Exhibit 10.38
Amendment No. 2
to
Amended and Restated
Asset Purchase Agreement
between
Memry Corporation
and
Raychem Corporation
This AMENDMENT NO. 2 to Amended and Restated Asset Purchase Agreement
(this "Amendment"), is made as of this 11th day of August, 1996, by and between
Memry Corporation, a Delaware corporation (the "Buyer"), and Raychem
Corporation, a Delaware corporation (the "Seller"). The Buyer and the Seller are
referred to collectively herein as the "Parties."
RECITAL
Buyer and Seller have entered into an Amended and Restated Asset Purchase
Agreement, dated as of May 10, 1996, as amended by Amendment No. 1 thereto dated
as of June 28, 1996 (said agreement, as so amended, the "Purchase Agreement").
It is the desire of the Parties to amend certain provisions of the Purchase
Agreement as set forth herein.
ACCORDINGLY, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows:
AGREEMENT
1. All capitalized terms used herein but not otherwise defined herein
shall have the meanings ascribed thereto in the Purchase Agreement.
2. The Purchase Agreement is hereby amended by substituting for Exhibit G
thereto Exhibit G hereto.
3. Except as specifically set forth herein, the terms of the Purchase
Agreement and the exhibits and schedules thereto shall remain unmodified and in
full force and effect.
4. This Amendment shall be governed by and construed according to the laws
of the State of California, excluding the choice of laws rules thereof. This
Amendment may be executed in counterparts, each of which shall be deemed an
original, but which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
RAYCHEM CORPORATION MEMRY CORPORATION
By:/s/ Xxxxxx X. Xxxxx By:/s/ Xxxxx X. Xxxxx
-------------------------- -----------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: President & CEO
EXHIBIT G
PURCHASE PRICE ALLOCATION
Cash Purchase Price: $4,000,000
Severance Liability: 200,000
Inventory Adjustment: 150,000
$0.01 Warrants: 2,285,000
$2.00 Warrants: 25,000
----------
$6,660,000
Patent Rights: $2,000,000
Inventory: 1,293,221
Leasehold Improvements: 900,000
Machinery and equipment: 1,200,000
Goodwill: 1,266,779
----------
$6,660,000
