Exhibit 10.5
AGREEMENT
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AGREEMENT (this "Agreement"), dated as of December 17, 1999, by and among
(i) MEMRY HOLDINGS, S.A. (the "Buyer"), a Belgian corporation and a wholly-owned
subsidiary of Memry Corporation, a Delaware corporation (the "Parent"), (ii) the
Parent and (iii) G.I.M.V. (the "Seller").
W I T N E S S E T H:
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WHEREAS, Seller was previously a shareholder of Advanced Materials and
Technologies, N.V., since renamed Memry Europe, N.V. (the "Company"); and
WHEREAS, pursuant to Section 2.13 of a Stock Purchase Agreement, dated
October 30, 1998 (the "Purchase Agreement"), among Buyer, Seller and certain
other parties, Buyer owes the Seller $332,948.13 (the "Support Payment"); and
WHEREAS, Seller is willing to exchange its right to receive the Support
Payment for (i) 195,852 shares (the "Purchased Shares") of the Parent's common
stock, par value $0.01 per share (the "Parent Common Stock"), and (ii) a
Warrant, in the form of Annex I hereto, to purchase up to 39,170 additional
shares of Parent Common Stock at a purchase price of $2.00 per share (the
"Warrant"), and the Parent and the Buyer desire to issue and deliver the
Purchased Shares and the Warrant in exchange for the cancellation and
forgiveness of the Support Payment, all upon the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto, intending to be legally bound, agree as
follows:
1. Basic Transaction.
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1.1 Seller hereby forgives the obligation of both Buyer and Parent to
make the Support Payment pursuant to Section 2.13 of the Purchase Agreement, and
hereby irrevocably releases both Buyer and Parent from any such claim. In
exchange for such release and forgiveness, Buyer is hereby delivering to Seller
(i) a certificate, in the name of Seller, for the Purchased Shares, (ii) the
Warrant, and (iii) an opinion of Xxxx Xxxxx & Xxxxxxx LLP, the Parent's counsel,
in the form of Annex II hereto.
1.2 The parties agree that, for all tax and accounting purposes,
Seller shall be deemed to have paid $300,000 for the Purchased Shares and
$32,948.13 for the Warrant.
2. Seller's Representations and Warranties. In connection with the
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issuance of (i) the Purchased Shares, (ii) the Warrants, and (iii) the shares of
Parent Common Stock underlying the Warrant upon the exercise thereof ((i), (ii)
and (iii), collectively, the "Parent Securities") to the Seller, the Seller
hereby represents, warrants and acknowledges to the Buyer and the Parent as
follows:
2.1 The Parent Securities are being acquired by the Seller for its
own account, for investment purposes and not with a view to the sale or
distribution of all or any part of the Parent Securities, nor with any present
intention to sell or in any way distribute the same, as those terms are used in
the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
promulgated thereunder.
2.2 The Seller has sufficient knowledge and experience in financial
matters so as to be capable of evaluating the merits and risks of acquiring the
Parent Securities.
2.3 The Seller has reviewed copies of such documents and other
information as the Seller has deemed necessary in order to make an informed
investment decision with respect to the Seller's acquisition of the Parent
Securities.
2.4 The Seller understands that the Parent Securities may not be
sold, transferred or otherwise disposed of without registration under the Act or
the availability of an exemption therefrom, and that in the absence of an
effective registration statement covering the Parent Securities or an available
exemption from registration under the Act, the Parent Securities must be held
indefinitely. Further, the Seller understands and has the financial capability
of assuming the economic risk of an investment in the Parent Securities for an
indefinite period of time.
2.5 The Seller has been advised that the Seller will not be able to
dispose of the Parent Securities, or any interest therein, without first
complying with the relevant provisions of the Act and any applicable state
securities laws.
2.6 The Seller acknowledges that the Parent is under no obligation to
register the Parent Securities or to furnish any information or take any other
action to assist the undersigned in complying with the terms and conditions of
any exemption which might be available under the Act or any state securities
laws with respect to sales of the Parent Securities in the future.
2.7 Each certificate representing Parent Securities or any other
securities issued or issuable, directly or indirectly, in respect of the Parent
Securities upon any stock split, stock dividend, recapitalization, merger,
consolidation, share exchange or similar event, including pursuant to Section
4.1 below, shall be endorsed, stamped or otherwise imprinted with a legend in
substantially the following form:
THE SALE AND ISSUANCE OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES
LAW OF ANY STATE OR OTHER JURISDICTION. THESE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR
IN CONNECTION WITH, THE DISTRIBUTION THEREOF. THESE
SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED, OR TRANSFERRED
UNLESS (I) A REGISTRATION STATEMENT UNDER THE ACT IS IN
EFFECT AS TO THESE SECURITIES AND SUCH OFFER, SALE, PLEDGE,
OR TRANSFER IS IN COMPLIANCE WITH APPLICABLE SECURITIES LAW
OF ANY STATE OR OTHER JURISDICTION OR (II) THERE IS AN
OPINION OF COUNSEL OR OTHER EVIDENCE, IN EITHER CASE,
SATISFACTORY TO THE ISSUER OF THIS CERTIFICATE, THAT AN
EXEMPTION THEREFROM IS AVAILABLE AND THAT SUCH OFFER, SALE,
PLEDGE, OR TRANSFER IS IN COMPLIANCE WITH APPLICABLE
SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION.
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Seller agrees that the Parent may make a notation to this effect on its
records and instruct any transfer agent of the Parent Securities to impose
transfer restrictions on the shares represented by certificates bearing the
legend referred to in this section to enforce the provisions of this Agreement.
2.8 Seller has the capacity and power to enter into and execute this
Agreement and to perform fully Seller's obligations hereunder. The execution of
this Agreement and the consummation by Seller of the transactions contemplated
hereby have been approved and authorized by all necessary corporate action.
This Agreement has been duly executed by Seller and constitutes the legal, valid
and binding obligation of Seller, enforceable against Seller in accordance with
its terms, subject to applicable bankruptcy, liquidation and other concursus
rules.
2.9 The execution of this Agreement by Seller, the consummation of
the transactions contemplated hereby and the performance by Seller of this
Agreement in accordance with its terms and conditions will not: (i) require any
Permit (as defined in the Purchase Agreement), or any notice to, filing or
registration with, or permit, license, variance, waiver, exemption, franchise,
order, consent, authorization or approval of, any other person; (ii) violate,
conflict with or result in a breach of any provision of or constitute a default
(or an event which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination or modification of, or accelerate
the performance required by, or modify (or allow any other party thereto to
modify), any of the terms, conditions or provisions of (x) Seller's articles of
association or (y) any contract or other agreement to which Seller is a party or
by or to which Seller is bound or subject; or (iii) violate any judgment,
ruling, order, writ, injunction, award, decree, statute, law, ordinance, code,
rule or regulation of any court or foreign, federal, state, provincial,
regional, county or local government or any other governmental, regulatory or
administrative agency or authority which is applicable to Seller.
3. Disposition of Parent Securities.
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3.1 Seller hereby agrees that it shall make no disposition of the
Parent Securities unless and until:
3.1.1 Seller shall have notified the Parent of the proposed
disposition and provided a written summary of the terms and conditions of the
proposed disposition;
3.1.2 Seller shall have complied with all requirements of this
Agreement applicable to the disposition of the Parent Securities; and
3.1.3 Seller shall have provided the Parent with an opinion of
counsel (which counsel shall be Xxxxx & XxXxxxxx or other counsel that is
reasonably acceptable to the Parent), in form and substance satisfactory to the
Parent, that (i) the proposed disposition does not require registration of the
Parent Securities under the Act or (ii) all appropriate action necessary for
compliance with the registration requirements of the Act or of any exemption
from registration available under the Act (including Rule 144 promulgated
thereunder) has been taken.
3.2 The Parent shall not be required (i) to transfer on its books any
Parent Securities that have been sold or transferred in violation of the
provisions of this (S)3 or (ii) to treat as the owner of the Parent Securities,
or otherwise to accord voting or dividend rights to, any transferee to whom the
Parent Securities have been transferred in contravention of this Agreement.
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4. Anti-Dilution Protection.
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4.1 If, at any and each time subsequent to the date hereof and prior
to December 15, 2001, the "Exercise Price" of the Warrant is reduced by virtue
of the provisions of Section 3(b) thereof (or would have been so reduced by
virtue of said Section 3(b) but for the fact that the Warrant is then no longer
outstanding) to less than $1.70, then Parent will promptly grant and issue to
Seller an option, exercisable for thirty (30) days from its receipt thereof by
Seller, to purchase, in whole or in part, for a cash purchase price of $0.01 per
share, that number of shares of Parent Common Stock equal to the difference
between (X) the product of (i) 195,852 plus the number of options, if any,
previously delivered to Seller pursuant to this Section 4.1, multiplied by (ii)
a fraction, the numerator of which is equal to the lesser of $1.70 and the
Exercise Price of the Warrant immediately prior to such reduction in the
Exercise Price, and the denominator of which is equal to the Exercise Price of
the Warrant immediately after such reduction in the Exercise Price, minus (Y)
195,852 plus the number of options, if any, previously delivered to Seller
pursuant to this Section 4.1.
4.2 The obligations of Parent pursuant to Section 4.1 above are
conditioned upon and subject to Seller making such representations and
warranties to Parent as are reasonably required by Parent in order to ensure
compliance by Parent with applicable securities laws.
5. Representations and Covenants of Parent.
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5.1 The Parent hereby represents and warrants to the Sellers that,
but for the failure of the bid price of the Company's common stock to meet the
requirements of the National Association of Securities Dealers, Inc. ("NASD")
for listing on The Nasdaq Small Cap Market, the Company currently meets all
stated requirements for its common stock to be so listed.
5.2 The Parent agrees (i) to reapply to the NASD for listing of its
common stock on The Nasdaq Small Cap Market promptly upon the closing bid price
of such common stock being at or above $4.00 per share for twenty consecutive
trading days, and (ii) upon the filing of such application, to use its
reasonable efforts to effect such a listing. For purposes of providing the
benefits of Rule 144 promulgated under the Act to the Seller, the Parent agrees
to file with the U.S. Securities and Exchange Commission, in a timely manner,
all reports and other documents required of the Parent under the Act and the
U.S. Securities Exchange Act of 1934, as amended.
5.3 Each of Buyer and Parent has the capacity and power to enter into
and execute this Agreement and each other agreement and instrument to be entered
into by such party pursuant hereto and to perform fully its obligations
hereunder and thereunder. The execution by Buyer and Parent of this Agreement
and such other agreements and instruments, the consummation by Buyer and Parent
of the transactions contemplated hereby and thereby and the performance by Buyer
and Parent of their respective obligations hereunder and thereunder (including,
without limitation, the authorization of the issuance of the Parent Securities),
have been approved and authorized by all necessary corporate action of the Buyer
and the Parent, respectively. This Agreement has been duly executed by the Buyer
and the Parent and each other agreement and instrument to be entered into by the
Buyer or the Parent pursuant hereto has been duly executed by such party and
each constitutes the valid and binding obligation of the Buyer and/or the
Parent, as the case may be, enforceable against such party in accordance with
its respective terms, subject to applicable bankruptcy, liquidation and other
concursus rules.
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5.4 The execution of this Agreement and each other agreement to be
entered into by Buyer and Parent pursuant hereto, the consummation of the
transactions contemplated hereby and thereby and compliance with the provisions
hereof and thereof will not: (i) violate, conflict with or result in a breach of
any provision of or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or result in a
creation of any Lien upon any of the assets, properties or businesses of the
Buyer or the Parent under, any of the terms, conditions or provisions of (x) the
Buyer's Articles of Association or the Parent's Certificate of Incorporation and
by-laws, each as amended, or (y) any contract or other agreement to which the
Buyer or the Parent or any of their respective assets, properties or businesses
is subject; or (ii) violate any judgment, ruling, order, writ, injunction,
award, decree, statute, law, ordinance, code, rule or regulation of any Belgian,
U.S. or other court, or Belgian, U.S. or foreign or other federal, state,
provincial, regional, county or local government or any other governmental,
regulatory or administrative agency or authority which is applicable to the
Buyer or the Parent or any of their respective assets, properties or businesses;
or (iii) require any Permit, or any notice to, filing or registration with, or
permit, license, variance, waiver, exemption, franchise, order, consent,
authorization or approval of, any other person that has not been obtained.
5.5 The Purchased Securities are duly and validly issued, fully-paid
and non-assessable. Upon the proper exercise of the Warrants and the delivery of
shares of Parent Common Stock pursuant thereto, such shares shall be duly and
validly issued, fully-paid and non-assessable. The Parent has reserved 39,170
shares of Parent Common Stock for issuance upon the full exercise of the
Warrant. The Parent has filed all reports, registration statements, definitive
proxy statements and other documents and all amendments thereto and supplements
thereof required to be filed by it with the U.S. Securities and Exchange
Commission since October 31, 1996 (the "SEC Reports"), all of which have
complied in all material respects with all applicable requirements of the Act,
the Exchange Act and the rules and regulations promulgated thereunder. As of the
respective dates of filing in final or definitive form (or, if amended or
superseded by a subsequent filing, then on the date of such subsequent filing),
none of the Parent's SEC Reports contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
in which they were made, not misleading. The Parent has only one class of common
stock, which is not divided into series, and no classes of preferred stock,
outstanding. Upon delivery of the Parent Securities pursuant to this Agreement,
the Seller will acquire valid title thereto, free and clear of any Lien (except
for Liens arising under this Agreement and the agreements contemplated hereby,
Liens existing with respect to the Seller or created by the Seller and
restrictions imposed upon the transfer of securities by applicable securities
laws).
6. Miscellaneous.
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6.1 Entire Agreement. This Agreement contains the entire agreement
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among the parties with respect to the subject matter hereof and supersedes all
prior contracts and other agreements, written or oral, with respect hereto.
6.2 Waivers and Amendments. This Agreement may be amended, modified,
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superseded, cancelled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the parties hereto or, in
the case of a waiver, by the party waiving compliance. No delay on the part of
any party in exercising any right, power or privilege hereunder shall operate as
a waiver thereof, nor shall any waiver on the part of any party of any right,
power or privilege hereunder, nor any single or partial exercise of any right,
power or privilege hereunder, preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder.
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6.3 Governing Law. This Agreement shall be governed by, and
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construed and enforced in accordance with, and subject to, the laws of the State
of New York, U.S.A.
6.4 Jurisdiction. Any dispute arising from this Agreement shall be
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settled by arbitration in accordance with the Commercial Arbitration Rules (the
"Rules") and the Guidelines for Expediting Larger, Complex Commercial
Arbitrations of the American Arbitration Association (the "AAA"), and judgment
upon the award rendered in such arbitration may be entered in any court having
jurisdiction over it. The arbitration shall be conducted in New York, New York.
There shall be one arbitrator (referred to as the "Arbitrator"). The parties
shall endeavor to agree on the selection of an Arbitrator, but if no agreement
has been reached within 40 days of claimant's demand that an arbitrator be
selected the Arbitrator shall be selected by the AAA upon the request of any
party. The Arbitrator shall conduct himself as neutral, and be subject to
disqualification pursuant to Section 19 of the Rules. The Arbitrator shall be
compensated at his normal hourly or per diem rates for all time spent in
connection with the arbitration proceeding, and pending final award, appropriate
compensation and expenses shall be advanced equally by the parties. Within 15
days after the Arbitrator has been appointed, a preliminary hearing among the
Arbitrator and counsel for the parties shall be held for the purpose of evolving
a written plan for the management of the arbitration that shall promote the
efficient, expeditious and cost-effective conduct of the proceeding. Nothing in
this (S)7.4 shall prevent a Party from seeking injunctive relief pending a
decision of an arbitrator pursuant to this (S)7.4 or to enforce such a decision
in any court having jurisdiction over the Party against whom injunctive relief
or enforcement is sought.
6.5 Binding Effect; Benefit. This Agreement shall inure to the
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benefit of and be binding upon the parties hereto and their respective
successors and assigns. The Parent is a direct, contemplated third party
beneficiary of this Agreement and may bring action (in accordance with (S)6.4)
to enforce the terms hereof.
6.6 Variations in Pronouns. All pronouns and any variations thereof
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refer to the masculine, feminine or neuter, singular or plural, as the identity
of the person or persons may require.
6.7 Construction. While the Parent's counsel prepared this
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Agreement, the parties have participated jointly in the negotiation of this
Agreement. In the event an ambiguity or question of intent arises, this
Agreement shall be construed as if drafted jointly by the parties and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement. The word
"including" shall mean including without limitation.
6.8 Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
6.9 Headings. The headings in this Agreement are for reference
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purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
6.10 Severability. If any term, provision, covenant or restriction
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of this Agreement, or any part thereof, is held by a court of competent
jurisdiction or any foreign, federal, state, county or local government or any
other governmental, regulatory or administrative agency or authority to be
invalid, void, unenforceable or against public policy for any reason, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Buyer: MEMRY HOLDINGS, S.A.
By: /s/
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Name:
Title:
Parent: MEMRY CORPORATION
By: /s/
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Name:
Title:
Seller: G.I.M.V.
By: /s/
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Title:
By: /s/
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Name:
Title:
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Exhibit A
THE SALE AND ISSUANCE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER THE SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION. THESE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH,
THE DISTRIBUTION THEREOF. THESE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED, OR
TRANSFERRED UNLESS (I) A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO
THESE SECURITIES AND SUCH OFFER, SALE, PLEDGE, OR TRANSFER IS IN COMPLIANCE WITH
APPLICABLE SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION OR (II) THERE IS AN
OPINION OF COUNSEL OR OTHER EVIDENCE, IN EITHER CASE, SATISFACTORY TO THE ISSUER
OF THIS CERTIFICATE, THAT AN EXEMPTION THEREFROM IS AVAILABLE AND THAT SUCH
OFFER, SALE, PLEDGE, OR TRANSFER IS IN COMPLIANCE WITH APPLICABLE SECURITIES LAW
OF ANY STATE OR OTHER JURISDICTION.
FURTHERMORE, THE SALE, PLEDGE, HYPOTHECATION, TRANSFER OR OTHER DISPOSITION AND
THE VOTING OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF A CERTAIN AGREEMENT BY AND AMONG THE INITIAL HOLDER OF
THIS CERTIFICATE, MEMRY HOLDINGS, N.V., AN AFFILIATE OF THE ISSUER OF THIS
CERTIFICATE, AND THE ISSUER OF THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE
OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE ISSUER OF THIS
CERTIFICATE.
Warrant Cert. No. 99-1 Warrants to Purchase 39,170 Shares of Common Stock
Date: December 17, 1999
TRANSFERABLE WARRANTS
TO PURCHASE COMMON STOCK OF
MEMRY CORPORATION
THIS CERTIFIES THAT, for value received, G.I.M.V., with an address of Xxxxx
Xxxxxxxxxx 00, X-0000 Xxxxxxxxx, Xxxxxxx, or registered assignees, is entitled
to purchase from Memry Corporation, a corporation organized and existing under
the laws of the State of Delaware (hereinafter called the "Company"), at a
purchase price equal to the "Exercise Price" (as hereinafter defined), at any
time from and after the date hereof to and including the "Final Exercise Date"
(as hereinafter defined), 39,170 shares of the Company's Common Stock, $.01 par
value (the "Warrant Shares"), subject, however, to the provisions and upon the
terms and conditions hereinafter set forth. The Exercise Price shall initially
be Two and 00/100 Dollars ($2.00) per share, subject to adjustment as
hereinafter provided.
Certain capitalized terms used in this Warrant Certificate and not
otherwise defined are defined in paragraph 4 hereof. By accepting this Warrant
Certificate, the holder agrees to be bound by the terms hereof.
THESE WARRANTS ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
1. (a) Exercise of Warrants. The rights represented by this Warrant
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Certificate may be exercised by the registered holder hereof, in whole or in
part (but not as to a fractional share of Common Stock), by (i) the delivery of
this Warrant Certificate, together with a properly completed Subscription Form,
to the principal office of the Company at 00 Xxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxxx 00000 (or such other office or agency of the Company as it may
designate by notice in writing to the holder hereof) and (ii) payment to the
Company, in immediately available funds, of the Exercise Price for the Warrant
Shares being purchased. Certificates for the Warrant Shares so purchased
(together with a cash adjustment in lieu of any fraction of a share) shall be
delivered to the holder hereof within a reasonable time, not exceeding twenty
(20) business days, after the rights represented by this Warrant Certificate
shall have been so exercised and paid for, and, unless these Warrants have
expired, a new Warrant Certificate representing the number of Warrants, if any,
with respect to which this Warrant Certificate shall not then have been
exercised, in all other respects identical with this Warrant Certificate, shall
also be issued and delivered to the holder hereof within such time, or
appropriate notation may be made on this Warrant Certificate and the same
returned to such holder.
(b) Transfer Restriction Legend. Each certificate for Warrant
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Shares issued upon exercise of these Warrants shall bear the legends appearing
on the first page of this Warrant Certificate.
2. Special Agreements of the Company. The Company covenants and agrees
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that:
(a) Character of Warrant Shares. All Warrant Shares which may be
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issued upon the exercise of the Warrants represented hereby, upon issuance, will
be duly authorized, validly issued, fully paid and non-assessable and free from
all taxes, liens and charges with respect to the issue thereof, and without
limiting the generality of the foregoing, that it will take from to time all
such action as may be requisite to ensure that the par value per share (if any)
of the Common Stock is at all times equal to or less than the then effective
Exercise Price, and that it will refrain from taking any action which could
pursuant to the terms of the Warrants result in the Exercise Price per share
being less than the par value per share of the Common Stock;
(b) No Violations. The Company will take all such action as may be
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necessary to ensure that Warrant Shares may be so issued without violation of
any applicable United States state or federal law or regulation, or of any
requirements of any securities exchange or inter-dealer quotation system upon
which the Common Stock of the Company may be listed or quoted;
(c) Actions in Avoidance. The Company will not, by amendment of its
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Certificate or Articles of Incorporation or through any reorganization, transfer
of assets, consolidation, merger, issue or sale of securities or otherwise,
avoid or take any action which would have the effect of avoiding the observance
or performance of any of the terms to be observed or performed hereunder by the
Company, but will at all times in good faith assist in carrying out all of the
provisions of this Warrant Certificate and in taking all of such action as may
be necessary or appropriate in order to protect the rights of the holders of
these Warrants; and
(d) Financial Information. The Company will, if requested, provide
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each Warrant holder copies of all annual, quarterly and current reports required
to be filed by it pursuant to Section 13 or 15 of the Securities Exchange Act of
1934, as amended, and in addition, promptly after requested, such other
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information concerning the Company as any Warrant holder may reasonably require
(i) in order to comply with any law or governmental regulation, order of any
court, or order, inquiry or investigation of any governmental agency or
instrumentality, or (ii) in order to exercise any right or privilege of such
Warrant holder or to enforce any obligation of the Company under the Warrants or
any agreement or instrument executed and delivered in connection therewith.
3. (a) Certain Adjustments. The Exercise Price hereof and the number
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of shares of Common Stock that may be purchased upon the full exercise of this
Warrant shall be subject to adjustment from time to time as hereinafter
provided.
(b) Economic Diluting Issuances.
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(i) If the Company shall at any time or from time to time prior
to the Final Expiration Date issue shares of Common Stock, other than Excluded
Stock (as defined below), without consideration or for a consideration per share
less than the Exercise Price in effect immediately prior to the issuance of such
Common Stock, the Exercise Price in effect immediately prior to each such
issuance or adjustment shall forthwith be reduced, concurrently with such issue,
to a price (calculated to the nearest cent) equal to the consideration paid in
connection with such issuance.
(ii) For the purposes of any adjustment of the Exercise Price
pursuant to this clause (b), the following provisions shall be applicable:
1. In the case of the issuance of Common Stock for cash, the
consideration shall be deemed to be the amount of cash paid therefor after
deducting therefrom any discounts, commissions or other expenses allowed, paid
or incurred by the Company for any underwriting or otherwise in connection with
the issuance and sale thereof.
2. In the case of the issuance of Common Stock for a
consideration in whole or in part other than cash, the consideration other than
cash shall be deemed to be the fair market value thereof as determined by the
Board of Directors of the Company, irrespective of any accounting treatment;
provided, however, that such fair market value as determined by the Board of
Directors, together with any cash consideration being paid, shall not exceed the
aggregate Current Market Price of the shares of Common Stock being issued.
3. In the case of the issuance of (i) options to purchase or
rights to subscribe for Common Stock, (ii) securities by their terms convertible
into or exchangeable for Common Stock, or (iii) options to purchase or rights to
subscribe for such convertible or exchangeable securities:
(A) the aggregate maximum number of shares of Common Stock
deliverable upon exercise of such options to purchase or rights to subscribe for
Common Stock shall be deemed to have been issued at the time such options or
rights were issued and for a consideration equal to the consideration
(determined in the manner provided in subdivisions (1) and (2) above with the
proviso in subdivision (2) being applied to the number of shares of Common Stock
deliverable upon such exercise), if any, received by the Company upon the
issuance of such options or rights plus the minimum purchase price provided in
such options or rights for the Common Stock covered thereby;
(B) the aggregate maximum number of shares of Common Stock
deliverable
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upon conversion of or in exchange for any such convertible or exchangeable
securities or upon the exercise of options to purchase or rights to subscribe
for such convertible or exchangeable securities and subsequent conversions or
exchanges thereof shall be deemed to have been issued at the time such
securities were issued and for a consideration equal to the consideration
received by the Company for any such securities and related options or rights
(excluding any cash received on account of accrued interest or accrued
dividends), plus the additional consideration, if any, to be received by the
Company upon the conversion or exchange of such securities or the exercise of
any related options or rights (the consideration in each case to be determined
in the manner provided in subdivisions (1) and (2) above with the proviso in
subdivision (2) being applied to the number of shares of Common Stock
deliverable upon such conversion, exchange or exercise);
(C) on any change in the number of shares of Common Stock
deliverable upon exercise of any such options or rights or conversion of or
exchange for such convertible or exchangeable securities, other than a change
resulting from the antidilution provisions thereof, the Exercise Price shall
forthwith be readjusted to such Exercise Price as would have obtained had the
adjustment made upon the issuance of such options, rights or securities not
converted prior to such change or options or rights related to such securities
not converted prior to such change been made upon the basis of such change; and
(D) on the expiration of any such options or rights, the
termination of any such rights to convert or exchange or the expiration of any
options or rights related to such convertible or exchangeable securities, the
Exercise Price shall forthwith be readjusted to such Exercise Price as would
have obtained had the adjustment made upon the issuance of such options, rights,
securities or options or rights related to such securities been made upon the
basis of the issuance of only the number of shares of Common Stock actually
issued upon the conversion or exchange of such securities or upon the exercise
of the options or rights related to such securities.
(c) Stock Dividends, Subdivisions, Split-Ups. If, at any time prior to
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the Final Expiration Date, the number of shares of Common Stock outstanding is
increased by a stock dividend payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock, then, following the record
date fixed for the determination of holders of Common Stock entitled to receive
such stock dividend, subdivision or split-up, the Exercise Price shall be
appropriately decreased.
(d) Stock Combinations. If, at any time prior to the Final Expiration
------------------
Date, the number of shares of Common Stock outstanding is decreased by a
combination of the outstanding shares of Common Stock, then, following the
record date for such combination, the Exercise Price shall be appropriately
increased in proportion to such decrease in outstanding shares.
(e) Certain Dividends. If, at any time prior to the Final Expiration
-----------------
Date, the Company shall declare a cash dividend upon its Common Stock payable
otherwise than out of earnings or earned surplus or shall distribute to holders
of its Common Stock shares of its capital stock (other than Common Stock), stock
or other securities of other persons, evidences of indebtedness issued by the
Company or other persons, assets (excluding cash dividends and distributions) or
options or rights (excluding options to purchase and rights to subscribe for
Common Stock or other securities of the Company convertible into or exchangeable
for Common Stock), then, in each such case, immediately following the record
date fixed for the determination of the holders of Common Stock entitled to
receive such dividend or distribution, the Exercise Price in effect thereafter
shall be determined by multiplying the Exercise Price in effect immediately
prior to such record date by a fraction of which the numerator shall be an
amount equal to the
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difference of (x) the Current Market Price of one share of Common Stock minus
(y) the fair market value (as determined by the Board of Directors of the
Company, whose determination shall be conclusive) of the stock, securities,
evidences of indebtedness, assets, options or rights so distributed in respect
of one share of Common Stock, and of which the denominator shall be such Current
Market Price.
(f) All calculations under this Section 3 shall be made to the nearest
cent or to the nearest share, as the case may be.
(g) Whenever the Exercise Price shall be increased or decreased
pursuant to subsections (c), (d) and/or (e) of this Section 3, but not pursuant
to subsection (b) of this Section 3, the number of shares of Common Stock
acquirable upon the full exercise hereof shall be increased (in the case of a
decrease in the Exercise Price) or decreased (in the case of an increase in the
Exercise Price) to that number of shares of Common Stock obtained by multiplying
the number of shares for which this Warrant was fully exercisable immediately
before the event giving rise to the Exercise Price adjustment by a fraction, the
numerator of which is the Exercise Price immediately prior to such event and the
denominator of which is the Exercise Price immediately upon the consummation of
such event. Whenever the Exercise Price shall be adjusted as provided in Section
3, the Company shall prepare a statement showing the facts requiring such
adjustment and the Exercise Price that shall be in effect after such adjustment.
The Company shall cause a copy of such statement to be sent by mail, first class
postage prepaid, to the holder of this Warrant at its address appearing on the
Company's records. Where appropriate, such copy may be given in advance and may
be included as part of the notice required to be mailed under the provisions of
subsection (i) of this Section 3.
(h) Adjustments made pursuant to clauses (b), (c), (d) and (e) above
shall be made on the date such issuance, dividend, subdivision, split-up,
combination or distribution, as the case may be, is made, and, with respect to
clauses (c), (d) and (e), shall become effective at the opening of business on
the business day next following the record date for the determination of
stockholders entitled to such dividend, subdivision, split-up, combination or
distribution.
(i) In the event the Company shall propose to take any action of the
types described in clauses (c), (d) or (e) of this Section e, the Company shall
forward, at the same time and in the same manner, to the Holder of this Warrant
such notice, if any, which the Company shall give to the holders of capital
stock of the Company.
(j) In any case in which the provisions of this Section 3 shall
require that an adjustment shall become effective immediately after a record
date for an event, the Company may defer until the occurrence of such event
issuing to the holder of all or any part of this Warrant which is exercised
after such record date and before the occurrence of such event the additional
shares of capital stock issuable upon such exercise by reason of the adjustment
required by such event over and above the shares of capital stock issuable upon
such exercise before giving effect to such adjustment exercise; provided,
however, that the Company shall deliver to such holder a due xxxx or other
appropriate instrument evidencing such holder's right to receive such additional
shares upon the occurrence of the event requiring such adjustment.
(k) The sale or other disposition of any shares of Common Stock
theretofore held in the treasury of the Company shall be deemed to be an
issuance thereof.
4. Definitions. The terms defined in this paragraph, whenever used in
-----------
this Warrant Certificate, shall, unless the context otherwise requires, have the
respective meanings hereinafter specified:
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(a) "Common Stock" shall mean and include the Company's Common Stock,
------------
$.01 par value, and shall also include in case of any reorganization,
reclassification, consolidation, merger or sale of assets of the character
referred to in paragraph 3(c) hereof, the stock, securities or assets provided
for in such paragraph.
(b) "Company" shall mean Memry Corporation and also include any
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successor thereto with respect to the obligations hereunder, by merger,
consolidation or otherwise.
(c) "Current Market Price" shall mean, at any date and with respect to
--------------------
one share of Common Stock, the average of the daily closing prices for the 30
consecutive business days ending no more than five business days before the day
in question (as adjusted for any stock dividend, split, combination or
reclassification that took effect during such 30 business day period). The
closing price for each day shall be the last reported sales price regular way
or, in case no such reported sales took place on such day, the average of the
last reported bid and asked prices regular way, in either case on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading or as reported by Nasdaq (or if the Common Stock is not at the time
listed or admitted for trading on any such exchange or if prices of the Common
Stock are not reported by Nasdaq then such price shall be equal to the average
of the last reported bid and asked prices on such day as reported by The
National Quotation Bureau Incorporated or any similar reputable quotation and
reporting service, if such quotation is not reported by The National Quotation
Bureau Incorporated); provided, however, that if the Common Stock is not traded
in such manner that the quotations referred to herein are available for the
period required hereunder, the Current Market Price shall be determined in good
faith by the Board of Directors of the Company or, if such determination cannot
be made, by a nationally recognized independent investment banking firm selected
by the Board of Directors of the Company (or if such selection cannot be made,
by a nationally recognized independent investment banking firm selected by the
American Arbitration Association in accordance with its rules).
(d) "Excluded Stock" shall mean shares of Common Stock issued by the
--------------
Company (A) as a stock dividend payable in shares of Common Stock or upon any
subdivision or split-up of the outstanding shares of Common Stock, (B) in
connection with the issuance of shares of Common Stock (including any share of
Common Stock deemed to have been issued pursuant to subdivision 3 of Section
3(b)(ii) above as a result of the issuance of options or other convertible or
exchangeable securities) (appropriately adjusted for stock splits and
combinations) to directors, officers, or employees of, or consultants to, the
Company in connection with their services as directors or consultants of the
Company or their employment by the Company, (C) upon exercise and/or conversion
of any options, warrants, convertible notes and/or other securities outstanding
on the date hereof, (D) in exchange for all (or substantially all) of the assets
or all (or substantially all) of the equity of another entity (including by way
of stock purchase, asset purchase, merger and/or consolidation, and (E) pursuant
to the Agreement of even date herewith between the Company and the initial
holder hereof (including without limitation pursuant to Section 4.1 thereof).
(e) "Final Exercise Date" shall mean December 15, 2002.
-------------------
(f) "Warrant Certificate" shall mean this instrument evidencing the
-------------------
Warrants issued to the Warrant holder on this date.
(g) "Warrant holder(s)" shall mean the registered holder(s) of the
-----------------
Warrants.
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(h) "Warrants" shall mean the Warrants represented by this Warrant
--------
Certificate and all Warrants issued in exchange, transfer or replacement or
hereof or thereof.
(i) "Warrant Shares" shall mean the shares of Common Stock
--------------
purchased or purchasable by the holders of Warrants upon the exercise thereof
pursuant to paragraph 1.
5. Exchange, Replacement and Assignability. This Warrant Certificate is
---------------------------------------
exchangeable, upon the surrender hereof by the holder hereof at the office or
agency of the Company described in paragraph 1, for new Warrant Certificates of
like tenor and date representing in the aggregate the right to purchase the
number of Warrant Shares which may be purchased hereunder, each of such new
Warrants to represent the right to purchase such number of Warrant Shares as
shall be designated by such holder hereof at the time of such surrender. Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant Certificate or any such new Warrant Certificates
and, in the case of any such loss, theft or destruction, of a bond of indemnity
or other security satisfactory to the Company, or, in the case of any such
mutilation, upon surrender or cancellation of such mutilated Warrant
Certificate, the Company will issue to the holder hereof a new Warrant
Certificate of like tenor and date, in lieu of this Warrant Certificate or such
new Warrant Certificates, representing the right to purchase the number of
Warrant Shares which may be purchased hereunder. Subject to compliance with
paragraph 2, this Warrant and all rights hereunder (including without limitation
all registration rights) are transferable in whole or in part upon the books of
the Company by the registered holder hereof in person or by duly authorized
attorney, and a new Warrant Certificate shall be made and delivered by the
Company, of the same tenor and date as this Warrant Certificate but registered
in the name of the transferee, upon surrender of this Warrant Certificate, duly
endorsed, to the office or agency of the Company. All expenses, taxes (other
than stock transfer taxes, which shall be the obligation of the Warrant holder)
and other charges payable in connection with the preparation, execution and
delivery of Warrants pursuant to this paragraph 5 shall be paid by the Company.
6. No Rights as Stockholder; Survival of Rights. Neither this Warrant
---------------------------------------------
Certificate nor the Warrants represented hereby shall entitle the holder hereof
to any voting rights or any rights as a stockholder of the Company. The rights
and obligations of the Company, of the holder of these Warrants and of any
holder of Warrant Shares issued upon exercise of these Warrants shall survive
the exercise of these Warrants.
7. Governing Law; Amendments and Waivers; Headings. The validity,
-----------------------------------------------
interpretation and performance of this Warrant Certificate and each of its terms
and provisions shall be governed by the laws of the State of Connecticut. No
provision of this Warrant Certificate may be changed, waived, discharged or
terminated except by an instrument in writing signed by the party against which
enforcement of the same is sought. The headings in this Warrant Certificate are
for purposes of reference only and shall not affect the meaning or construction
of any of the provisions hereof.
8. Notices. Any notice or other document required or permitted to be
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given or delivered to Warrant holders shall be delivered at, or sent by
certified or registered mail to each Warrant holder at, the address shown or to
such other address as shall have been furnished to the Company by such Warrant
holder. Any notice or other document required or permitted to be given or
delivered to the Company shall be delivered at, or sent by certified or
registered mail to the principal office of the Company at 00 Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxxx 00000 Attention: Chairman, or such other address as
shall have been furnished to the Warrant holders by the Company.
-7-
IN WITNESS WHEREOF, Memry Corporation has caused this Warrant
Certificate to be signed by its duly authorized officer under its corporate
seal, duly attested by its authorized officer, and to be dated as of December
17, 1999.
MEMRY CORPORATION
By:___________________________
Name:
Title:
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NOTICE OF ELECTION
TO: MEMRY CORPORATION
The undersigned, the registered holder of Warrant Cert. No. 99-1, hereby
irrevocably elects to exercise the purchase right represented by such Warrant
Certificate for, and to purchase thereunder, ____________________ shares of
Common Stock of Memry Corporation and herewith makes payment of U.S.____________
therefor, and requests that the certificate for the Common Stock, which will be
issued in the following name, be delivered to the attention of the undersigned
at the following address:
____________________________________________
____________________________________________
____________________________________________
The undersigned hereby represents and warrants to the Company that the
representations made by it on December __, 1999, with respect to the original
acquisition of the warrants described herein in the Agreement between the
Company, the undersigned and Memry Europe, N.V., are true and correct as of the
date hereof with respect to the undersigned's purchase of the Common Stock
described above.
Date:______________________
Name:_________________________
By:___________________________
Title:________________________
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