense, of the defense of any such suit,
including appeals from any judgment thereon and the full authority
to negotiate and conclude a binding settlement thereof.
c. The Distributor agrees to defend, indemnify and hold Company
harmless from any obligations or liabilities arising from any
unauthorized warranties or representations made by Distributor.
12. TERM. This Agreement shall commence on the date of execution of this
Agreement noted above ("Effective Date") and shall continue in full force
and effect for a period of five (5) years (the "Initial Term"), unless
sooner terminated as provided herein. Upon the expiration of the Initial
Term, this Agreement will automatically renew on a year-to-year basis
unless either party provides written notice of non-renewal to the other
party at least six (6) months prior to the end of the Initial Term or the
then-occurring renewal term.
13. TERMINATION.
a. This Agreement may be terminated at any time during the Initial Term
or any Renewal Term by written notification of either parties giving
two(2) months notice.
b. This Agreement may be terminated at any time during the Initial Term
or any Renewal Term by the Company, immediately upon written notice
to the Distributor in the event of the occurrence of any one or more
of the following events, which shall constitute a default:
i) Distributor sells Products outside the Territory, or to any
Affiliate or other entity to sell outside the Territory, or
imports Products or other products of the Company from a
source other than the Company;
ii) The Company becomes aware that a claim or legal action has
been asserted by a third party, or that any law, rule,
regulation or other government action makes it illegal,
impractical or undesirable, determined by the Company in it's
sole discretion, to continue use of the Trademarks in the
Territory;
iii) The Distributor defaults in the payment of any of its
obligations owing to the Company;
iv) The Distributor defaults in any other obligation set forth in
this Agreement, including those set forth in Sections 5, 6, 9,
10, 11, 12, 13, or 19;
v) The admitted insolvency of Distributor or the institution of
voluntary or involuntary proceedings of bankruptcy or other
insolvency laws, or for an arrangement with creditors or for
the corporate reorganization or receivership or dissolution of
the Distributor;
vi) If the Distributor is a corporation or limited liability
company, any change in the principal officers, directors,
management or ownership which, in the opinion of the Company,
will effect a substantial change in the operation, management
or control of the Distributor; or
vii) The falsification of any record or reports or any material
misrepresentation by the Distributor.
c. If any jurisdiction where this Agreement is to be performed requires
a license of the Distributor or the Company, either the Distributor
or the Company may terminate this Agreement immediately upon written
notice in the event:
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<PAGE>
i) If the other party fails to comply with all national and local
laws and regulations applicable to the sale of Products in the
Territory;
ii) If the Company has advised Distributor that it cannot conform
to legal requirements in the Territory or if the costs of
conforming do not make economic business sense to either
party;
iii) The Distributor or the Company fails to secure or maintain or
renew such license; or
iv) Such license of the Distributor or the Company is suspended or
revoked for any reason.
d. This Agreement shall automatically terminate:
i) Upon the death or incapacity of Distributor or any partner in
Distributor's firm if Distributor is an individual or a
partnership; or
ii) Upon any change in the membership of Distributor's firm if
Distributor is a partnership; or
iii) Upon the Distributor becoming defunct or otherwise losing its
legal existence as constituted at the time of this Agreement
if Distributor is a corporation or similar limited liability
company; or
iv) Upon any change in the legal structure of the Distributor
(individual, partnership, corporation, or the like); or v)
Upon the assignment or attempted assignment of this Agreement
or any interest therein or any right thereunder contrary to
Section 19.
vi) Upon any legal action brought by Growell Metal Inc. against
Liquidmetal Technologies or its affiliates except for claims
related to coatings.
e. Termination of this Agreement shall be without liability to either
party except for any liability occasioned by the breach of this
Agreement or with respect to any obligation incurred prior to the
date of such termination or any obligations which, by their terms,
continue beyond termination. Termination of this Agreement shall,
unless otherwise agreed in writing between the parties, cancel all
unfilled orders placed by Distributor without liability on the part
of either party.
f. Within thirty (30) days prior to the date of the expiration or
within thirty (30) days following notice of termination of this
Agreement, notwithstanding the absence of a continuing relationship
between Distributor and the Company, the Company will have the right
to submit an offer to Distributor to purchase some or all remaining
inventories of Products under the control of Distributor. If
Distributor refuses to accept such offer of the Company, Distributor
may sell off its inventories of Products to third parties only at a
price which exceed any offer made by the Company, and Distributor
will be bound by all applicable provisions of this Agreement.
Upon the expiration or termination of this Agreement, Distributor shall,
at the request of the Company, renounce or transfer to the Company,
or to a person or entity identified by the Company, all product
registrations and other permits and registrations relating to the
Products, Patents, Trademarks, Rights or this Agreement.
14. NOTICES. Any notices or other communications required or made pursuant to
this Agreement shall be in writing and shall be deemed to have been duly
given when delivered in person or upon confirmation of receipt of telex or
facsimile transmission, or on receipt after dispatch by registered or
certified mail, postage prepaid, addressed as follows:
IF TO THE COMPANY:
LIQUIDMETAL TECHNOLOGIES
25800 Commercentre Dr.
Suite #100
Lake Forest, CA 92630
USA
ATTN: John Kang
IF TO THE DISTRIBUTOR:
Growell Metal
644-2, Seonggok-Dong, Danwon-Ku
Ansan-Shi, Gyeonggi-Do
Korea
ATTN: Jay S. Park
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<PAGE>
or such other address, fax or telex numbers as the person to whom the
notice is to be given shall notify the other in the manner provided above.
15. NO AGENCY. It is acknowledged by the parties that Distributor is not an
agent of the Company and in all matters hereunder is acting in the
capacity of independent contractor. Distributor is not authorized to incur
any obligations or make any promises or representations on behalf of the
Company.
16. SUCCESSORS AND ASSIGNS. The Agreement and all provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Neither this Agreement nor
any of the rights or obligations hereunder shall be assigned by
Distributor without the prior written consent of the Company.
17. SEVERABILITY. Wherever possible, each provision hereof shall be
interpreted in such manner as to be effective and enforceable under
applicable law, but if for any reason any one or more of the provisions of
this Agreement shall be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement, and such provision shall be
reformed so that it would be valid, legal and enforceable to the maximum
extent permitted in the governing jurisdiction. If such reformation is not
possible, this Agreement shall be construed as if such invalid, illegal or
unenforceable provision have never been contained herein.
18. ENTIRE AGREEMENT, WAIVER, AND AMENDMENTS. This instrument contains the
entire understanding of the parties hereto with regard to the subject
matter contained herein, and supersedes all prior agreements,
understandings or intents. Each party expressly disclaims any
representations, promises or warranties, by whomever made, except as
continued herein. No amendment or modification of this Agreement shall be
binding on either party unless in writing and signed by an authorized
officer of such party. The provisions of this Agreement shall prevail in
the event of any conflict between this Agreement and the terms and
conditions of sale printed on any order, invoice, acknowledgment or
similar sales document. No waiver by either party of any default in the
performance of this Agreement by the other shall be deemed to be a waiver
of any prior or subsequent default of performance hereunder and any such
waiver must be in writing, signed by an authorized representative of the
party sought to be bound thereby.
19. INTERPRETATION. Section headings are inserted for convenience and are not
intended to be a part of or to affect the meaning or interpretation of
this Agreement. Unless otherwise specified, any reference to sections or
parties is a reference to sections or parties to this Agreement and any
reference to the singular includes a reference to the plural and vice
versa. This Agreement shall be interpreted in English only.
20. APPLICABLE LAW. The provisions hereof shall be construed and given effect
according to the laws of the State of California, but without giving
effect to any conflict of laws rules.
21. ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement or the breach thereof, shall be settled by Arbitration in
accordance with the commercial Arbitration Rules of the American
Arbitration Association and judgement upon the Award rendered by the
Arbitrator may be entered in any court having jurisdiction thereof. There
shall be one Arbitrator and the place of arbitration shall be Orange
County, California.
EXECUTED AND DATED as provided below.
<PAGE>
TITLE: CHAIRMAN & CEO
ACCEPTED: GROWELL METAL INC.
ACCEPTED:LIQUIDMETAL
BY: _____________________ DATE: ________ TECHNOLOGIES
NAME: ________________________ BY: __________________ DATE: _______
International Distributor Agreement
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<PAGE>
NAME: ____________________________ TITLE: ____________________________
International Distributor Agreement
Page 7 of 10
<PAGE>
EXHIBIT A
COMPANY PRODUCTS
LMC "Mp"(Former ARMACOR "M") Powder
LMC "C" Plus(Former ARMACOR "C" Plus) Powder
LMC "Mw"(Former ARMACOR "M" )Wire
LMC "16W" (Former ARMACOR "16") Wire
LMC "Cw"(Former ARMACOR "C") Wire
DUOCOR Wire
LMC "68WC" Wire
International Distributor Agreement
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<PAGE>
EXHIBIT B
COMPANY TRADEMARKS
"ARMACOR"
"LIQUIDMETAL TECHNOLOGIES"
"LMT"
"LMC"
"LIQUIDMETAL COATING"
"LIQUIDMETAL"
[LOGO]
International Distributor Agreement
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<PAGE>
EXHIBIT C
REVENUE TARGETS
The minimum annual sales commitment will be $300,000 (Three Hundred Thousand US
Dollars).
International Distributor Agreement
Page 10 of 10
<PAGE>
ATTACHMENT 9
DIECASTING TECHNOLOGY TRANSFER & EQUIPMENT SALES AGREEMENT
Liquidmetal Technologies (Korea) (hereinafter "Liquidmetal") and Growell Metal
(hereinafter "Growell"), hereby agree to the purchase and sale of Liquidmetal
diecasting machines under the following terms and conditions:
SECTION 1. PURPOSE
In order to expand Liquidmetal's amorphous alloy business, Liquidmetal
will transfer diecasting machinery to Growell. The purpose of this Agreement is
to determine the necessary terms for the purchase of diecasting machines and
future business development.
SECTION 2. SALES OF DIECASTING MACHINES
If Growell requests the purchase of diecasting machinery, Liquidmetal must
sell those machines to Growell in mutually agreed quantities. Specific
quantities, prices, delivery methods and installation procedures will be
specified in a separate agreement under mutually agreeable and reasonable terms.
The machines may only be used to die cast Liquidmetal parts under Section 3
below.
SECTION 3. DIECASTING BUSINESS PERMIT FOR GROWELL
3.1. For the term of this Agreement, Liquidmetal grants Growell the right
to use the purchased machines to die cast auto parts from
Liquidmetal alloys for sale to Growell customers who are located in
the Republic of Korea, provided that such die casting may only be
performed in Korea. Upon written consent from Liquidmetal, Growell
can expand the scope of this right to include different application
areas under a separate agreement with Liquidmetal in the future.
3.2. If Liquidmetal internally engages in the die casting of auto parts
from Liquidmetal alloys, Liquidmetal will not sell any such auto
part to any customer of Growell if, prior to the proposed sale by
Liquidmetal, Growell was already supplying the same part to the
customer..
3.3. Growell will pay to Liquidmetal a royalty equal to 17.5% of
Growell's monthly "gross profit" from the sale of cast parts that
contain Liquidmetal alloys. "Gross profit" means sales minus cost of
goods sold. This royalty will be due and payable to Liquidmetal
within thirty (30) days after the end of the month in which royalty
was earned. This royalty will be in consideration of the rights
granted under Section 3.1 and Section 4.1 below.
SECTION 4. RIGHT TO MANUFACTURING OF LIQUIDMETAL ALLOYS
4.1 Growell may itself produce the pre-diecast Liquidmetal ingots that
are necessary for the exercise of Growell's rights under Section 3
above..
4.2 Growell has a right to supply Liquidmetal pre-diecasting alloys
(i.e. ingots) only to Liquidmetal or some entity designated by
Liquidmetal.
4.3
SECTION 5. TERM OF AGREEMENT
This Agreement shall be in effect for five (5) years from the date of
execution. If the Agreement is not cancelled (by written notice) at least one
month prior to the last day of the term of this Agreement, then the Agreement
will automatically be renewed for a one year period. This Agreement will
continue being automatically renewed for subsequent one year periods until it is
terminated by written notice one month period prior to the last day of the one
year extension.
SECTION 6. LIABILITY
6.1 If there is any material breach by either party, then the breached
party shall have a claim for damages from the breaching party.
6.2 Compensation need not be provided for damages caused by force
majeure and other acts of god.
<PAGE>
SECTION 7. TERMINATION OF AGREEMENT
7.1 Either Liquidmetal or Growell may terminate this Agreement if either
of the cases (i) or (ii) occurs. Termination will require written
notice to the other party and the Agreement shall be considered
terminated after 30 days of receipt of this notice.
(i) One of the two parties does not fulfill its duties under this
Agreement so that the true objectives of this Agreement can
not be fulfilled.
(ii) One of the two parties files for bankruptcy or the court
determines that one of the companies is unviable and needs to
be dissolved.
SECTION 8. EFFECTIVE DATE OF AGREEMENT
This Agreement is effective at the time this Agreement is executed.
SECTION 9. TRANSFER OF RIGHTS AND DUTIES
All rights and duties stipulated in this Agreement cannot be transferred
to third parties without the approval of both Liquidmetal and Growell.
SECTION 10. PREVIOUS AGREEMENTS
If there is a conflict between this Agreement and the prior June 14, 2002
agreement, this Agreement shall have priority.
SECTION 11. GENERAL TERMS
11.1 Amendments to this Agreement can be effective only upon approval and
signature by Liquidmetal and Growell.
11.2 If there is any conflict or dispute regarding what is not covered in
this Agreement or in the interpretation of this Agreement,
Liquidmetal and Growell shall discuss these issues in a reasonable
manner to resolve the dispute.
11.3 If there is need for dispute resolution, the parties shall go to the
Seoul District Court for dispute resolution or see a third party
arbitrator.
11.4 Growell acknowledges that the die casting machines purchased by
Growell are proprietary to Liquidmetal and are subject to the
nondisclosure agreement between Growell and Liquidmetal. Therefore,
neither the machines nor any information about the machines shall be
disclosed to any third party at any time. Unless otherwise
specifically agreed to by Liquidmetal in writing, Liquidmetal shall
retain all rights relating to its Liquidmetal alloys. In addition,
except as otherwise specifically agreed to in writing by
Liquidmetal, any inventions, improvements, know-how, technology,
information, or other intellectual property developed by Growell
relating to the composition, processing, properties, uses, or
application of Amorphous Alloys ("Amorphous Alloy Technology") will
be solely and exclusively owned by Liquidmetal, and Growell hereby
assigns such Amorphous Alloy Technology to Liquidmetal. For purposes
hereof, "Amorphous Alloy" means any amorphous metallic materials or
composites containing amorphous metallic materials, including but is
not limited to Liquidmetal(R)alloys and any amorphous metals
(including bulk metallic glasses) or composites containing the same.
11.5 Growell will not issue any press releases or public statement about
this Agreement unless the press release or statement is first
approved by Liquidmetal in writing.
<PAGE>
The parties, Liquidmetal and Growell, have signed 2 copies of this Agreement and
have each retained 1 copy for their records.
March 24, 2003
/s/ Sung Taek Hong /s/ JS Park
CEO: Hong, Sung Taek CEO: Park, Jeong Seo
Company Name: Liquidmetal Korea Company Name: Growell Metal
Address: 11th Floor, Posco Building West Address: #319-8 Kasan-Dong, Kumchon-Gu
892 Daechi 4-dong, Kangnam-ku Seoul, Korea
Seoul, Korea
<PAGE>
LIQUIDMETAL KOREA CO., LTD.
884, Uhyun Hansan Industrial Complex
Uhyun-ri, Chungbook-myun
Pyungtaek City, Kyunggi Province, Republic of Korea
January 10, 2004
Mr. Jeong Seo Park, Chairman
Growell Metal Co., Ltd.
166, Shinhang-ri, Doonpo-myun
Ansan City, Choongnam Province
Republic of Korea
Re: Growell's desire to sell diecasting machines
Dear Mr. Park:
The purpose of this letter is to affirm the willingness of Liquidmetal
Korea Co., Ltd. ("Liquidmetal Korea") and Liquidmetal Technologies, Inc.
(together with Liquidmetal Korea, "Liquidmetal") to assist in the sale of some
or all of the diecasting machines currently owned by Growell Metal Co., Ltd.
("Growell Metal").
Currently, Section 9 of the Diecasting Technology Transfer and Equipment
Sales Agreement, dated March 24, 2003, between Growell Metal and Liquidmetal
Korea (the "Diecasting Agreement") provides that Growell Metal's rights and
duties under said agreement cannot be transferred to third parties without the
approval of both of Liquidmetal Korea and Growell Metal. This letter agreement
will confirm that, notwithstanding the language of Section 9, Liquidmetal agrees
that in the event Growell Metal hereafter desires to transfer and assign to a
specific third party (a "Prospective Customer") all or any portion of its rights
under the Diecasting Agreement (including any die casting equipment purchased
thereunder), then Liquidmetal agrees that it will consent to such assignment so
long as such assignment to the Prospective Customer is not materially adverse to
Liquidmetal's ongoing business and technology goals (and Liquidmetal must use
its reasonable and good faith discretion in making this determination), and
Liquidmetal will cooperate in good faith with Growell Metal to enable Growell
Metal to accomplish such transfer and assignment to the Prospective Customer.
In addition, as an accommodation to Growell Metal, if Liquidmetal becomes
aware of any Prospective Customer that desires to purchase a proprietary
Liquidmetal casting machine at a time when Growell Metal desires to sell any of
its Liquidmetal casting machines, then Liquidmetal will not sell such casting
machine to the Prospective Customer unless Liquidmetal first directs the
Prospective Customer to Growell Metal and encourages the Prospective Customer to
purchase the machine from Growell Metal for a purchase price of at least
$500,000 per machine (provided that the casting machine meets the Prospective
Customer's specifications). Also, upon the request of Growell Metal, Liquidmetal
Korea will confirm to Prospective Customers that Liquidmetal has sold to
<PAGE>
other third parties Liquidmetal casting machines of the type currently owned by
Growell Metal at a price that is approximately equal to $500,000 per machine.
To confirm your desire to have Liquidmetal assist in the foregoing, please
sign this letter below and return an originally signed copy to me at your
earliest convenience. We are excited to be able to be of assistance.
Sincerely,
/s/ John Kang
Acknowledged and agreed to this
11th day of January, 2004.
GROWELL METAL CO., LTD.
By: /s/ JS Park
Mr. Jeong Seo Park, Chairman
<PAGE>
3