Exhibit 10.52
Investor: Banque pour L'Industrie Francaise (ref: GAN)
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SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated as of May 22, 1995, by and among MEMRY
CORPORATION, a corporation formed under the laws of the State of Delaware, with
its principal office at 00 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (the
"Company"), and the investor whose name is set forth at the top of this page
("Investor").
RECITALS
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1. The Company desires to issue in an unregistered securities offering
307,690 shares of the Company's Common Stock, par value $.01 per share at a
purchase price of $0.65 per share (the "Common Stock," or, the "Securities"), on
the terms and conditions set forth in this Agreement.
2. Investor desires to purchase the number of shares of the Common Stock
set forth below, on the terms and conditions set forth in this Agreement.
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THE SECURITIES SOLD HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 , AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION, THESE SECURITIES HAVE BEEN SOLD IN RELIANCE UPON EXEMPTIONS
THEREUNDER. THE SALE OR OTHER DISPOSITION OF THE SECURITIES SOLD HEREBY MAY ONLY
BE MADE PURSUANT TO A REGISTRATION UNDER THAT ACT AND THOSE LAWS OR PURSUANT TO
AN EXEMPTION FROM SUCH REGISTRATION. NO OFFER, SALE, OR OTHER DISPOSITION OF
THESE SECURITIES MAY BE MADE, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OF
AMERICA (INCLUDING ITS TERRITORIES OR POSSESSIONS) OR TO NATIONALS OR RESIDENTS
THEREOF EXCEPT IN ACCORDANCE WITH THAT ACT, THOSE LAWS, THE RULES THEREUNDER,
AND THIS AGREEMENT.
THE SECURITIES COVERED HEREBY ARE BEING OFFERED IN RELIANCE UPON REGULATION S
UNDER THE SECURITIES ACT AND MAY NOT BE OFFERED AND SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS (1) AS PART OF
THEIR DISTRIBUTION AT ANY TIME OR (2) OTHERWISE UNTIL 40 DAYS AFTER THE LATER OF
THE COMMENCEMENT OF THE OFFERING AND THE CLOSING DATE, EXCEPT IN EITHER CASE IN
ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT. TERMS USED IN THIS
PARAGRAPH HAVE THE MEANING GIVEN TO THEM BY REGULATION S.
(1)
AGREEMENT
In consideration of the foregoing, and of the mutual promises contained
herein, the Company and Investor hereby agree as follows:
1. Purchase and Delivery. Investor agrees to purchase 307,960 shares of the
Common Stock for a purchase price of $0.65 per share. The Company shall execute
and deliver to Investor at Investor's address set forth on the signature page
hereof a certificate representing the Common Stock purchased by Investor within
60 days of the date of the acceptance of this Agreement by the Company.
2. Representations and Warranties of Investor. Investor hereby represents
and warrants to the Company, and acknowledges and intends that the Company rely
thereon, as follows:
(a) Investor will not sell, assign, pledge, transfer, or otherwise dispose
of, whether directly or indirectly, all or a portion of the Investor's
Securities to any person or entity without complying with applicable securities
laws and the transaction restrictions set forth in Section 4 hereof;
(b) Investor is acquiring the Securities for Investor's own account, for
investment purposes only and not with a view to any distribution of such
Securities and no other person has a direct or indirect beneficial interest in
such Securities;
(c) Investor acknowledges and agrees that the Company has informed Investor
that the Securities are not registered under any securities laws, the Securities
are subject to substantial restrictions on transfer, and the Securities may not
be transferred for an indefinite period of time;
(d) Investor has investigated the purchase of the Securities to the extent
Investor deems necessary or desirable, and the Company has provided Investor
with any assistance in connection therewith which Investor has requested.
Investor or Investor's Purchaser Representative(s) has such knowledge and
experience in financial and business matters that Investor is capable of
evaluating the merits and risks of the acquisitions of the Securities and of
making an informed investment decision with respect thereto and Investor has the
ability to bear the economic risk of an investment in the Company and to
withstand a complete loss of it s investment. Investor is financially able to
hold the Securities for an indefinite period of time;
(2)
(e) Investor is not relying on the Company or any of its directors,
officers, employees, or agents for guidance with respects to tax and other
applicable laws of any jurisdiction, or other economic considerations, and
Investor has been furnished by the Company with all information Investor has
deemed necessary or appropriate in order to form an informed investment decision
concerning the purchase of the Securities. Investor has been afforded an
opportunity to ask questions of, and receive answers from, representatives of
the Company concerning the terms and conditions of Investor's purchase of the
Securities and has been afforded the opportunity to obtain any additional
information (to the extent the Company had such information or could acquire it
without unreasonable effort or expense) necessary to verify the accuracy of
information otherwise furnished by the Company;
(f) Unless Investor completed and delivered a Purchaser Representative
Questionnaire, Investor has not used a Purchaser Representative;
(g) If Investor has delivered a Purchaser Representative
Questionnaire, Investor represents that the Purchaser Representative about whom
information has been furnished on such Questionnaire is the person who has
advised Investor in connection with an evaluation of the merits and risks of
Investor's investing in the Units and is Investor's Purchaser Representative;
(h) Investor understands that no United States federal or state agency
or any agency of any other government has passed upon or made any recommendation
or endorsement of any investment in the Company;
(i) Investor is not a United States Person (as defined in Section 4
hereof) and Investor's principle residence (if Investor is an individual) or
Investor's principle office (if Investor is an organization) is presently at the
address designated on the signature page hereof;
(j) If Investor is an organization, Investor; (i) has not been
organized for the purpose of purchasing the Securities, or (ii)has been
organized for the purpose of purchasing the Securities and has made the
representations and warranties contained in this Agreement with respect to and
on behalf of all of the beneficial owners thereof;
(k) If Investor is an organization, that (i) this Agreement and the
transactions contemplated hereby have been duly authorized by all necessary
directors, officers, trustees, partners, or other necessary persons of investor
and will not violate any agreement to which Investor is a party; (ii) the
undersigned natural person executing this Agreement on behalf of Investor has
the requisite right, power, capacity, and authority under Investor's governing
instruments, a copy of which shall be provided to the Company at its request, to
enter into this Agreement; (iii) this Agreement will be binding on and
enforceable against Investor in accordance
(3)
with its terms; and (iv) the undersigned natural person, as well as investor,
will be fully subject to the provisions of Paragraph 3.
(1) Investor is an "accredited investor" as such term is defined in
Rule 501 adopted pursuant to the United States Securities Act of 1933, as
amended (the "Securities Act").
3. Indemnification. Investor hereby indemnifies, and agrees to hold
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harmless, the Company, each corporation and entity affiliated with the Company,
and the shareholders, partners, officers, directors, employees, professional
advisors, and agents of each of the foregoing, from and against any and all
loss, damage, liability or expense, including reasonable attorneys fees and
other legal expenses, which the indemnified party may incur by reason of or in
connection with, any misrepresentation made by Investor, any breach of any of
Investor's representations and warranties, or Investor's failure to fulfill any
of its covenants or agreements under this Agreement.
4. Transaction Restrictions. The Investor understands and
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acknowledges that the Securities have not been and will not be registered under
the Securities Act and may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons except in accordance with
Regulation S under the Securities Act or pursuant to an exemption from the
registration requirements of the Securities Act. Investor represents that, until
40 days after the later of the commencement of the offering and the Closing
Date, it will offer or sell the Securities only in accordance with Rule 903 of
Regulation S under the Securities Act. Accordingly, the Investor represents,
warrants and covenants that it is not a U.S. person and neither it, its
affiliates nor any persons acting on its behalf have engaged or will engage in
any directed selling efforts in the United States with respect to the
Securities, and it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Terms used in this paragraph 4 have
the meaning given to them by Regulation S.
5. Miscellaneous.
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(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Connecticut, U.S.A., without regard to its
conflicts of law rules or principles. The parties acknowledge, however, that
they have executed and delivered this agreement in ___________________, and that
the sale of the Securities has occurred in ___________________.
(b) This Agreement constitutes the entire agreement between the
parties hereto with respect to Investor's purchase of the Securities, and no
amendment, alteration, or modification of this Agreement shall be valid, unless
such amendment, alteration, or modification is expressed in a written instrument
duly executed by Investor and the Company.
(c) This Agreement shall insure to the benefit of and be
(4)
binding upon the successors, assigns, legal representatives, executors, and/or
administrator of Investor and the Company, but shall not be assignable by
Investor.
(d) This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(e) If any of the provisions contained herein shall be deemed to be
unenforceable for any reason, the parties hereto agree this Agreement shall be
interpreted so as to be enforceable to the greatest extent possible.
(f) Investor's representations, warranties, and indemnification
obligations contained herein shall survive the acceptance hereof.
(5)
SIGNATURE PAGE - INDIVIDUALS ONLY
(ORGANIZATIONS ON FOLLOWING PAGE)
_____________________________
Name(s) of Investor (s)
(Please print)
_____________________________
Signature of Investor (s)
_____________________________
Signature of Joint Investor
(if any)
Home Address:__________________________________________________
_________________________________________________________________
Home telephone Number:___________________________________________
Occupation:______________________________________________________
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ACCEPTED:
MEMRY CORPORATION
By:_________________________________________
Title:______________________________________
Date:_______________________________________
At:_________________________________________
(6)
SIGNATURE PAGE - ORGANIZATIONS ONLY
(INDIVIDUALS ON PREVIOUS PAGE)
Banque pour L'Industrie
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Francaise
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Names(s) of Investor
(Please Print)
/s/ X. Xxxxxxxxxxx
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/s/ X. Xxxxxxx
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Signature of Authorized
Representative of Investor
Type of Organization (e.g., Corporation, Trust, Limited Partnership,General
Partnership):
_________________________________________________________________
Date of Formation or Incorporation:______________________________
Jurisdiction of Formation or Incorporation:______________________
Type of Business: Banque
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Address of Principle Office:26 xxx Xxxxxxxx
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00000 Xxxxx - Xxxxxx
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Business Telephone Number: 00 00 00 00
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List any other person(s) who should receive copies of correspondence sent to the
organization, if any:
Name:____________________________________________________________
Address:_________________________________________________________
_________________________________________________________________
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ACCEPTED:
MEMRY CORPORATION
By:/s/ Xxxxx X. Xxxxx
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Title:______________________________
Date:_______________________________
At:_________________________________
4776b
(7)
