Exhibit 10.42
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN AND WILL
BE SOLD IN RELIANCE UPON EXEMPTIONS THEREUNDER. THE SALE OR OTHER DISPOSITION OF
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF IS RESTRICTED IN
ACCORDANCE WITH THAT ACT AND THOSE LAWS, MAY ONLY BE MADE PURSUANT TO A
REGISTRATION UNDER THAT ACT AND THOSE LAWS OR PURSUANT TO AN EXEMPTION FROM SUCH
REGISTRATION AND, IN THE EVENT OF SUCH AN UNREGISTERED SALE OR OTHER
DISPOSITION, IS PROHIBITED UNLESS MEMRY CORPORATION RECEIVES AN OPINION OF
COUNSEL SATISFACTORY TO IT AND ITS COUNSEL THAT SUCH SALE OR OTHER DISPOSITION
CAN BE MADE WITHOUT REGISTRATION UNDER THAT ACT OR THOSE LAWS.
Warrant Cert. No. 97-1 Warrants to Purchase
18,000 Shares of
Common Stock
TRANSFERABLE WARRANTS
TO PURCHASE COMMON STOCK OF
MEMRY CORPORATION
THIS CERTIFIES THAT, for value received, Dominion Financial Group
International, LDC with an address of ▇▇▇▇ ▇▇▇-▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, 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),
18,000 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 One and 50/100
Dollars ($1.50) per share, subject to adjustment as hereinafter provided.
Certain capitalized terms used in this Warrant Certificate and not
otherwise defined are defined in paragraph 8 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
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 ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (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 Shares
issued upon exercise of these Warrants shall bear the legend appearing on the
first page of this Warrant Certificate and any additional legend which the
Company, in its sole discretion, may deem appropriate at such time.
2. Representations and Warranties of Holder. Each holder of the Warrants
and Warrant Shares, by acceptance hereof, represents and warrants to the Company
and acknowledges and intends that the Company rely thereon, as follows:
(a) Such holder will not sell, assign, pledge, transfer, or
otherwise dispose of, whether directly or indirectly, all or a portion of the
Warrants or any Warrant Shares obtained upon the exercise of any Warrants to any
person or entity without complying with applicable securities laws and the
transaction restrictions set forth in paragraph 4 hereof;
(b) Such holder is acquiring the Warrants and any Warrant Shares
obtained upon exercise of any Warrants for its own account, for investment
purposes only and not with a view to any distribution of such Warrants or
Warrant Shares and no other person has a direct or indirect beneficial interest
in such Warrants or the Warrant Shares;
(c) Such holder acknowledges and agrees that the Company has
informed it that the Warrants and the Warrant Shares are not registered under
any securities laws, are subject to substantial restrictions on transfer, and
may not be transferred for an indefinite period of time;
(d) Such holder has investigated the purchase of the Warrants and
the Warrant Shares to the extent it deems necessary or
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desirable, and the Company has provided it with any assistance in connection
therewith which it has requested. Such holder has such knowledge and experience
in financial and business matters that it is capable of evaluating the merits
and risks of the acquisition of the Warrants and the Warrant Shares and of
making an informed investment decision with respect thereto and it has the
ability to bear the economic risk of an investment in the Company and to
withstand a complete loss of its investment. Such holder is financially able to
hold the Warrants and the Warrant Shares for an indefinite period of time;
(e) Such holder 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
it has been furnished by the Company with all information such holder has deemed
necessary or appropriate in order to form an informed investment decision
concerning the purchase of the Warrants and the Warrant Shares. Such holder has
been afforded an opportunity to ask questions of, and receive answers from,
representatives of the Company concerning the terms and conditions of such
holder's purchase of Warrants and any Warrant Shares and has been afforded the
opportunity to obtain any additional information (to the extent 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) Such holder has not used a purchaser
representative;
(g) Such holder 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;
(h) Such holder (a) has not been organized for the purpose of
purchasing the Warrants and any Warrant Shares, or (b) has been organized for
the purpose of purchasing the Warrants and any Warrant Shares and has made the
representations and warranties contained herein with respect to and on behalf of
all of the beneficial owners thereof; and
(i) Such holder is an "accredited investor" as such term is defined
in Rule 501 adopted pursuant to the Securities Act.
The Company may condition any exercise of the Warrants and issuance of Warrant
Shares upon its receipt of the representations and covenants given above by the
original Warrant holder with respect to such Warrant Shares.
3. Indemnification. Each holder of this Warrant Certificate, by acceptance
hereof, hereby indemnifies, and agrees to hold harmless, the Company, each
corporation and entity
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affiliated with the Company, and the shareholders, 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 the holder hereof or any breach of any of such
holder's representations and warranties.
4. Transaction Restrictions. Each holder of this Warrant Certificate, by
acceptance hereof, understands and acknowledges that none of these Warrants or
any Warrant Shares have been registered under the Securities Act and may not be
offered, sold, pledged, hypothecated or otherwise disposed of in the absence of
a registration statement in effect with respect to the offer and disposition of
said securities under the Securities Act or pursuant to an exemption from the
registration requirements of the Securities Act. Each holder of this Warrant
Certificate, by acceptance hereof, represents that it will offer or sell the
Securities only in accordance with the Securities Act and, in the case of offers
and sales made in accordance with exemptions therefrom, only after having
delivered to the Company a satisfactory legal opinion that said offer and sale
is in effect so exempt. Each holder hereof agrees and acknowledges that every
certificate representing the Warrants and the Warrant Shares will bear a legend
to the foregoing effect.
5. Special Agreements of the Company. The Company covenants and agrees
that:
(a) Character of Warrant Shares. All Warrant Shares which may be
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
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
Certificate or Articles of Incorporation or
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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
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
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.
6. (a) Certain Adjustments. The number of Warrants represented hereby and
the Exercise Price for each such Warrant shall be subject to adjustment from
time to time as hereinafter provided.
(b) Stock Splits and Reverse Splits. In the event that the Company
shall at any time subdivide its outstanding shares of Common Stock into a
greater number of shares (including without limitation by way of a stock
dividend), the Exercise Price in effect immediately prior to such subdivision
shall be proportionately reduced and the number of Warrants represented by this
Warrant Certificate immediately prior to such subdivision shall be
proportionately increased, and conversely, in the event that the outstanding
shares of Common Stock of the Company shall at any time be combined into a
smaller number of shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased and the number of Warrants
represented by this Warrant Certificate immediately prior to such subdivision
shall be proportionately decreased.
(c) Reorganizations and Asset Sales. If any capital reorganization
or reclassification of the capital stock of the Company, or any consolidation or
merger of the Company with another corporation, or the sale of all or
substantially all of its assets to another corporation or a tender or exchange
offer for shares of Common Stock, or any liquidation of all or substantially all
of the Company's assets shall be effected in such a way that holders of Common
Stock shall be entitled to, or will upon the declaration of
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a liquidating dividend, receive stock, securities or assets with respect to or
in exchange for Common Stock, then the following provisions shall apply:
(i) As a condition of such reorganization, reclassification,
consolidation, merger, sale, tender offer, exchange offer or
liquidation (except as otherwise provided below in this paragraph
6(c)), lawful and adequate provisions shall be made whereby each
holder of Warrants shall thereafter have the right to receive upon
the terms and conditions specified in this Warrant Certificate and
in lieu of the Warrant Shares immediately theretofore receivable
upon the exercise of each Warrant, such shares of stock, securities
or assets as may be issued or payable with respect to or in exchange
for a number of outstanding shares of such Common Stock equal to the
number of Warrant Shares immediately theretofore so receivable had
such reorganization, reclassification, consolidation, merger, sale,
tender offer, exchange offer or liquidation not taken place, and in
any such case appropriate provision shall be made with respect to
the rights and interests of such holder to the end that the
provisions hereof (including without limitation provisions for
adjustments of the Exercise Price and the number of Warrants
represented hereby) shall therefore be applicable, as nearly as may
be, in relation to any shares of stock, securities or assets
thereafter deliverable upon the exercise of these Warrants.
(ii) In the event of a merger or consolidation of the Company
with or into another corporation as a result of which a number of
shares of Common Stock of the surviving corporation greater or
lesser than the number of shares of Common Stock of the Company
outstanding immediately prior to such merger or consolidation are
issuable to holders of Common Stock or the Company, then the
Exercise Price in effect immediately prior to such merger or
consolidation shall be adjusted in the same manner as though there
were a subdivision or combination of the outstanding shares of
Common Stock of the Company, and the number of Warrants represented
hereby shall be proportionately adjusted for such adjustment in the
Exercise Price.
(d) Notice of Adjustment. Whenever the Exercise Price and/or the
number of Warrants represented hereby shall be adjusted as herein provided, or
the rights of Warrant holders shall change by reason of other events specified
herein, the Company shall compute the adjusted Exercise Price and the adjusted
number of Warrants represented hereby in accordance with the provisions hereof
and shall prepare a certificate signed by its President, Vice President,
Treasurer or Secretary setting forth the adjusted
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Exercise Price and number of Warrants represented hereby or specifying the other
shares of stock, securities or assets receivable as a result of such change in
rights, and showing in reasonable detail the facts and calculations upon which
such adjustments or other changes are based. The Company shall promptly cause to
be mailed to the holder of these Warrants copies of such officer's certificate
together with a notice stating that the Exercise Price and/or the number of
Warrants represented hereby, as the case may be, have been adjusted and setting
forth the adjusted Exercise Price and number of Warrants represented hereby.
(e) Notifications to Holders. In case at any time the Company
proposes:
(i) to declare any dividend upon any class of
stock other than preferred stock;
(ii) to make any special dividend or other distribution to the
holders of any class of stock, other than dividends of Common Stock
paid to holders of Common Stock;
(iii) to offer for subscription pro rata to the holders of its
securities any additional securities or other rights;
(iv) to effect any capital reorganization, or reclassification
of the capital stock of the Company, or consolidation or merger of
the Company with another corporation, or sale or other disposition
of all or substantially all of its assets; or
(v) to effect a voluntary or involuntary dissolution,
liquidation or winding-up of the Company;
then, in any one or more of said cases, the Company shall give the holder of
these Warrants (A) at least twenty (20) days' (but not more than ninety (90)
days') prior written notice of the date on which the books of the Company shall
close or a record shall be taken for such dividend, distribution or subscription
rights or for determining rights to vote in respect of such issuance,
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up, and (B) in the case of any such issuance,
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up, at least twenty (20) days' (but not more than ninety
(90) days) prior written notice of the date when the same shall take place. Such
notice in accordance with the foregoing clause (A) shall also specify, in the
case of any such dividend, distribution or subscription rights, the date on
which the holders of any securities shall be entitled thereto, and such notice
in accordance with the foregoing clause (B) shall also specify the date on which
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the holders of any securities shall be entitled to exchange their securities for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up, as the case may be.
(f) Company to Protect Rights. If any event or condition occurs as
to which other provisions of this paragraph 6 are not strictly applicable or if
strictly applicable would not fairly protect the exercise or purchase rights of
these Warrants in accordance with the essential intent and principles of such
provisions, then the Company shall make an adjustment in the application of such
provisions, in accordance with such essential intent and principles, so as to
protect such exercise and purchase rights as aforesaid.
7. Piggy-back Registration Rights.
(a) Right to Piggy-back. If at any time prior to the Final Exercise
Date the Company proposes to file a registration statement in order to register
any of its equity securities (as defined in the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) under the Securities Act (other than in
connection with a merger, and acquisition or an offering of securities under an
employee benefit plan), and the registration form to be used may be used for the
registration (a "Piggy-Back Registration") of Warrants and Warrant Shares, the
Company will give prior written notice to all registered holders of Warrants and
Warrant Shares of its intention to effect such a registration and will, subject
to paragraph 7(b) and 7(c) hereof, include in such registration all Warrants and
Warrant Shares with respect to which the Company has received written requests
for inclusion therein within 20 days after the receipt of the Company's notice.
Notwithstanding the foregoing, the Company shall have the right at any time
after it shall have given written notice pursuant to paragraph 7(a)
(irrespective of whether a written request for inclusion of any Warrants and/or
Warrant Shares shall have been made) to elect not to file any such proposed
registration statement or to withdraw the same after the filing but prior to the
effective date thereof.
(b) Limitation on Inclusion. If the registration of which the
Company gives notice pursuant to paragraph 7(a) is for an underwritten offering,
only securities which are to be included in the underwriting may be included in
the registration. Notwithstanding any provision of paragraph 7(a) to the
contrary, if the underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten or determines that any
other limitation is advisable, the underwriter may exclude or otherwise limit
the number of Warrants or Warrant Shares to be included in the registration and
underwriting. The Company shall so advise all holders (except those holders who
have not indicated to the Company their decision to distribute any of their
Warrants or Warrant Shares through such underwriting), and the number of
8
Warrants and/or Warrant Shares that may be included in such registration and
underwriting, if any, shall be allocated among such holders as determined by the
Company or otherwise as the underwriter shall advise. No Warrants or Warrant
Shares excluded from the underwriting by reason of the underwriter's marketing
limitation shall be included in such registration. If any holder disapproved of
any such underwriting, such person may elect to withdraw therefrom by written
notice to the Company and the underwriter. The Warrants and Warrant Shares so
withdrawn from such underwriting shall also be withdrawn from such registration.
In addition, whether or not such registration is underwritten, the inclusion of
Warrants or Warrant Shares in any particular registration shall be subject to
the rights of existing security holders to bar or limit the inclusion thereof.
(c) Two Piggy-Back Registrations Only. The Company shall only be
obligated to offer the opportunity for two Piggy-Back Registrations, pursuant to
this paragraph 7, with respect to all Warrants and Warrant Shares.
(d) Expenses of Registration. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings, or
qualifications pursuant to paragraph 7(a), including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company, transportation expenses, mailing
expenses, and the fees and disbursements of one counsel selected by the selling
holders of Warrants and Warrant Shares to represent them shall be borne and paid
by the Company.
(e) Registration Conditions and Obligations. The obligations of the
Company with respect to Piggy-Back Registrations under this paragraph 7 are
subject to the conditions that each holder of the Warrants and Warrant Shares
which are to be included in any registration:
(i) cooperates with the Company in preparing such
registration, and executed such agreements as may be reasonable
necessary in favor of any underwriter selected by the Company; and
(ii) promptly supplies the Company with all information,
documents, representations and agreements requested by the Company
and reasonably necessary in connection with the registration of such
holder's Warrants and Warrant Shares,
(iii) agrees not to effect sales of Warrants and Warrant
Shares after receipt of telegraphic or written notice from the
Company to suspend sales to permit the Company to correct or update
a registration statement or prospectus.
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In connection with any Piggy-Back Registration involving an underwritten public
offering, each holder of Warrants and Warrant Shares included therein shall
agree, if requested by the underwriters, not to effect any public sale of
Warrant and Warrant Shares not included in such registration during the seven
(7) days prior to, and the ninety (90) day period beginning on the effective
date of such underwritten registration.
Each holder of the Warrants and Warrant Shares included in a registration
statement effected pursuant to this paragraph 7 shall, at the end of the period
during which the Company keeps the registration statement current and effective,
discontinue sales of Warrants and Warrant Shares pursuant to such registration
statement upon receipt of notice from the Company of its intention to remove
from registration the Warrants or Warrant Shares covered by such registration
statement which remain unsold, and such holder shall notify the Company of the
number of Warrants and Warrant Shares registered which remain unsold immediately
upon receipt of such notice from the Company.
(f) Opinion of Counsel as Alternative. The registration rights
granted to the holders of Warrants and Warrant Shares under this paragraph 7
shall be subject to the condition that any registration of Warrants and Warrant
Shares proposed to be effected need not be effected if the Company shall deliver
to the holders requesting such registration an opinion satisfactory to such
holders and their counsel to the effect that the proposed disposition for which
registration was requested does not require registration under the Securities
Act.
(g) Company's Registration Obligations. Whenever the Company is
required to register any Warrants and Warrant Shares pursuant to the terms
hereof, the Company will use its best efforts to effect the registration for
sale of such Warrants and Warrant Shares in accordance with the intended method
of disposition thereof and pursuant thereto the Company will as expeditiously as
reasonably possible:
(i) Prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement with respect
to such Warrants and Warrant Shares, which registration statement
will state that the holders of Warrants and Warrant Shares covered
thereby may sell such Warrants and Warrant Shares under such
registration statement, and use its best efforts to cause such
registration statement to become effective and to remain effective
as provided herein; provided that before filing a registration
statement or prospectus or any amendments or supplements thereto,
the Company will furnish to counsel selected by a majority of the
holders of Warrants and Warrant Shares covered by such registration
statement copies of all such documents
10
proposed to be filed, which documents will be subject to the review
of such counsel;
(ii) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such
registration statement effective until two years after the date
hereof or until after distribution is completed (if sooner), and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration
statement, including without limitation, (A) setting forth any
information necessary in order that such registration statement not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading, (B) reflecting in the prospectus included in such
registration statement any facts or events arising after the
effective date of such registration statement (or the most recent
post-effective amendment thereto) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement, (C) to include any prospectus
required by Section 10(a)(3) of the Securities Act, or (D) to
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information therein;
(iii) Furnish to each seller of Warrants and Warrant Shares
such number of copies of such registration statement, each amendment
and supplement thereto, the prospectus included in such registration
statement including each preliminary prospectus) and such other
documents as such seller may reasonably request in order to
facilitate the disposition of Warrants and Warrant Shares owned by
such seller;
(iv) Use its best efforts to register or qualify such Warrants
and Warrant Shares under such securities or blue sky laws of such
jurisdictions as may reasonably be requested and do any and all
other acts and things which may be reasonably necessary or advisable
to enable such seller to consummate the disposition in such
jurisdictions of the Warrants and Warrant Shares owned by such
seller (provided that the Company shall not be required to (A)
qualify generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this paragraph
7(g)(iv), (B) subject
11
itself to taxation in any such jurisdiction or (C) consent generally
to service of process in any such jurisdiction);
(v) Notify each seller of such Warrants and Warrant Shares, at
any time when a prospectus relating thereto is required to be
delivered under the Securities Act, when it becomes aware of the
happening of any event as a result of which the prospectus included
in such registration statement (as then in effect) contains an
untrue statement of a material fact or omits to state any fact
necessary to make the statements therein not misleading in light of
the circumstances then existing, and, as promptly as practicable
thereafter, prepare in sufficient quantities a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Warrants and Warrant Shares, such prospectus will
not contain an untrue statement of a material fact or omit to state
any fact necessary to make the statements therein not misleading in
light of the circumstances then existing;
(vi) Cause all such Warrants and Warrant Shares so requested
by the holders thereof to be listed on each securities exchange on
which similar securities issued by the Company are then listed.
(vii) Provide a transfer agent and registrar for all of such
Warrants and Warrant Shares not later than the effective date of
such registration statement;
(viii) Enter into such customary agreements (including an
underwriting agreement in customary form) and take all such other
actions as the holders of majority of the Warrants and Warrant
Shares to be included in the registration statement reasonably
request in order to expedite or facilitate the disposition of such
Warrants and/or Warrant Shares;
(ix) Make available for inspection by any seller of Warrants
and/or Warrant Shares, any underwriter participating in any
disposition pursuant to such registration statement, any attorney,
accountant or other agent retained by any such seller or
underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's
officers, directors and employees to supply all information
reasonably requested by any such seller, under writer, attorney,
accountant or agent in connection with such registration statement
to the extent such information is necessary in such seller's
reasonable
12
judgment to satisfy any of its obligations under applicable law; and
(x) Use its best efforts to obtain an appropriate opinion for
the Company's counsel and a cold-comfort letter from the Company's
independent public accountants in customary form and covering such
matters of the type customarily covered by opinions of Company
counsel and cold-comfort letters in similar registrations as the
holders of a majority of the Warrants and Warrant Shares being sold
reasonably request.
Each holder of the Warrants and Warrant Shares shall be deemed to have agreed by
acquisition of such Warrants and Warrant Shares that, upon receipt of any notice
from the Company of the happening of any event of the kind described in
paragraph 7(g)(v) hereof, such holder will forthwith discontinue such holder's
disposition of Warrants and Warrant Shares until such holder's receipt of the
copies of the supplemented or amended prospectus contemplated by paragraph
7(g)(v) hereof and, if so directed by the Company, will deliver to the Company
(at the holder's expense) all copies, other than permanent file copies, then in
such holder's possession of the prospectus covering such Warrants and Warrant
Shares current at the time of receipt of such notice. In the event the Company
shall give any such notice, the period mentioned in paragraph 7(g)(ii) hereof
shall be extended by the number of days during such period from and including
the date of the giving of such notice to and including the date when each seller
of any Warrants and Warrant Shares covered by such registration statement shall
have received the copies of the supplemented or amended prospectus contemplated
by paragraph 7(g)(v) hereof.
(h) Indemnification.
(i) The Company agrees to indemnify, to the extent permitted
by law, each holder of the Warrants and Warrant Shares, its officers
and directors and each person who otherwise controls such holder
(within the meaning of the Securities Act) (collectively,
"Indemnitees") against all losses, claims, damages, liabilities and
expenses caused by any untrue statement of a material fact contained
in any registration statement (including any post-effective
amendment thereto), prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission of a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are
caused by any information furnished in writing to the Company by or
on behalf of such holder expressly for use therein or by such
holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto which the
Company is not required to
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deliver after the Company has furnished such holder with a
sufficient number of copies of the same, or any violation by the
Company of the Securities Act or any rule or regulation promulgated
under the Securities Act applicable to the Company and relating to
action or inaction required of the Company in connection with any
such registration, qualification or compliance. In connection with
an underwritten public offering, the Company will indemnify such
underwriters, their officers and directors and each person who
controls such underwriters (within the meaning of the Securities
Act) to the same extent as provided above with respect to the
indemnification of the holders of Warrants and Warrant Shares.
(ii) The Company will reimburse each such Indemnitee for any
legal and other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability
or action; provided, however, that this paragraph 7(h)(ii) shall not
apply to amounts paid in settlement of any such claim, loss, damage,
liability or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any
such claim, loss, damage, liability or action to the extent that it
(A) arises out of or is based upon any untrue statement or omission
so made in conformity with written information furnished to the
Company by such Indemnitee(s) and stated to be specifically for use
therein or (B) relates to any such untrue statement (or alleged
untrue statement) or omission (or alleged omission) made in the
preliminary prospectus but eliminated or remedied in the amended
prospectus on file with the Commission at the time the registration
statement becomes effective or in the amended prospectus filed with
the Commission pursuant to Rule 424(b), if such prospectus was not
furnished to the person or entity asserting the claim, loss, damage,
liability or action at or prior to the time such furnishing is
required by the Securities Act. This indemnification shall not be
deemed to relieve any underwriter of any of its due diligence
obligations.
(iii) In connection with any registration statement in which a
holder of Warrants and Warrant Shares is participating, each such
holder will furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection
with any such registration statement or prospectus and, to the
extent permitted by law, will indemnify the Company, its directors
and officers and each person who
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controls the Company (within the meaning of the Securities Act)
against any losses, claims, damages, liabilities and expenses
resulting from any untrue statement of a material fact contained in
the registration statement (including any post-effective amendment
thereto), prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission of a material fact
required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit
so furnished in writing by or on behalf of such holder; provided
that the obligation to indemnify will be several, not joint and
several, among such holders of and Warrants and Warrant Shares and
the liability of each such holder of Warrants and Warrant Shares
will be in proportion to and limited to the net amount received by
such holder from the sale of Warrants and Warrant Shares pursuant to
such registration.
(iv) Any person entitled to indemnification hereunder will (A)
give prompt written notice to the indemnifying party of any claim
with respect to which it seeks indemnification (but the omission so
to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than
under this paragraph) and (B) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified
and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim
with counsel reasonably satisfactory to the indemnified party. If
such defense is assumed, the indemnifying party will not be subject
to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably
withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay
the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and
any other of such indemnified parties with respect to such claim.
(v) The indemnification provided for under this Warrant will
remain in full force and effect regardless of any investigation made
by or on behalf of the indemnified party or any officer, director or
controlling person of such indemnified party and will survive the
transfer of securities.
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8. 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:
(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 6(c) hereof, the stock, securities or assets provided
for in such paragraph.
(b) "Company" shall mean Memry Corporation and also include any
successor thereto with respect to the obligations hereunder, by merger,
consolidation or otherwise.
(c) "Final Exercise Date" shall mean July 16, 1999.
(d) "Warrant Certificate" shall mean this instrument evidencing the
Warrants issued to the Warrant holder on this date.
(e) "Warrants" shall mean the Warrants represented by this Warrant
Certificate and all Warrants issued in exchange, transfer or replacement or
hereof or thereof.
(f) "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.
(g) "Warrant holder(s)" shall mean the registered holder(s) of the
Warrants.
9. 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
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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 8
shall be paid by the Company.
10. 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.
11. 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.
12. Notices. Any notice or other document required or permitted to be
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 ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: President, or such other address as
shall have been furnished to the Warrant holders by the Company.
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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 January 29, 1997.
MEMRY CORPORATION
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President
[Corporate Seal]
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary
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NOTICE OF ELECTION
TO: MEMRY CORPORATION
The undersigned, the registered holder of Warrant Cert. No. 96-4, 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:
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Date:______________________
Name:______________________________
By:________________________________
Title:_____________________________
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