Exhibit 10.43
Investor: ________________________________________________
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated as of June ___, 1996, 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").
THE SECURITIES SOLD HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. THE SECURITIES COVERED HEREBY ARE BEING OFFERED IN RELIANCE UPON
REGULATION S UNDER SUCH ACT AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO U.S. PERSONS (OTHER THAN DISTRIBUTORS) UNLESS SUCH SECURITIES ARE
REGISTERED UNDER SUCH ACT, OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
SUCH ACT IS AVAILABLE. TERMS USED IN THIS PARAGRAPH HAVE THE MEANINGS GIVEN TO
THEM BY REGULATION S.
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W I T N E S S E T H:
WHEREAS, the Company has entered into an Asset Purchase Agreement, dated
as of May 10, 1996, as amended, with Raychem Corporation ("Raychem") pursuant to
which the Company will acquire certain assets of Raychem relating to the
business of designing, developing, processing, manufacturing, and marketing
shape memory alloy components (the "Acquisition"), which acquisition is
scheduled to close on or around June 28, 1996 (such actual date of closing, the
"Closing Date"); and
WHEREAS, as part of the financing for the Acquisition, the Company desires
to issue, in a securities offering pursuant to Regulation S under the United
States Securities Act of 1933, as amended (the "Securities Act"), up to
2,500,000 shares of the Company's Common Stock, par value $0.01 per share
("Common Stock"), at a purchase price of $2.00 per share (the "Offering"); and
WHEREAS, the Company wishes to sell to Investor, and Investor wishes to
purchase, the number of shares of Common Stock set forth below, on the terms and
conditions set forth in this Agreement, as part of the Offering.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
promises contained herein, the Company and Investor hereby agree as follows:
1. Purchase and Delivery.
(a) Subject to the terms and conditions of this Agreement, including
without limitation the consummation of the Acquisition, Investor hereby
subscribes for, and upon the Company's acceptance of such subscription on the
Closing Date as evidenced by the Company's execution of this Agreement on the
Closing Date, the Company agrees to sell and issue to Investor ________________
______________ ( ) shares of Common Stock (the "Securities"), for an
aggregate purchase price of ___________________ (the "Purchase Price"), being
$2.00 per share. The sale of the Securities pursuant hereto is part of the
Offering, which Offering shall terminate not later than June 24, 1996 (the
"Termination Date").
(b) Pending the closing of the Acquisition, the Purchase Price shall
be deposited through electronic transfer prior to or on the Termination Date in
the trust account maintained by Xxxx Xxxxx & Xxxxxxx, the Company's counsel
("FD&H"), pursuant to the wire instructions set forth on Schedule A attached
hereto. Upon and simultaneously with the closing of the Acquisition on the
Closing Date, FD&H shall electronically transfer the Purchase Price to the
Company; provided, however, if for any reason the Acquisition is not consummated
on or by July 15, 1996, FD&H shall return the Purchase Price to Investor,
without interest, unless otherwise agreed to by the parties.
(c) Upon consummation of the Acquisition, the Company agrees that it
shall cause to be delivered to Investor at Investor's address set forth on the
signature page hereof a certificate representing the Securities promptly after
the expiration of the forty-day restricted period under Regulation S of the
Securities Act.
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 any portion of the Securities
purchased hereby 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 the
Securities and no other person has a direct or indirect beneficial interest in
the Securities;
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(c) Investor acknowledges and agrees that the Company has informed
Investor that the Securities are not registered under any securities laws, and
therefore that (absent registration under or exemption from applicable
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 has such knowledge and experience in financial and business
matters that Investor is capable of evaluating the merits and risks of the
acquisition 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 its investment.
Investor is financially able to hold the Securities for an indefinite period of
time;
(e) Investor is not relying on the Company or any of its directors,
officers, employees, or agents for guidance with respect 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 that 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) 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;
(g) Investor is not any of the following (each of the
following, a "U.S. Person"):
(i) any natural person resident in the United States;
(ii) any partnership or corporation organized or incorporated
under the laws of the United States;
(iii) any estate of which any executor or administrator is a
U.S. Person;
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(iv) any trust of which any trustee is a U.S. Person;
(v) any agency or branch of a foreign entity located in
the United States;
(vi) any non-discretionary account or similar account
(other than an estate or trust) held by a dealer or other fiduciary for
the benefit or account of a U.S. Person;
(vii) any discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary organized,
incorporated, or (if an individual) resident in the United States; and
(viii) any partnership or corporation if:
(A) organized or incorporated under the laws of any
foreign jurisdiction; and
(B) formed by a U.S. Person principally for the purpose
of investing in securities not registered under the Securities Act,
unless it is organized or incorporated, and owned, by accredited
investors (as defined in Rule 501(a) under the Securities Act) who
are not natural persons, estates or trusts.
(h) 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;
(i) 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 with its terms; and (iv) the
undersigned natural person, as well as Investor, will be duly subject to the
provisions of Paragraph 3;
(j) Investor is an "accredited investor" as such term is defined in
Rule 501 adopted pursuant to the United States Securities Act;
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(k) Investor understands and 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 (other than distributors, as defined in Regulation S) unless
the Securities are registered under the Securities Act, or pursuant to an
exemption from the registration requirements of the Securities Act;
(l) Until 40 days after the Closing Date, Investor will offer or
sell the Securities only in accordance with Rule 903 of Regulation S under the
Securities Act; and
(m) None of Investor, its affiliates (as defined in Rule 251
promulgated under the Securities Act) nor any persons acting on its or their
behalf have engaged or will engage in any activity undertaken for the purpose
of, or that could reasonably be expected to have the effect of, conditioning the
market in the United States for any of the Securities, and it and they have
complied and will comply with the offering restrictions requirement of
Regulation S with respect to the Securities.
3. Indemnification. Investor hereby indemnifies, and agrees to hold
harmless, the Company, each corporation and entity affiliated with the Company,
and the stockholders, 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. Miscellaneous
(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 inure to the benefit of and be binding upon
the successors, assigns, legal representatives,
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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.
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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:_____________________________________________
ACCEPTED AND AGREED:
MEMRY CORPORATION
By:
---------------------------------
Name:
Title:
Date:
ACCEPTED AND AGREED WITH RESPECT TO SECTION 1(b) ONLY:
XXXX XXXXX & XXXXXXX
By: ______________________________, a partner
Name:
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SIGNATURE PAGE - ORGANIZATION ONLY
(INDIVIDUALS ON PREVIOUS PAGE)
________________________________
Name(s) of Investor(s)
(Please Print)
________________________________
Signature of Investor(s)
Type of Organization (e.g., Corporation, Trust, Limited
Partnership, General Partnership):
________________________________________________________________________________
Jurisdiction of Formation or Incorporation:_____________________________________
Address of Principal Office:____________________________________________________
________________________________________________________________________________
Business Telephone Number:______________________________________________________
List any other person(s) who should receive copies of correspondence sent to the
organization, if any:
Name:___________________________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
ACCEPTED AND AGREED:
MEMRY CORPORATION
By:____________________________________
Name:
Title:
Date:
ACCEPTED AND AGREED WITH RESPECT TO SECTION 1(b) ONLY:
XXXX XXXXX & XXXXXXX
By:_______________________________, a partner
Name:
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SCHEDULE A
WIRE INSTRUCTIONS
The Purchase Price is to be sent by electronic transfer, in immediately
available funds, pursuant to the terms of this Agreement, to:
Shawmut Bank
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx
Attention: Wire transfer department
ABA Number 000000000, for credit to the account of Xxxx Xxxxx & Xxxxxxx Trust
Account, account number 6674 7952
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Form of Securities Purchase Agreement executed, as of June 28, 1996, by:
1. Conoreq S.A. - 1,000,000 shares of Common Stock for $2,000,000.
2. Banque Pour L'Industrie Francaise ref: GAN - 250,000 shares of Common
Stock for $500,000.
3. Banque Privee Xxxxxx Xx Xxxxxxxxxx S.A. - 750,000 shares of Common Stock
for $1,500,000.
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