Exhibit 10.15
ESCROW AGREEMENT
This Escrow Agreement (this "Agreement"), entered into as of the 22nd day
of December, 1994, by and between (i) Memry Corporation, a Delaware corporation
("Memry"), (ii) Connecticut Innovations, Incorporated, a specially chartered
Connecticut corporation ("CII"), and (iii) Xxxx Xxxxx & Xxxxxxx, as escrow agent
hereunder (the "Escrow Agent").
WITNESSETH
WHEREAS, Memry and CII are parties to a Convertible Subordinated Debenture
Purchase Agreement, dated as of December 22, 1994 (the "Purchase Agreement");
and
WHEREAS, the Purchase Agreement requires that Memry register with the
Securities and Exchange Commission CII's resale of its Registrable Securities
(as defined in the Purchase Agreement) not later than February 28, 1995, and
maintain such registration (the "Resale Registration") for a period of three
years from the Closing Date (as defined in the Purchase Agreement); and
WHEREAS, as a condition to its entering into of the Purchase Agreement,
CII has required that this Agreement be executed and delivered in order to
provide financial wherewithal in the event that Memry is unable or does not
maintain the effectiveness of such registration; and
WHEREAS, the parties hereto desire to enter into this Agreement on the
terms and conditions set forth herein;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which is acknowledged by
each of the parties hereto, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein and not defined
herein shall have the meanings attributed thereto in the Purchase Agreement.
2. Escrow Agent's Appointment and Duties. Memry and CII each hereby
appoint the Escrow Agent as escrow agent hereunder, and the Escrow Agent hereby
accepts such appointment. The Escrow Agent's duties hereunder are limited solely
to the holding of the Escrowed Funds (as hereinafter defined) and the release of
the same as provided herein, the giving of notices to CII and Memry as provided
herein and such other duties as are specifically set forth herein. No duties or
obligations not expressly set forth herein shall be implied to the Escrow Agent.
3. Escrowed Funds. On the date hereof, Memry has deposited in escrow with
the Escrow Agent $45,000 (the "Escrowed Funds"). The Escrow Agent hereby
acknowledges receipt of a check from CII, in the amount of $45,000, representing
the Escrowed Funds. Memry and CII agree and acknowledge that the Escrow Agent
will maintain the Escrowed Funds in a non-interest bearing account.
4. Use of Escrowed Funds; Settlement.
a. Settlements by Escrow Agent. The Escrow Agent shall retain
possession of the Escrowed Funds in its trust account except as follows: (i) for
disposals of Escrowed Funds to a successor escrow agent pursuant to Section 5(b)
below; (ii) upon its receipt at any time on or prior to February 28, 1998, of a
Certificate (defined in Section 4(b) below) executed by both Memry and CII
instructing it as to how to disburse all or any portion of the Escrowed Funds
then remaining, the Escrow Agent shall promptly disburse the specified Escrowed
Funds in accordance with said Certificate; (iii) upon receipt of a written
certificate signed solely by CII instructing the Escrow Agent to disburse all or
any portion of the Escrow Funds to Memry, the Escrow Agent shall promptly so
disburse the specified Escrowed Funds; and (iv) on March 10, 1998, the Escrow
Agent shall disburse any remaining Escrowed Funds to (or, upon the receipt of
written instructions from Memry, for the account of) Memry. In determining
whether to disburse the Escrowed Funds from time to time in accordance with the
above-stated provisions of clauses (ii) or (iii) of this Section 4.a, the Escrow
Agent shall rely exclusively upon the written notice received by it hereunder or
the fact that a certain written notice has not been received by it, as the case
may be, notwithstanding either (i) any notice to the contrary which may be
received by the Escrow Agent from any other person or entity or (ii) any
knowledge which it may have or may be deemed to have as to the correctness of
the content of any notice given to it hereunder.
b. Requests by Memry for Disbursements. Memry covenants and agrees
to use its best efforts to pay the fees and expenses of legal counsel and
accountants in connection with the maintenance of the reporting requirements of
the Securities Act of 1934, as amended (the "1934 Act"), and maintenance of
CII's ability to sell its Registrable Securities pursuant to the Resale
Registration (the "Contemplated Purpose"). However, if at any time and from time
to time between the date hereof and February 18, 1998, Memry is unable to pay
such fees and expenses in the ordinary course of business, Memry may give CII
written notice (a "Notice") of its desire to use the Escrowed Funds for such
fees and expenses, an explanation of the nature of the Contemplated Purpose, the
amount of the Escrowed Funds desired to be used, and why it is necessary or
appropriate for the Escrowed Funds (rather than Memry's other funds) to be
applied for such Contemplated Purpose. Each Notice shall be accompanied by a
written certificate (a "Certificate"), signed by Memry and providing a space for
the signature of CII, instructing the Escrow Agent to disburse all or a
designated portion of the Escrowed Funds in the manner specified in the Notice
(which manner of disbursement shall also be specified in the Certificate).
- 2 -
c. Responses to Notices by CII. CII shall respond to all Notices
within fifteen (15) business days of its receipt thereof. Such response shall
consist of either (i) signing the Certificate in the space provided for such
purpose and sending the Certificate to the Escrow Agent, or (ii) returning the
Certificate to Memry unsigned. In the event that the relevant Notice requests
that Escrowed Funds be used for any purpose other than the Contemplated Purpose,
CII may sign or refuse to sign the Certificate in its absolute and sole
discretion, and need not provide Memry with any reason for its actions with
respect thereto. In the event that the relevant Notice requests that Escrowed
Funds be applied only for the Contemplated Purpose, CII shall in good faith
determine if the use of the Escrowed Funds constitutes an "Appropriate Use" of
said funds within the guidelines set forth in Section 5.d below. If CII
determines that the use of the Escrowed Funds pursuant to the Notice is an
Appropriate Use, it shall, within the aforesaid fifteen (15) day period, sign
the Certificate and send it to the Escrow Agent. If CII determines that the use
of the Escrowed Funds pursuant to the Notice is not an Appropriate Use, it may
either (i) sign the Certificate and deliver it to the Escrow Agent, or (ii)
return the Certificate to Memry unsigned with an explanation as to why CII has
concluded that the use of the Escrowed Funds described in the Notice is not an
Appropriate Use.
d. Guidelines for Determining Appropriate Use. In determining
whether or not a proposed use of Escrowed Funds for the Contemplated Purpose as
described in a Notice constitutes an "Appropriate Use", CII shall consider the
following factors: (i) that it is the intent of Memry and CII on the date of
this Agreement that the Escrowed Funds shall only be applied to the Contemplated
Purpose where Memry would not otherwise have the financial wherewithal to
continue CII's ability to sell its Registrable Securities pursuant to the Resale
Registration; and (ii) that it is also the intent of Memry and CII on the date
of this Agreement that, where Memry does not have the ability in the ordinary
course of business to pay the fees and expenses of its legal counsel and/or
accountants in connection with the maintenance of the reporting requirements of
the 1934 Act and maintenance of CII's ability to sell its Registrable Securities
pursuant to the Registration Statement, the Escrowed Funds would be used for
that purpose (it not being the intent of the parties that Memry would in such
instance be denied use of the Escrowed Funds with the intention of enabling CII
to realize the benefits of various penalties which would be imposed upon Memry
under the Purchase Agreement and the Securities issued pursuant thereto if CII
were unable to sell its Registrable Securities pursuant to the Registration
Statement).
5. Other Provisions Regarding the Escrow Agent.
a. Indemnification. CII and Memry acknowledge that the Escrow Agent is
acting solely as an escrow agent at their request and for their convenience and
that the Escrow Agent shall not be liable to either party for any act or
omission on its part unless taken or suffered in willful disregard of this
Agreement or involving gross negligence on the part of the Escrow Agent. CII and
Memry jointly and severally agree to defend, indemnify and hold the Escrow
- 3 -
Agent harmless from and against all costs, claims and expenses (including
attorneys' fees and disbursements) incurred in connection with the performance
of the Escrow Agent's duties hereunder, except (i) with respect to actions or
omissions taken or suffered by the Escrow Agent in willful disregard of this
Agreement or involving gross negligence on the part of the Escrow Agent, and
(ii) that solely Memry shall be liable to the Escrow Agent for the Escrow
Agent's costs of preparing this Agreement. The Escrow Agent shall promptly
notify CII and Memry in writing upon the incurrence of any costs, claims and
expenses with respect to which the Escrow Agent is entitled to be so
indemnified. The Escrow Agent may act or refrain from acting in respect of any
matter referred to herein in full reliance upon and with the advice of counsel
which may be selected by it and shall be fully protected in so acting or
refraining from acting upon the advice of such counsel. The provisions of this
Section 5.a shall survive the termination of this Agreement.
b. Replacement of Escrow Agent.
(i) Resignation of Escrow Agent. The Escrow Agent may
resign and be discharged of the obligations created by
this Agreement at any time by executing and delivering
to CII and Memry notice of its resignation as Escrow
Agent and specifying the date (which shall not be less
than twenty (20) days from the date of such notice) when
such resignation is intended to take effect. Upon
receiving such notice of resignation, CII and Memry
shall endeavor to agree upon a successor Escrow Agent to
be appointed by written instrument, in duplicate,
executed by CII and Memry, one copy of which instrument
shall be delivered to the successor Escrow Agent. If no
agreement has been reached as aforesaid and no successor
Escrow Agent shall have been so appointed and have
accepted such appointment within twenty (20) days after
such notice of resignation, Memry shall appoint a
successor Escrow Agent. The resignation of the Escrow
Agent shall become effective upon the acceptance of
appointment by the successor Escrow Agent.
(ii) Discharge of Escrow Agent. At any time, CII and Memry may
discharge the Escrow Agent by jointly executing and
delivering to the Escrow Agent notice of its discharge as
escrow agent hereunder and specifying (i) the date when
such discharge shall take effect and (ii) whom the
successor Escrow Agent is, in which even the Escrow Agent
will be discharged of its duties as of such date.
(iii) Successor Escrow Agent. If the Escrow Agent shall be
dissolved, or if its property or affairs shall be taken
under the control of any state or federal court or
administrative body or agency because of
- 4 -
insolvency or bankruptcy or for any other reason, a vacancy
shall forthwith exist in the office of Escrow Agent, and
within a period of thirty (30) days thereafter, a successor
shall be appointed by the mutual agreement of CII and
Memry. If no agreement has been reached as aforesaid and no
successor Escrow Agent shall have been so appointed and
have accepted such appointment within such thirty (30) day
period, Memry shall appoint a successor Escrow Agent.
(iv) Instruments in Writing. Appointments made by Memry and/or
CII under this Section 5.b. shall be made by an instrument
or instruments in writing. Copies of each instrument shall
be delivered by CII and Memry to the predecessor Escrow
Agent and to the successor Escrow Agent so appointed.
(v) Successor Escrow Agents. Any successor Escrow Agent
appointed hereunder shall execute, acknowledge and
deliver to CII and Memry an instrument accepting such
appointment hereunder, and thereupon such successor
Escrow Agent, without any further act, deed or
conveyance, shall become duly vested with all of the
property, rights, powers, trusts, duties and obligations
of its predecessor hereunder, with the same effect as if
originally named Escrow Agent herein. Notwithstanding
any other provision of this Agreement, upon request of
such successor Escrow Agent, the Escrow Agent ceasing to
act, CII and Memry shall execute and deliver an
instrument transferring to such successor Escrow Agent
all the property, rights, powers and trusts created
hereby of the Escrow Agent so ceasing to act hereunder,
and the Escrow Agent so ceasing to act shall immediately
deliver to the successor Escrow Agent the Escrowed Funds
then held by it hereunder.
6. Governing Law; Jurisdiction; Modification or Waiver. This Agreement
shall be governed and construed in accordance with the laws of the State of
Connecticut, regardless of any principles or conflicts of law thereunder. The
parties hereto agree that the Superior Court, State of Connecticut, Judicial
District of Stamford/Norwalk, shall have sole jurisdiction over any disputes
relating to this Agreement, and that they will submit to the jurisdiction of
said court and that any and all proceedings to enforce the terms of this
Agreement shall be brought in that court. The terms and provisions of this
Agreement may only be modified or waived by a writing executed and delivered by
all parties hereto.
7. Notices. All notices, demands, approvals, consents, elections or other
communications permitted or required to be given hereunder (the "Notices") shall
be in writing and shall be deemed given (i) three (3) days after being posted
certified mail, return receipt
- 5 -
requested, postage prepaid, or (ii) when delivered, if sent by hand delivery or
by overnight courier service. Notices shall be addressed as follows:
If to Memry: Xx. Xxxxx X. Xxxxx
Memry Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
With a copy to: Xxxxx X. Xxxxx, Esq.
Xxxx Xxxxx & Xxxxxxx
Xxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
If to CII: Xx. Xxxxx Xxxxxxx
Connecticut Innovations, Incorporated
00 Xxxx Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
With a copy to: Xxxxx X. Xxxxx, Esq.
Xxxxxxx & Xxxxxxx
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000-0000
If to Escrow Agent: Xxxxx X. Xxxxx, Esq.
Xxxx Xxxxx & Xxxxxxx
Xxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
or to such address as any party may from time to time specify in writing to the
others. If such notice is given by personal delivery, the person to whom such
notice is given shall, if requested, acknowledge receipt of such notice and the
date of such receipt on a copy of such notice.
8. No Third Party Rights. This Agreement is intended to be solely for the
benefit of the parties hereto and is not intended to confer any benefits upon,
or create any rights in favor of, any person other than the parties hereto,
except as expressly provided to the contrary elsewhere in this Agreement.
9. Binding Effect. Subject to Section 5, this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs executors, administrators, legal representatives, successors and assigns.
- 6 -
10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be considered an original but all of which
together shall be deemed to constitute one and the same document.
- 7 -
IN WITNESS WHEREOF, the parties have executed this Agreement as of this
22nd day of December, 1994.
MEMRY CORPORATION
By: /s/ Xxxxx X. Xxxxx
----------------------------------------------
Its: President & CEO
CONNECTICUT INNOVATIONS, INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Its: Acting Pres. & Exec. Dir.
XXXX XXXXX & XXXXXXX
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------
a partner
- 8 -
