As filed with the Securities and Exchange Commission on November 25, 2002
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------
LIQUIDMETAL TECHNOLOGIES
(Exact name of registrant as specified in its charter)
California 87-33-0264467
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 North Tampa St., Suite 3150 33602
Tampa, Florida (Zip Code)
(Address of principal executive offices)
Liquidmetal Technologies 1996 Stock Option Plan
Liquidmetal Technologies 2002 Non-Employee Director Stock Option Plan
Liquidmetal Technologies 2002 Equity Incentive Plan
(Full title of the plans)
Curt P. Creely Copy to:
Corporate Counsel Martin A. Traber
Liquidmetal Technologies Steven W. Vazquez
100 North Tampa St., Suite 3150 Foley & Lardner
Tampa, Florida 33602 100 North Tampa St., Suite 2700
(813) 314-0280 Tampa, Florida 33602
(Name, address and telephone number, (813) 229-2300
including area code, of agent for service)
--------------------------
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------
Proposed
Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered (1) Per Share (2) Price (2) Registration Fee
- ----------------------------------------------------------------------------------------------------------------------
Common Stock,
No par value 16,067,517 shares $1.55 - $15.50 $137,508,230 $12,651
- ----------------------------------------------------------------------------------------------------------------------
(1) 5,067,517 of the shares registered hereby relate to the Liquidmetal
Technologies 1996 Stock Option Plan (the "1996 Plan"); 10,000,000 of the shares
registered hereby relate to the Liquidmetal Technologies 2002 Equity Incentive
Plan (the "2002 Equity Plan"); and 1,000,000 of the shares registered hereby
relate to the Liquidmetal Technologies 2002 Non-Employee Director Stock Option
Plan (the "2002 Director Plan"). This Registration Statement also covers an
indeterminate number of additional shares of Common Stock that may be issued
under the 1996 Plan, the 2002 Equity Plan, and the 2002 Director Plan as the
result of any stock split, stock dividend, recapitalization, or similar
transaction that results in an increase in the number of the Registrant's
outstanding Common Stock.
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(2) Pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"), the offering price per share and the aggregate
offering price are derived from the actual exercise price for shares subject to
outstanding stock options and the average of the high and low prices of
Registrant's Common Stock on November 21, 2002 as reported on the Nasdaq
National Market for the shares not yet subject to currently outstanding options.
The offering price per share and the aggregate offering price are calculated as
follows:
* 5,067,517 shares of Common Stock issuable pursuant to
outstanding options under the 1996 Plan having exercise prices
between $1.55 and $15.50 per share, resulting in an aggregate
offering price of $28,545,789;
* 10,000,000 shares authorized under the 2002 Equity Plan, of
which (i) 148,097 shares are issuable pursuant to outstanding
options having exercise prices between $6.23 and $15.00 per
share, resulting in an aggregate offering price of $2,106,387,
and (ii) 9,851,903 shares are not yet subject to currently
outstanding options, the registration fee for which has been
calculated using $9.75, the average of the high and low prices
of the Registrant's Common Stock on November 21, 2002, resulting
in an aggregate offering price of $96,056,054; and
* 1,000,000 shares authorized under the 2002 Director Plan, of
which (i) 200,000 shares are issuable pursuant to outstanding
options having an exercise price of $15.00 per share, resulting
in an aggregate offering price of $3,000,000, and (ii) 800,000
shares are not yet subject to currently outstanding options, the
registration fee for which has been calculated using $9.75, the
average of the high and low prices of the Registrant's Common
Stock on November 21, 2002, resulting in an aggregate offering
price of $7,800,000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified in
Part I are not required to be filed with the Securities and Exchange Commission
("Commission") as part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents have been previously filed by Liquidmetal
Technologies (the "Registrant") with the Commission and are incorporated herein
by reference:
(a) The Registrant's prospectus contained in the Form S-1
Registration Statement (Registration No. 333-73716) filed with the Commission on
November 20, 2001, as amended.
(b) The description of the Registrant's Common Stock
contained in the Registration Statement on Form 8-A dated May 20, 2002, and any
amendments or reports filed for the purpose of updating such description.
(c) The Registrant's Quarterly Reports on Form 10-Q for the
quarter ended June 30, 2002, filed on August 14, 2002, and for the quarter ended
September 30, 2002, filed on November 14, 2002.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 12(g), 13(a), 13(c), 14, and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), after the date of filing
of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement that indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such reports and
documents.
Any statement contained in a report or document incorporated or
deemed incorporated herein by reference shall be deemed to be modified or
superceded for the purpose of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed report or document that
also is, or is deemed to be, incorporated herein by reference modifies or
supercedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superceded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 317 of the California Corporations Code authorizes a court
to award, or a corporation's board of directors to grant, indemnity to directors
and officers who are parties or are threatened to be made parties to any
proceeding (with certain exceptions) by reason of the fact that the person is or
was an agent of the
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corporation, against expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with the proceeding if that
person acted in good faith and in a manner the person reasonably believed to be
in the best interests of the corporation. Section 204 of the California
Corporations Code provides that this limitation on liability has no effect on a
director's liability (a) for acts or omissions that involve intentional
misconduct or a knowing and culpable violation of law, (b) for acts or omissions
that a director believes to be contrary to the best interests of the corporation
or its shareholders or that involve the absence of good faith on the part of the
director, (c) for any transaction from which a director derived an improper
personal benefit, (d) for acts or omissions that show a reckless disregard for
the director's duty to the corporation or its shareholders in circumstances in
which the director was aware, or should have been aware, in the ordinary course
of performing a director's duties, of a risk of a serious injury to the
corporation or its shareholders, (e) for acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of the director's
duty to the corporation or its shareholders, (f) under Section 310 of the law
(concerning contracts or transactions between the corporation and a director),
or (g) under Section 316 of the law (directors' liability for improper
dividends, loans and guarantees). Section 317 does not extend to acts or
omissions of a director in his capacity as an officer. Further, Section 317
has no effect on claims arising under federal or state securities laws and does
not affect the availability of injunctions and other equitable remedies
available to our shareholders for any violation of a director's fiduciary duty
to us or our shareholders. Although the validity and scope of the legislation
underlying Section 317 have not yet been interpreted to any significant extent
by the California courts, Section 317 may relieve directors of monetary
liability to us for grossly negligent conduct, including conduct in situations
involving attempted takeovers of our company. In accordance with Section 317,
our articles of incorporation eliminate the liability of each of our directors
for monetary damages to the fullest extent permissible under California law. Our
articles further authorize us to provide indemnification to our agents
(including our officers and directors), subject to the limitations set forth
above. The articles and bylaws further provide for indemnification of our
corporate agents to the maximum extent permitted by California law.
Additionally, we maintain insurance policies which insure our officers and
directors against certain liabilities.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
--------
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit No. Exhibit
---------- -------
(4.1) Liquidmetal Technologies 1996 Stock Option
Plan (filed as Exhibit 10.7 to the Registrant's
Registration Statement on Form S-1 (Registration
No. 333-73716), filed on November 20, 2001 and
incorporated by reference.)
(4.2) Liquidmetal Technologies 2002 Equity
Incentive Plan (filed as Exhibit 10.23 to
the Registrant's Registration Statement on
Form S-1 (Registration No. 333-73716), filed
on November 20, 2001 and incorporated by
reference.)
(4.3) Liquidmetal Technologies 2002 Non-Employee
Director Stock Option Plan (filed as Exhibit
10.24 to the Registrant's Registration
Statement on Form S-1 (Registration No.
333-73716), filed on November 20, 2001 and
incorporated by reference.)
(5) Opinion of Foley & Lardner (filed herewith)
(23.1) Consent of Deloitte & Touche LLP (filed herewith)
(23.2) Consent of Foley & Lardner (contained in
Exhibit 5 hereto)
4
(24) Power of Attorney relating to subsequent
amendments (included on the signature page to
this Registration Statement)
(99) Letter from Deloitte & Touch LLP regarding
awareness of reviews of the unaudited
interim financial information for the period
ended September 30, 2002 being incorporated
by reference into this Registration
Statement (filed herewith).
Item 9. Undertakings.
------------
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of this registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
this registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) of the Securities Act, if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in this
Registration Statement.
(iii) To include any material information
with respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement.
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii)
above do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports filed
by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference herein.
(b) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
2. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
5
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act
of 1933, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Tampa, and State of Florida, on this 25th day of
November, 2002.
Liquidmetal Technologies
By: /s/ John Kang
----------------------------------------
John Kang
President and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
constitutes and appoints John Kang his true and lawful attorney-in-fact and
agent, with full power of substitution and revocation, for him and in his, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agents, or either of
them, may lawfully do or cause to be done by virtue hereof.
Signature Title Date
--------- ----- ----
/s/ John Kang Chief Executive Officer
- ------------------------------------ President and Director
John Kang (Principal Executive Officer) November 6, 2002
/s/ Brian McDougall Chief Financial Officer
- ------------------------------------
Brian McDougall (Principal Financial and
Accounting Officer) November 6, 2002
/s/ James Kang Chairman of the Board of Directors November 6, 2002
- ------------------------------------
James Kang
/s/ William Johnson Vice Chairman of the Board
- ------------------------------------
William Johnson of Directors November 6, 2002
/s/ Shekhar Chitnis Director November 6, 2002
- ------------------------------------
Shekhar Chitnis
/s/ Ricardo A. Salas Director November 6, 2002
- ------------------------------------
Ricardo A. Salas
/s/ Jack Chitayat Director November 6, 2002
- ------------------------------------
Jack Chitayat
/s/ Tjoa Thian Song Director November 6, 2002
- ------------------------------------
Tjoa Thian Song
/s/ Jeffrey Oster Director November 6, 2002
- ------------------------------------
Jeffrey Oster
/s/ Henri Tchen Director November 6, 2002
- ------------------------------------
Henri Tchen
/s/ Betsy Atkins Director November 6, 2002
- ------------------------------------
Betsy Atkins
/s/ David Browne Director November 6, 2002
- ------------------------------------
David Browne
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EXHIBIT INDEX
Exhibit No. Exhibit
---------- -------
(4.1) Liquidmetal Technologies 1996 Stock Option
Plan (filed as Exhibit 10.7 to the Registrant's
Registration Statement on Form S-1 (Registration
No. 333-73716), filed on November 20, 2001 and
incorporated by reference.)
(4.2) Liquidmetal Technologies 2002 Equity
Incentive Plan (filed as Exhibit 10.23 to
the Registrant's Registration Statement on
Form S-1 (Registration No. 333-73716), filed
on November 20, 2001 and incorporated by
reference.)
(4.3) Liquidmetal Technologies 2002 Non-Employee
Director Stock Option Plan (filed as Exhibit
10.24 to the Registrant's Registration
Statement on Form S-1 (Registration No.
333-73716), filed on November 20, 2001 and
incorporated by reference.)
(5) Opinion of Foley & Lardner (filed herewith)
(23.1) Consent of Deloitte & Touche LLP (filed herewith)
(23.2) Consent of Foley & Lardner (contained in
Exhibit 5 hereto)
(24) Power of Attorney relating to subsequent
amendments (included on the signature page to
this Registration Statement)
(99) Letter from Deloitte & Touch LLP regarding
awareness of reviews of the unaudited
interim financial information for the period
ended September 30, 2002 being incorporated
by reference into this Registration
Statement (filed herewith).
9
Brussels
CHICAGO FOLEY : LARDNER
DENVER ATTORNEYS AT LAW
Detroit
JACKSONVILLE
LOS ANGELES
MADISON
MILWAUKEE
ORLANDO
SACRAMENTO
SAN DIEGO/DEL MAR
SAN FRANCISCO
TALLAHASSEE
TAMPA
WASHINGTON, D.C.
WEST PALM BEACH
November 25, 2002
Liquidmetal Technologies
Curt Creely, Corporate Counsel
100 North Tampa Street., Suite 3150
Tampa, Florida 33602
Re: Registration Statement on Form S-8 Relating to:
Liquidmetal Technologies 1996 Stock Option Plan
Liquidmetal Technologies 2002 Non-Employee Director Stock
Option Plan
Liquidmetal Technologies 2002 Equity Incentive Plan
Ladies and Gentlemen::
We have acted as counsel for Liquidmetal Technologies, a
California corporation (the "Company"), in connection with the preparation
of a Form S-8 Registration Statement (the "Registration Statement") to be filed
by the Company with the Securities and Exchange Commission under the Securities
Act of 1933, as amended (the "Securities Act"), relating to 16,077,995 shares of
the Company's Common Stock, no par value per share (the "Common Stock"), which
may be issued pursuant to the Liquidmetal Technologies 1996 Stock Option Plan;
the Liquidmetal Technologies 2002 Non-Employee Director Stock Option Plan; and
the Liquidmetal Technologies 2002 Equity Incentive Plan (collectively, the
"Plans"). This opinion letter is rendered pursuant to Item 8 of Form S-8 and
Item 601(b)(3) of Regulation S-K. The 16,077,995 shares of Common Stock issuable
pursuant to the Plans are referred to herein as the "Shares."
We have examined and are familiar with the Articles of
Incorporation of the Company, as amended, filed with the Secretary of State
of the State of California, Bylaws of the Company, as amended, proceedings of
the Board of Directors and shareholders of the Company in connection with the
adoption of the Plans, and such other records and documents of the Company,
certificates of public officials and such other documents as we have deemed
appropriate as a basis for the opinions set forth in this option letter.
Based on the foregoing, it is our opinion that the
Shares, when issued in accordance with the terms and conditions of the Plan,
will be legally and validly issued, fully paid and nonassessable.
FOLEY & LARDNER WRITER'S DIRECT LINE
100 North Tampa Street, Suite 2700 813.225.4126
Tampa, Florida 33602-5810
P.O. Box 3391
Tampa, Florida 33601-3391 EMAIL ADDRESS mtraber@foleylaw.com
TEL: 813.229.2300
FAX: 813.221.4210 CLIENT/MATTER NUMBER
www.foleylardner.com 078489-0101
Liquidmetal Technologies
November 25, 2002
Page 2
We are licensed to practice law in the State of Florida
and California and express no opinion as to any laws other than those of
such states and the federal laws of the United States of America.
This opinion Letter is provided to you for your benefit and for
the benefit of the Securities and Exchange Commission, in each case, solely
with regard to the Registration Statement, may be relied upon by you and the
Commission only in connection with the Registration Statement, and may not be
relied upon by any other person or for any other purpose without our prior
written consent. We hereby consent to the inclusion of this opinion as
Exhibit 5 in the Registration Statement. In giving this consent, we do not
thereby admit that we come within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
or regulations of the Commission promulgated thereunder
Foley & Lardner
/s/ Foley & Lardner
-------------------------
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Liquidmetal Technologies on Form S-8 of our report dated November 15, 2001
appearing in a Form S-1 (No. 333-73716), as amended, filed November 20, 2001 and
Amendment No. 1 to Form S-1 (No. 333-73716) filed April 3, 2002 and of our
report dated April 4, 2002 appearing in Amendments No. 2, No. 3 and No. 4 to
Form S-1 (No. 333-73716) filed April 4, 2002, April 26, 2002 and May 1, 2002,
respectively. We also consent to the reference to us under the heading "Experts"
in the Prospectus, which is part of this Registration Statement on form S-8.
/s/ Deloitte & Touche LLP
Tampa, Florida
November 25, 2002
November 25, 2002 Board of Directors Liquidmetal Technologies 100 North Tampa Street Suite 3150 Tampa, Florida 33602 We have made a review, in accordance with standards established by the American Institute of Certified Public Accountants, of the unaudited interim financial information of Liquidmetal Technologies and subsidiaries for the periods ended June 30, 2002 and September 30, 2002 as indicated in our reports dated July 19, 2002 and October 14, 2002, respectively; because we did not perform an audit, we expressed no opinion on that information. We are aware that our reports referred to above, which were included in your Quarterly Reports on Form 10-Q for the quarters ended June 30, 2002 and September 30, 2002 are being used in this Registration Statement. We also are aware that the aforementioned reports, pursuant to Rule 436(c) under the Securities Act of 1933, are not considered a part of the Registration Statement prepared or certified by an accountant or reports prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act. Sincerely, /s/ Deloitte & Touche LLP