EXHIBIT 10.48
AGREEMENT
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Agreement, made as of the 5th day of June, 1997, by and among Memry
Corporation, a Delaware corporation (the "Company"), Xxxxxx Machine Corporation,
a Delaware corporation and a wholly-owned subsidiary of the Company ("Xxxxxx"),
and Xxxxx X. Xxxxxxxx ("Xxxxxxxx").
W I T N E S S E T H:
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WHEREAS, the purpose of this Agreement is to effectuate an amicable
conclusion of the prior relationships between the parties;
NOW, THEREFORE, in consideration of the above recital and further in
consideration of the mutual promises and forbearance anticipated hereunder, the
parties, intending to be bound legally, agree as follows:
1. Effective Date of Termination of Employment.
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Xxxxxxxx'x employment with the Company and Xxxxxx is hereby terminated
effective as of March 15, 1997 (such date, the "Termination Date"). The
termination of Xxxxxxxx'x employment shall be deemed to have been a termination
without cause.
2. Accrued Vacation.
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The parties agrees that the Company and Xxxxxx shall pay to Xxxxxxxx
$19,232 as payment in full of all accrued vacation owed to Xxxxxxxx, payable as
follows: $5,000 upon the execution of this Agreement, and $12,232 on March 15,
1998 (the "First Anniversary").
3. Consideration.
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The parties agree that:
(a) the Company shall pay Xxxxxxxx her base salary currently in effect,
being $125,000, payable semi-monthly, until the First Anniversary;
(b) the Company shall continue to provide Xxxxxxxx with health and medical
benefits (the "Benefits") without cost until the First Anniversary. In the
event that (i) Xxxxxxxx elects to discontinue benefits prior to the First
Anniversary, she shall be paid the cash value of the Benefits for the period of
time remaining until the First Anniversary (in equal semi-monthly payments), and
(ii) the Benefits are discontinued prior to the First Anniversary, Xxxxxxxx
shall, at her option, be entitled to either accept coverage under any successor
Benefits plan provided to the employees of the Company generally or elect to
discontinue
receiving Benefits and receive the cash value of the same pursuant to Section
3(b)(i) above; and
(c) the Company shall pay Xxxxxxxx, on or prior to May 31, 1998, a
severance payment in the amount of $36,750.
4. Options and SARs.
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(a) Xxxxxxxx agrees that on or prior to May 31, 1998 she will exercise in
full options granted to her by the Company as of April 30, 1996, being incentive
stock options exercisable to purchase 24,500 shares of Common Stock at an
exercise price of $1.50 per share (the "Options"), pursuant to the terms for the
exercise of the Options set forth in the NonTransferable Incentive Stock Option
Agreement, dated as of April 30, 1996, between the Company and Xxxxxxxx
regarding the Options. The Company agrees that it will use its best efforts to
file and effect prior to May 31, 1998 a registration statement on Form S-8
covering the issuance of 24,500 shares of Common Stock to Xxxxxxxx upon the
exercise of the Options.
(b) Xxxxxxxx and the Company agree that the additional incentive stock
options exercisable to purchase 12,000 shares of Common Stock at an exercise
price of $1.78 issued to Xxxxxxxx as of December 5, 1996 and 1,500 share
appreciation rights issued to Xxxxxxxx as of July 19, 1994 shall be cancelled
effective as of July 30, 1997.
(c) The Company agrees to use its best efforts to cooperate with Xxxxxxxx
in any attempt by her to exercise any of the options or rights described in
Sections 4(a) or 4(b) hereof in accordance with their respective terms.
5. Resignation.
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Xxxxxxxx hereby resigns, effective as of the Termination Date, as an
officer of the Company as well as an officer and director of Xxxxxx.
6. Transition.
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Xxxxxxxx agrees that, until the First Anniversary, she shall be reasonably
available, upon the Company's prior reasonable request, to answer questions that
any of the Company's officers may have with respect to activities that were
previously the responsibility of Xxxxxxxx in order to facilitate the transition.
7. Release by Xxxxxxxx.
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(a) In consideration of, among other things, the agreements of the Company
set forth herein, Xxxxxxxx hereby releases on behalf of herself, her heirs,
successors and assigns, the Company, Xxxxxx and each of their respective
affiliates and divisions and their respective successors, assigns, officers,
directors, agents, employees and representatives, from
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and against any and all claims, demands, grievances, and causes of action,
administrative, court or otherwise, known or unknown, which she has, had, or may
have had against any of them through the Termination Date, including, but not
limited to: (i) any claim arising under the Age Discrimination in Employment
Act, 29 U.S.C. (S)(S) 621 et seq., as amended, and/or Title VII of the Civil
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Rights Act of 1964, 42 U.S.C. (S)(S) 2000e et seq., as amended, and/or the
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Americans with Disabilities Act, 42 U.S.C. (S)(S)12111-12117; (ii) any claim for
employment discrimination, whether based on a federal, state or local statute or
court decision; (iii) any claim, whether statutory, common law or otherwise,
arising out of the terms and conditions of Xxxxxxxx'x employment or relationship
with the Company and/or Xxxxxx, the termination of her employment and
relationship with the Company and/or Xxxxxx, or the events surrounding that
termination; and (iv) any claim for attorneys' fees, costs, disbursements and
the like; provided, however, such release shall not be deemed to preclude any
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right Xxxxxxxx may have to be indemnified by the Company and Xxxxxx pursuant to
the Certificates of Incorporation and/or By-Laws of the Company and Xxxxxx or
pursuant to the Delaware General Corporation Law.
(b) Xxxxxxxx acknowledges that the Company has advised her to consult an
attorney prior to executing this Agreement, and she further acknowledges that
she has retained Xxxxxx X. Xxxxxxxx, Esq., of Simsbury, Connecticut, to advise
her in connection with this Agreement and the termination of her employment with
the Company and Xxxxxx. Xxxxxxxx acknowledges that she understands all of the
provisions of this Agreement and that she has been given the opportunity to take
at least 21 days to consider this Agreement and release and consult with her
personal financial, tax and legal advisors before signing this Agreement. She
voluntarily accepts the terms stated in this Agreement and release and
acknowledges that she is not under any duress, coercion, or undue influence.
She further acknowledges that she has had sufficient time to consider her
options, and elects to sign this Agreement and release on this date, while
acknowledging that the Company has given her the opportunity to take at least 21
days within which to consider the release.
(c) Xxxxxxxx acknowledges that for a period of seven (7) days after she
signs this Agreement and release, she may change her mind and revoke her
acceptance of the terms hereof by giving written notice to Xxxxx X. Xxxxx at the
address set forth in Section 7(b) hereof within that seven-day period. This
Agreement and release will not become effective or enforceable until the seven-
day revocation period has expired.
(d) Xxxxxxxx acknowledges and agrees that, if she exercises her right to
revoke this Agreement and release, she will not be entitled to any benefits
hereunder (although she will still be entitled to whatever pay and benefits to
which she is entitled as a matter of law). She further acknowledges and agrees
that she must advise the Company in writing, after the expiration of the seven-
day revocation period, that she has elected not to revoke this Agreement and
release by signing and returning to the Company the form annexed hereto.
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8. General Provisions.
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(a) In the event that any provision or Section of this Agreement shall be
held invalid or unreasonable, the same shall not affect in any respect
whatsoever the validity of the remainder of this Agreement which shall be deemed
severable, and such invalid or unreasonable provision(s) shall be deemed to have
been amended, and the parties hereto agree to execute all documents necessary to
evidence such amendment, so as to modify any such invalid or unreasonable
provision and to carry out the intent of the terms and provisions of this
Agreement to the greatest extent possible and to render such provisions of this
Agreement enforceable and/or reasonable in all respects as modified.
(b) Any written notice under this Agreement shall be personally delivered
or sent by certified or registered mail, return receipt requested and postage
prepaid to (i) the Company or Xxxxxx, to the attention of Xxxxx X. Xxxxx, Memry
Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000, and (ii)
Xxxxxxxx at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx 00000, or to such other
address or addresses as any of the parties shall designate in accordance with
this Section.
(c) This Agreement shall be construed in accordance with, and its
performance shall be governed by, the laws of the State of Connecticut. The
parties hereby waive the right to a jury trial.
(d) Except as otherwise noted herein, this Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof, and
supersedes all prior agreements, representations and promises by either party or
between parties.
(e) No modification of this Agreement shall be effective unless in a
writing executed by both parties hereto.
(f) Nothing in this Agreement shall prevent Xxxxxxxx from enforcing the
terms of this Agreement, and Xxxxxxxx has not waived or released any claim for a
breach of this Agreement.
(g) The Company is hereby paying $1,500 by check to Xxxxxx Xxxxxxxx
Associates CF Account, in order to assist in defraying the charges of Xxxxxxxx'x
legal counsel with respect to this Agreement.
9. Breach of Agreement
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(a) In the event that either party shall claim that the other has failed to
comply with any of the terms of this Agreement, all remaining provisions of the
Agreement shall remain valid and binding upon the parties. The parties do
hereby stipulate and agree that any dispute or controversy arising out of the
performance or interpretation of this Agreement shall not be submitted to the
jurisdiction of any competent court, but shall instead be addressed
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in the following manner and sequence, which shall be a condition precedent to
any court action that might otherwise be taken.
(b) The party alleging that the other has failed to comply with any of the
terms of this Agreement shall provide notice pursuant to Section 8(b) and a
reasonable period of time, that shall not be less than ten (10) days, in which
to cure the alleged breach, or otherwise respond.
(c) If the dispute remains unresolved, either party may initiate
arbitration/alternate dispute resolution (ADR) in Connecticut in accordance with
the Commercial Arbitration and Dispute Resolution Rules of the American
Arbitration Association. Such arbitration/ADR shall first proceed with an
attempt to mediate such dispute. Should mediation be unsuccessful,
arbitration/ADR shall follow, and the award rendered by the Arbitrator(s) shall
be conclusive and binding upon the parties, shall be incorporated herein by
reference, and shall be enforceable in any court of competent jurisdiction.
(d) The party initiating arbitration/ADR shall pay all preliminary
administrative fees for dispute resolution. The responding party shall pay all
preliminary administrative fees, if any, with respect to any counterclaims. The
Arbitrator(s) shall determine the manner in which all of the fees and costs of
the arbitration/ADR shall ultimately be apportioned; however, each party shall
be responsible for the payment of its own attorneys' fees incurred in connection
with the arbitration/ADR.
10. Sale of the Company.
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In the event that the Board of Directors initiates a sale of all or
substantially all of the assets or stock of the Company which sale is
consummated, all monetary obligations then owed by the Company to Xxxxxxxx shall
be accelerated and due to be paid to Xxxxxxxx simultaneously with the closing of
such sale.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date and year first written above.
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
MEMRY CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Chairman, President and CEO
XXXXXX MACHINE CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President
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[Form of Notice Not To Revoke]
___________ ___, 1997
Xxxxx X. Xxxxx
Memry Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Dear Xxx:
Pursuant to Section 6(d) of the Agreement dated as of June ___, 1997 among
Memry Corporation, Xxxxxx Machine Corporation and myself, I am notifying you
that I have elected not to revoke such Agreement and the release by me set forth
in Section 6 of such Agreement.
Very truly yours,
Xxxxx X. Xxxxxxxx
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