<PAGE>
As filed with the Securities and Exchange Commission on November 7, 1997
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------------
MEMRY CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 06-1084424
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation)
57 COMMERCE DRIVE
BROOKFIELD, CONNECTICUT 06804
(Address of Principal Executive Offices) (Zip Code)
MEMRY CORPORATION STOCK OPTION PLAN
(Full Title of the Plan)
JAMES G. BINCH
PRESIDENT AND CHIEF EXECUTIVE OFFICER
57 COMMERCE DRIVE
BROOKFIELD, CONNECTICUT 06804
(203) 740-7311
(Name, address and telephone number, including area code, of agent for service)
--------------------------------
Copies to:
DAVID I. ALBIN, ESQ.
FINN DIXON & HERLING LLP
ONE LANDMARK SQUARE
STAMFORD, CONNECTICUT 06901
(203) 325-5000
<TABLE>
<CAPTION>
=============================================================================================
CALCULATION OF REGISTRATION FEE
=============================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount Offering Aggregate Registration
to be Registered to be Registered Price Per Share Offering Price Fee
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value..... 1,100,000 shares $2.02 (1) $2,222,000.00 (1) $673.33(1)
=============================================================================================
</TABLE>
(1) Estimated in accordance with Rule 457(h) and Rule 457(c) solely for the
purpose of calculating the registration fee on the basis of the weighted
average of (i) $1.81 per share for 1,011,750 options granted to date and
outstanding under the plan; and (ii) $4.39 per share for the remaining
88,250 shares, which is the average of the closing bid and asked prices
per share of Common Stock of the Registrant reported on the OTC Bulletin
Board on November 5, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission:
(a) The Company's Annual Report on Form 10-KSB for the fiscal
year ended June 30, 1997, filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
as amended by Amendment No. 1 thereto; and
(b) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A, filed pursuant to
Section 12(g) of the Exchange Act on December 12, 1985, which
description was incorporated by reference from the description of the
Common Stock set forth under the caption "Description of Securities"
at page 28 in the Prospectus of the Company (then known as Memory
Metals, Inc.) dated November 9, 1984, filed pursuant to Rule 424(b)
under the Securities Act of 1933 (Registrant File No. 2-90711-B).
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the
date of this Registration Statement and prior to the filing of a post-
effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and
to be part hereof from the date of filing of such reports or documents.
Statements made herein as to the contents of any contract, agreement or
other document are not necessarily complete. With respect to each such
contract, agreement or other document filed as an exhibit to the
Registration Statement, reference is made to the exhibit for a more
complete description of the matter involved, and each such statement shall
be deemed qualified in its entirety by such reference.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
II-1
<PAGE>
Section 145 of the General Corporation Law of the State of Delaware
empowers a corporation incorporated under the General Corporation Law to
indemnify its directors, officers, employees and agents and its former
directors, officers, employees and agents and those who serve in such
capacities with another enterprise at its request, against expenses
(including attorneys' fees), as well as judgments, fines and amounts paid
in settlements actually and reasonably incurred by them in connection with
any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by
or in the right of the corporation), in which they or any of them were or
are made parties or are threatened to be made parties by reason of their
serving or having served in such capacity. The power to indemnify shall
only exist where such officer, director, employee or agent has acted in
good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation and, in the case of a criminal
action, such person had no reasonable cause to believe his conduct was
unlawful. In a threatened, pending or completed action or suit by or in
the right of the corporation, the corporation may indemnify such person
only for expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action
or suit if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation,
except that if such person has been adjudged liable to the corporation then
the corporation shall have no power of indemnification unless and only to
the extent that a court shall determine upon application. Indemnity is
mandatory as to expenses (including attorneys' fees) actually and
reasonably incurred by a director, officer, employee or agent of a
corporation to the extent a claim, issue or matter has been successfully
defended. Expenses (including attorneys' fees) incurred by an officer or
director in defending any such action, suit or proceeding may be paid by
the corporation in advance of final disposition upon receipt of an
undertaking by or on behalf of such person to repay such amount if it is
ultimately determined that he is not entitled to be indemnified by the
corporation. Indemnification is not deemed exclusive of any other rights
to which those indemnified may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors or otherwise. The
determination to make indemnification pursuant to Section 145 shall be made
by (i) a majority vote of disinterested directors even though less than a
quorum, (ii) if there are no such directors or if such directors so direct,
by independent legal counsel in a written opinion, or (ii) by the
stockholders. A Delaware corporation also has the power to purchase and
maintain insurance on behalf of the persons it has the power to indemnify,
whether or not indemnity against such liability would be allowed under the
statute.
Article VIII of the By-Laws of the Company provides as follows:
The Corporation shall, to the fullest extent permitted by subsections
(a) through (e) of Section 145 of the General Corporation Law of the
State of Delaware (as such statute may, from time to time, be
amended), indemnify any and all persons whom it shall have power to
indemnify against any and all expenses, liabilities and other matters.
II-2
<PAGE>
The Certificate of Incorporation of the Company was amended in June
1989, as permitted by the Delaware General Corporation Law, pursuant to a
vote of its stockholders, to provide that, to the fullest extent
permissible under the Delaware General Corporation Law, directors of the
Company shall not be personally liable to the Company or its stockholders
for monetary damages for breach of the fiduciary duty as a director except
for liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law,
(iii) for improper dividend payment or unlawful stock purchases or
redemption, or (iv) for any transaction from which the director derived an
improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number
------
3.1 Certificate of Incorporation of the Company, as amended
(incorporated by reference to the Company's Quarterly
Report on Form 10-QSB for the fiscal quarter ended
December 31, 1996).
3.2 By-laws of the Company, as amended (incorporated by
reference to the Company's Annual Report on Form 10-KSB
for the fiscal year ended June 30, 1996, as amended
filed June 25, 1997).
4.1 Memry Corporation Stock Option Plan, as amended
(incorporated by reference to the Company's Quarterly
Report on Form 10-QSB for the fiscal quarter ended
December 31, 1996).
4.2 Form of Nontransferable Incentive Stock Option
Agreement under the Memry Corporation Stock Option Plan
(incorporated by reference to the Company's Quarterly
Report on Form 10-QSB for the fiscal quarter ended
December 31, 1996).
4.3 Form of Nontransferable Non-Qualified Stock Option
Agreement under the Memry Corporation Stock Option Plan
(incorporated by reference to the Company's Quarterly
Report on Form 10-QSB for the fiscal quarter ended
December 31, 1996).
5.1* Opinion of Finn Dixon & Herling LLP as to the legality
of the securities being registered.
II-3
<PAGE>
23.1* Consent of McGladrey & Pullen, LLP.
23.2 Consent of Finn Dixon & Herling LLP (contained in
Exhibit 5.1 hereto).
24.1 Power of Attorney (included on the signature pages).
_________________________
*Filed herewith.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this registration statement to:
(i) Include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events
which, individually or together, represent a fundamental change in the
information set forth in the registration statement; and Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) Include any additional or changed material
information on the plan of distribution.
(2) For determining liability under the Securities Act of 1933,
treat each post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time to be
the initial bona fide offering.
(3) File a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the offering.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Brookfield, State of Connecticut,
on this 4th day of November, 1997.
MEMRY CORPORATION
By: /s/ James G. Binch
----------------------------------
James G. Binch, Chairman of the Board,
President, Chief Executive Officer and
Treasurer
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James G. Binch his or her attorney-
in-fact, with the power of substitution, for him or her in any and all
capacities, to sign any amendments to this Registration Statement, and to
file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying
and confirming all that each of said attorneys-in-fact, or his substitute
or substitutes, may do or cause to be done by virtue hereof.
II-5
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ James G. Binch Chairman of the Board, November 4, 1997
---------------------------- President, Chief Executive
James G. Binch Officer and Treasurer
(Principal Executive
Officer and Principal
Financial Officer)
/s/ Nicholas J. Grant Director November 4, 1997
----------------------------------
Nicholas J. Grant
/s/ Jack H. Halperin Director November 4, 1997
-----------------------------------
Jack H. Halperin
/s/ W. Andrew Krusen, Jr. Director November 4, 1997
-----------------------------------
W. Andrew Krusen, Jr.
/s/ John A. Morgan Director November 4, 1997
-----------------------------------
John A. Morgan
II-6
<PAGE>
Exhibit 5.1
FINN DIXON & HERLING LLP
ONE LANDMARK SQUARE
STAMFORD, CONNECTICUT 06901
TELEPHONE: (203) 325-5000
FACSIMILE: (203) 348-5777
November 7, 1997
Memry Corporation
57 Commerce Drive
Brookfield, Connecticut 06804
Re: Memry Corporation -- Registration Statement on Form S-8
-------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Memry Corporation, a Delaware corporation (the
"Company"), in connection with the preparation and filing with the Securities
and Exchange Commission of a registration statement on Form S-8 (the
"Registration Statement") of the Company, covering 1,100,000 shares (the
"Shares") of the Common Stock, $0.01 par value per share, of the Company, to be
issued pursuant to the Memry Corporation Stock Option Plan, as amended (the
"Plan").
In rendering the opinion set forth herein, we have examined executed
copies, telecopies or photocopies of: (i) the Registration Statement and the
Plan; (ii) the Certificate of Incorporation of the Company, as amended, the By-
laws of the Company, as amended, and excerpts from the minute books of the
Company; (iii) the current forms of Option Agreements used in connection with
the Plan; and (iv) such other records, documents, certificates and other
instruments as in our judgment are necessary or appropriate as a basis for the
opinion expressed below. In our examination of such documents we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such copies. As to any facts
material to this opinion which we did not independently establish or verify, we
have relied upon statements and representations of officers and other
representatives of the Company.
Based upon the foregoing, and in reliance thereon, and subject to the
qualifications, assumptions and exceptions heretofore and hereinafter set forth,
we are of the opinion that, upon the issuance of the Shares in accordance with
the Plan (and in accordance with the terms of any written options, option
agreements or other agreements which are issued or
<PAGE>
- 2 -
entered into pursuant to the terms and conditions of the Plan) and as
contemplated by the Registration Statement, the Shares will be validly issued,
fully paid and non-assessable.
We do not express, or purport to express, any opinion with respect to the
laws of any jurisdiction other than the laws of the State of Connecticut, the
General Corporation Law of the State of Delaware and the federal securities laws
of the United States of America.
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations promulgated thereunder by the Securities and Exchange Commission.
This opinion is given as of the date hereof and we assume no obligation to
update or supplement this opinion to reflect any facts or circumstances which
may hereafter occur or come to our attention or any changes in law which may
hereafter occur.
Very truly yours,
/s/ Finn Dixon & Herling LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated September 18, 1997, included in Memry
Corporation's Form 10-KSB, as amended, for the year ended June 30, 1997, and to
all references to our Firm included in this Registration Statement.
/s/ McGLADREY & PULLEN, LLP
New Haven, Connecticut
November 7, 1997
