EXHIBIT 10.49
Investor:Dominion Financial Group International LDC
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SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated as of June 26, 1997, 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:
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WHEREAS, 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 ___________ shares of the Company's Common Stock, par
value $0.01 per share ("Common Stock"), at a purchase price of $1.50 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. Subject to the terms and conditions of this
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Agreement:
(a) Investor hereby subscribes for, and upon the Company's acceptance
of such subscription as evidenced by the Company's execution of this Agreement,
the Company agrees to sell
and issue to Investor TWO HUNDRED THOUSAND (200,000) shares of Common Stock (the
"Securities"), for an aggregate purchase price of $300,000.00. The "Purchase
Price"), being $1.50 per share. The sale of the Securities pursuant hereto is
part of the Offering, which Offering shall terminate not later than __________
___, 199_.
(b) 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
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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;
(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
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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;
(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.
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(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;
(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 or Rule 904, as applicable, 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
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harmless, the Company, each corporation and entity affiliated with the Company,
and the stockholders, partners, officers, directors, employees, professional
advisors, and agents
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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
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(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 Cayman Islands, B.W.I. and
that the sale of the Securities has occurred in Cayman Islands, B.W.I.
(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, 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)
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Name(s) of Investor(s)
(Please Print)
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Signature of Investor(s)
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Signature of Joint Investor
(if any)
Home Address:
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Home Telephone Number:
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ACCEPTED AND AGREED:
MEMRY CORPORATION
By:
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Name:
Title:
Date:
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SIGNATURE PAGE - ORGANIZATION ONLY
(INDIVIDUALS ON PREVIOUS PAGE)
Dominion Financial Group International LDC
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Name(s) of Investor(s)
(Please Print)
/s/ X. Xxxxxxxxx
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X. Xxxxxxxxx
Secretary
Type of Organization (e.g., Corporation, Trust, Limited Partnership, General
Partnership):
Corporation
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Jurisdiction of Formation or Incorporation: Cayman Islands
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Address of Principal Office: X.X. Xxx 0000, 0xx Xxxxx, Xxxxxx
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National Building, Elgin Avenue, Xxxxxx Town, Grand Cayman
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Business Telephone Number: 000-000-0000
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List any other person(s) who should receive copies of correspondence sent to the
organization, if any:
Name: DFG Management Inc. (Attn: Xx. Xxx Xxxxxxxx)
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Address: 0000 Xxx xx Xxx Xxxx., Xxxxx 000
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Xxxxx, Xxxxxxx 00000, XXX
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ACCEPTED AND AGREED:
MEMRY CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Chairman, President & CEO
Date: 6/26/97
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