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As filed with the Securities and Exchange Commission on January [ ], 1998
Registration No. 333-______
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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'S 1997 LONG-TERM INCENTIVE 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>
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CALCULATION OF REGISTRATION FEE
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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..... 2,000,000 shares $3.30(1) $6,600,000(1) $1,947(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 $3.30 per share
for the 2,000,000 shares issuable under the Plan, which price 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 January 13, 1998.
<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;
(b) The Company's Quarterly Report on Form 10-QSB for the fiscal
quarter ended September 30, 1997, filed pursuant to Section 13(a) or
15(d) of the Exchange Act;
(c) The Company's Current Report on Form 8-K dated December 30,
1997, filed pursuant to Section 13(a) or 15(d) of the Exchange Act;
and
(d) 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.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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
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<PAGE>
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.
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's 1997 Long-Term Incentive Plan.
5.1* Opinion of Finn Dixon & Herling LLP as to the legality
of the securities being registered.
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.
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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.
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<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 14th day of January, 1998.
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.
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<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, January 14, 1998
- ------------------ President, Chief Executive
James G. Binch Officer and Treasurer
(Principal Executive Officer
and Principal Financial Officer)
/s/ Nicholas J. Grant Director January 14, 1998
- ---------------------
Nicholas J. Grant
/s/ Jack H. Halperin Director January 14, 1998
- --------------------
Jack H. Halperin
/s/ W. Andrew Krusen, Jr. Director January 14, 1998
- -------------------------
W. Andrew Krusen, Jr.
/s/ John A. Morgan Director January 14, 1998
- ------------------
John A. Morgan
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<PAGE>
Exhibit 4.1
MEMRY CORPORATION'S 1997 LONG-TERM INCENTIVE PLAN
SECTION 1. PURPOSES. The purposes of Memry Corporation's 1997 Long-Term
Incentive Plan (the "Plan") are to encourage selected key employees and the
directors of Memry Corporation (the "Company") and its Affiliates (as
hereinafter defined) to acquire a proprietary and vested interest in the growth
and performance of the Company and to generate an increased incentive to
contribute to the Company's future success and prosperity, thereby enhancing the
value of the Company for the benefit of stockholders and the ability of the
Company to attract and retain individuals of exceptional talent.
SECTION 2. DEFINITIONS. As used in the Plan, the following terms shall have
the meanings set forth below:
(a) "Award" shall mean any Option, Stock Appreciation Right, Limited Stock
Appreciation Right, Restricted Stock Award, Performance Share or any other
right, interest, or option granted pursuant to the provisions of the Plan.
(b) "Award Agreement" shall mean any written agreement, contract, or other
instrument or document evidencing any Award granted hereunder and signed by both
the Company and the Participant or by both the Company and a Non-Employee
Director.
(c) "Board" shall mean the Board of Directors of the Company.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended from time to
time, including the rules, regulations, and interpretations promulgated
thereunder.
(e) "Committee" shall mean the Compensation Committee of the Board, composed of
not less than two directors each of whom is a Non-Employee Director.
(f) "Company" shall mean Memry Corporation.
(g) "Dividend Equivalent" shall mean any right granted pursuant to Section 14(i)
hereof to receive an equivalent amount of interest or dividends with respect to
the number of shares covered by an Award.
(h) "Employee" shall mean any salaried employee of the Company or of any
Affiliate.
(i) "Fair Market Value" shall mean, with respect to any property, the market
value of such property determined by such methods or procedures as shall be
established from time to time by the Committee.
(j) "Incentive Stock Option" shall mean an Option granted under Section 6 hereof
that is intended to meet the requirements of Section 422 of the Code or any
successor provision thereto.
(k) "Limited Stock Appreciation Right" shall mean a Stock Appreciation Right
that can only be exercised in the event of a change in control, according to the
definition and provisions of Section 8 of the Plan.
(l) "Non-Employee Director" shall mean a person described in both (i) Rule 16b-
3(b)(3) promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, or any successor definition adopted
by the Securities and Exchange Commission, and (ii) Treasury Regulation Section
1.162-27(e)(3)(i), or any successor provision, adopted by the Department of the
Treasury.
(m) "Non-qualified Stock Option" shall mean an Option granted to a Participant
under Section 6 hereof that is not intended to be an Incentive Stock Option.
(n) "Option" shall mean any right granted to a Participant under the Plan
allowing such Participant to purchase Shares at such price or prices and during
such period or periods as the Committee shall determine.
(o) "Participant" shall mean an Employee who is selected by the Committee to
receive an Award under the Plan.
<PAGE>
(p) "Payment Value" shall mean the dollar amount assigned to a Performance
Share which shall be equal to the Fair Market Value per Share on the close of
business on the last day of a Performance Cycle.
(q) "Person" shall mean any individual, corporation, partnership, association,
joint-stock company, trust, unincorporated organization, or government or
political subdivision thereof.
(r) "Performance Cycle" or "Cycle" shall mean the period of time selected by
the Committee during which the performance is measured for the purpose of
determining the extent to which an award of Performance Shares has been earned.
(s) "Performance Goals" shall mean the objectives established by the Committee
for a Performance Cycle, for the purpose of determining the extent to which
Performance Shares which have been contingently awarded for such Cycle are
earned.
(t) "Performance Share" shall mean an Award granted pursuant to Section 10
hereof which shall represent the right, subject to the terms set forth in
Section 10 hereof, to either one Share or the Payment Value in cash of one
Share.
(u) "Restricted Stock" shall mean any Share issued with the restriction that the
holder may not sell, transfer, pledge, or assign such Share and with such other
restrictions as the Committee, in its sole discretion, may impose (including,
without limitation, any restriction on the right to vote such Share, and the
right to receive any cash dividends), which restrictions may lapse separately or
in combination at such time or times, in installments or otherwise, as the
Committee may deem appropriate.
(v) "Restricted Stock Award" shall mean an award of Restricted Stock under
Section 9 hereof.
(w) "Shares" shall mean shares of the common stock of the Company, $0.01 par
value per share, and such other securities of the Company as the Committee may
from time to time determine.
(x) "Stock Appreciation Right" shall mean any right granted to a Participant
pursuant to Section 7 hereof to receive, upon exercise by the Participant, the
excess of (i) the Fair Market Value of one Share on the date of exercise or, if
the Committee shall so determine in the case of any such right other than one
related to any Incentive Stock Option, at any time during a specified period
before the date of exercise over (ii) the grant price of the right as specified
by the Committee, in its sole discretion, on the date of grant, which shall not
be less than the Fair Market Value of one Share on such date. Any payment by
the Company in respect of such right may be made in cash, Shares, other
property, or any combination thereof, as the Committee, in its sole discretion,
shall determine.
(y) "Stockholder Meeting" shall mean the annual meeting of stockholders of the
Company held each year.
SECTION 3. ADMINISTRATION. The Plan shall be administered by the Committee.
The Committee shall have full power and authority, subject to such orders or
resolutions not inconsistent with the provisions of the Plan as may from time to
time be adopted by the Board, to: (i) select the Employees of the Company to
whom Awards may from time to time be granted hereunder; (ii) determine the type
or types of Award to be granted to each Participant hereunder; (iii) determine
the number of Shares to be covered by each Award granted hereunder; provided,
however, that Shares subject to any form of award granted to any individual
employee during any calendar year shall not exceed a total of 300,000 Shares;
(iv) determine the terms and conditions, not inconsistent with the provisions of
the Plan, of any Award granted hereunder; (v) determine whether, to what extent
and under what circumstances Awards may be settled in cash, Shares or other
property or canceled or suspended; (vi) determine whether, to what extent and
under what circumstances cash, Shares and other property and other amounts
payable with respect to an Award under this Plan shall be deferred either
automatically or at the election of the Participant; (vii) interpret and
administer the Plan and any instrument or agreement entered into under the Plan;
(viii) establish such rules and regulations and appoint such agents as it shall
deem appropriate for the proper administration of the Plan; and (ix) make any
other determination and take any other action that the Committee deems necessary
or desirable for
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administration of the Plan. Decisions of the Committee shall be final,
conclusive and binding upon all persons, including the Company, any Participant,
any stockholder, and any Employee of the Company or of any Affiliate.
Notwithstanding the above, the Committee shall not have discretion with respect
of any Shares granted to Non-Employee Directors pursuant to Section 11 hereof.
A majority of the members of the Committee may determine its actions and fix the
time and place of its meetings.
SECTION 4. SHARES SUBJECT TO THE PLAN.
(a) Subject to adjustment as provided in Section 4(b), the total number of
Shares available for grant under the Plan shall be 2,000,000 Shares. In
addition, any Shares issued by the Company through the assumption or
substitution of outstanding grants from an acquired company shall not reduce the
shares available for grants under the Plan. Any Shares issued hereunder may
consist, in whole or in part, of authorized and unissued shares or treasury
shares. If any Shares subject to any Award granted hereunder are forfeited or
such Award otherwise terminates without the issuance of such Shares or of other
consideration in lieu of such Shares, the Shares subject to such Award, to the
extent of any such forfeiture or termination, shall again be available for grant
under the Plan.
(b) In the event of any merger, reorganization, consolidation, recapitalization,
stock dividend, or other change in corporate structure affecting the Shares,
such adjustment shall be made in the type and aggregate number of Shares which
may be delivered under the Plan or such other securities to be delivered in
place thereof, and in the number of Shares subject to outstanding Options
granted under the Plan, and in the value or number of Shares subject to Awards
granted under the Plan as may be determined to be appropriate by the Committee,
in its sole discretion, provided that the number of Shares subject to any Award
shall always be a whole number, and provided further, that the number of Shares
granted to Non-Employee Directors pursuant to Section 11 hereof and the number
of Shares subject in the future to be granted pursuant to Section 11 hereof
shall be subject to adjustment only as set forth in Section 11.
SECTION 5. ELIGIBILITY. Any Employee (excluding any member of the Committee)
shall be eligible to be selected as a Participant. All Non-Employee Directors
shall automatically be eligible to receive Awards pursuant to Section 11.
SECTION 6. STOCK OPTIONS. Options may be granted hereunder to Participants
either alone or in addition to other Awards granted under the Plan. Any Option
granted to a Participant under the Plan shall be evidenced by an Award Agreement
in such form as the Committee may from time to time approve. Any such Option
shall be subject to the following terms and conditions and to such additional
terms and conditions, not inconsistent with the provisions of the Plan, as the
Committee shall deem desirable:
(a) Option Price. The purchase price per Share purchasable under an Option
shall be determined by the Committee in its sole discretion; provided that such
purchase price in the case of Incentive Stock Options shall not be less than the
Fair Market Value of the Share on the date of the grant of the Option; provided
further that the purchase price per Share for an Incentive Stock Option granted
to an Employee who, at the time of grant, owns stock having more than 10 percent
of the total combined voting power of all classes of stock of the Company (a
"Ten Percent Stockholder"), shall not be less than 110 percent of the Fair
Market Value on the date of grant, all as determined by the Committee.
(b) Option Period. The term of each Option shall be fixed by the Committee in
its sole discretion; provided that no Incentive Stock Option shall be
exercisable after the expiration of ten years from the date the Option is
granted; provided further that no Incentive Stock Option granted to an Employee
who is a Ten Percent Stockholder shall be exercisable after the expiration of
five years form the date the Option is granted.
(c) Exercisability. Options shall be exercisable at such time or times as
determined by the Committee at or subsequent to grant.
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(d) Method of Exercise. Subject to the other provisions of the Plan and any
applicable Award Agreement, any Option may be exercised by the Participant in
whole or in part at any time or times, and the Participant may make payment of
the option price in such form or forms, including, without limitation, payment
by delivery of cash, Shares or other consideration, or through an arrangement
with a broker in which the Participant delivers to the Company an irrevocable
notice of exercise accompanied by the broker's payment in full and an
irrevocable instruction to the Company to deliver the Shares issuable upon
exercise to the broker for the Participant's account.
(e) Incentive Stock Options. In accordance with rules and procedures
established by the Committee, the aggregate Fair Market Value (determined as of
the time of grant) of the Shares with respect to which Incentive Stock Options
held by any Participant which are exercisable for the first time by such
Participant during any calendar year under the Plan (and under any other benefit
plans of the Company or subsidiary of the Company) shall not exceed $100,000 or,
if different, the maximum limitation in effect at the time of grant under
Section 422 of the Code, or any successor provision, and any regulations
promulgated thereunder. The terms of any Incentive Stock Option granted
hereunder shall comply in all respects with the provisions of Section 422 of the
Code, or any successor provision, and any regulations promulgated thereunder.
(f) California Residents. Notwithstanding anything to the contrary in this
Plan, either within or without this Section 6, no Options shall be granted to
Employees resident in the State of California unless either (i) the Award
agreement entered into in connection with such grant conforms in all respects
with the requirements of Rule 260.140.41 of the State of California's Blue Sky
Regulations, as same may be amended, or (ii) the offer and sale of Shares upon
the exercise of such Award to such California resident is exempt from the
qualification requirements of Section 25110 of the California Corporate
Securities Law, as same may be amended.
SECTION 7. STOCK APPRECIATION RIGHTS. Stock Appreciation Rights may be granted
hereunder to Participants either alone or in addition to other Awards granted
under the Plan and may, but need not, relate to a specific Option granted under
Section 6. The provisions of Stock Appreciation Rights need not be the same
with respect to each recipient. Any Stock Appreciation Right related to a Non-
qualified Stock Option may be granted at the same time such Option is granted or
at any time thereafter before exercise or expiration of such Option. Any Stock
Appreciation Right related to an Incentive Stock Option must be granted at the
same time such Option is granted. In the case of any Stock Appreciation Right
related to any Option, the Stock Appreciation Right or applicable portion
thereof shall terminate and no longer be exercisable upon the termination or
exercise of the related Option, except that a Stock Appreciation Right granted
with respect to less than the full number of Shares covered by a related Option
shall not be reduced until the exercise or termination of the related Option
exceeds the number of shares not covered by the Stock Appreciation Right. Any
Option related to any Stock Appreciation Right shall no longer be exercisable to
the extent the related Stock Appreciation Right has been exercised. The
Committee may impose such conditions or restrictions on the exercise of any
Stock Appreciation Right as it shall deem appropriate.
SECTION 8. LIMITED STOCK APPRECIATION RIGHTS.
Limited Stock Appreciation Rights may be granted hereunder to Participants in
relation to any Option or Stock Appreciation Right granted under the Plan. A
Limited Stock Appreciation Right may be granted at the time the Option or Stock
Appreciation Right is granted or at any time thereafter. Limited Stock
Appreciation Rights are exercisable in full for a period of seven months
following the date of a Change in Control as defined in Section 12(b).
(a) Amount of Payment. The amount of payment to which a Participant shall be
entitled upon the exercise of each Limited Stock Appreciation Right shall be
equal to the difference between the Option price of the Shares covered by the
related Option or Stock Appreciation Right and the Market Price of such Shares.
Market Price is defined to be the greater of (i) the highest price of the Shares
paid in connection with a Change in Control and (ii) (a) if the Shares are
traded on an exchange, the highest closing trade price per Share on such
exchange during the 60-day period prior to the Change in Control, and (b) if the
Shares are not traded on an exchange, but are traded over-the-
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counter, the average of the highest daily closing bid and ask price per Share
during the 60-day period prior to the Change in Control, in either case as
reasonably determined by the Corporation.
(b) Form of Payment. Payments to Participants upon the exercise of Limited
Stock Appreciation Rights shall be made solely in cash.
(c) Effect of Exercise. If Limited Stock Appreciation Rights are exercised, the
Options and Stock Appreciation Rights related to them cease to be exercisable.
Upon the exercise or termination of the Options or Stock Appreciation Rights,
the related unexercised Limited Stock Appreciation Rights terminate.
SECTION 9. RESTRICTED STOCK.
(a) Issuance. Restricted Stock Awards may be issued hereunder to Participants,
for no cash consideration or such consideration as may be determined by the
Committee to be appropriate, either alone or in addition to other Awards granted
under the Plan. The provisions of Restricted Stock Awards need not be the same
with respect to each recipient.
(b) Registration. Any Restricted Stock issued hereunder may be evidenced in
such manner as the Committee in its sole discretion shall deem appropriate,
including, without limitation, book-entry registration or issuance of a stock
certificate or certificates. In the event any stock certificate is issued in
respect of shares of Restricted Stock awarded under the Plan, such certificate
shall be registered in the name of the Participant, and shall bear an
appropriate legend referring to the terms, conditions, and restrictions
applicable to such Award.
(c) Forfeiture. Except as otherwise determined by the Committee at the time of
grant, upon termination of employment for any reason during the restriction
period specified in connection with such award, all shares of Restricted Stock
still subject to restriction shall be forfeited by the Participant and
reacquired by the Company; provided that in the event of a Participant's
retirement, permanent disability or death, or in cases of special circumstances,
the Committee may, in its sole discretion, when it finds that a waiver would be
in the best interests of the Company, waive in whole or in part any or all
remaining restrictions with respect to such Participant's shares of Restricted
Stock. Unrestricted Shares, evidenced in such manner as the Committee shall
deem appropriate, shall be issued to the grantee promptly after the period of
forfeiture upon satisfaction of all requirements under the applicable Restricted
Stock Award, as determined or modified by the Committee.
SECTION 10. PERFORMANCE SHARES.
(a) Issuance. Performance Shares may be issued hereunder to Participants either
alone or in addition to other Awards granted under the Plan. The terms of
Performance Shares need not be the same with respect to each recipient.
Performance Shares shall entitle the recipient thereof to convert same into
Shares, cash, or a combination thereof, as determined by the Committee, based
upon satisfaction of pre-determined performance targets or goals. The Committee
shall have sole and complete authority to determine the Employees who shall
receive Performance Shares and the number of such Shares for each Performance
Cycle, and to determine the duration of each Performance Cycle. There may be
more than one Performance Cycle in existence at any one time, and the duration
of Performance Cycles may differ from each other.
(b) Performance Goals. The Committee shall establish Performance Goals for each
Cycle based on any one or more of the following, or any other factor the
Committee deems to be relevant: the operating earnings, net earnings, return on
equity, income, market share, stockholder return, combined ratio, level of
expenses or growth in revenue. During any Cycle, the Committee may adjust the
Performance Goals for such Cycle as it deems equitable in recognition of unusual
or non-recurring events affecting the Company, changes in applicable tax laws or
accounting principles, or such other factors as the Committee may determine;
provided, however, that no such adjustment shall be applicable to the extent
such adjustment would result in a disallowance of a tax deduction pursuant to
Section 162(m) of the Code.
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<PAGE>
(c) Determination of Earned Performance Shares. As soon as practicable after
the end of a Performance Cycle, the Committee shall determine the number of
Performance Shares which have been earned on the basis of performance in
relation to the established Performance Goals.
(d) Payment Values. As soon as practicable after the expiration of the
Performance Cycle and the Committee's determination under paragraph (c), above,
the Committee shall determine whether the Participant should be distributed cash
and/or Shares. To the extent that distributions are made in cash, the amount of
cash distributed shall be equal to the number of earned Performance Shares for
which cash is being distributed, times the Payment Value. Award payments made
in cash rather than by the issuance of Shares shall not result in additional
Shares being available under the Plan. To the extent that distributions are
made in Shares, the number of Shares distributed shall be equal to the number of
earned Performance Shares for which Shares are being distributed.
SECTION 11. NON-EMPLOYEE DIRECTORS' STOCK GRANTS.
(a) Grant of Shares. All Non-Employee Directors who remain as such on the last
day of any given fiscal quarter shall be issued quarterly, in arrears, within 60
days of the last day of each fiscal quarter, such number of Shares as shall have
a fair market value equal to $2,500, with such fee being pro-rated for any Non-
Employee Director who serves as such for less than such full fiscal quarter.
For the purposes of the foregoing, the fair market value of a Share shall be the
average of the bid and asked prices per Share on the last trading day of a
particular fiscal quarter.
(b) Adjustment of Award. In case there shall be a merger, reorganization,
consolidation, recapitalization, stock dividend or other change in corporate
structure such that the Shares of the Company are changed into or become
exchangeable for a different security, thereafter the Shares subject to be
granted to Non-Employee Directors pursuant to the provisions of this Section 11
shall be adjusted accordingly.
SECTION 12. CHANGE IN CONTROL.
(a) In order to maintain the Participants' rights in the event of any Change in
Control of the Company, as hereinafter defined, the Committee, as constituted
before such Change in Control, may, in its sole discretion, as to any Award
(except Shares granted pursuant to Section 11), either at the time an Award is
made hereunder or any time thereafter, take any one or more of the following
actions: (i) provide for the acceleration of any time periods relating to the
exercise or realization of any such Award so that such Award may be exercised or
realized in full on or before a date fixed by the Committee; (ii) provide for
the purchase of any such Award, upon the Participant's request, for an amount of
cash equal to the amount that could have been attained upon the exercise of such
Award or realization of the Participant's rights had such Award been currently
exercisable or payable; or (iii) make such adjustment to any such Award then
outstanding as the Committee deems appropriate to reflect such Change in
Control. In addition, the Committee, upon receiving approval of a majority of
the full Board, may, in its discretion, cause any Award outstanding at such time
to be assumed, or new rights substituted therefor, by the acquiring or surviving
corporation after such Change in Control. The Committee may, in its discretion,
include such further provisions and limitations in any agreement documenting
such Awards as it may deem equitable and in the best interests of the Company.
(b) A "Change in Control" shall be deemed to have occurred if (i) any Person
other than a trustee or other fiduciary holding securities under an employee
benefit plan of the Company, and other than the Company or a corporation owned,
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934), directly or indirectly, of securities of the Company representing 25%
or more of the combined voting power of the Company's then outstanding
securities; or (ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board and any new Director (other
than a Director designated by a person who has entered into an agreement with
the Company to effect a transaction described in (i) above) whose election by
the Board or nomination for election by the Company's stockholders was approved
by a vote of at least two-thirds (2/3) of the Directors then still in office who
either were Directors at the
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beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof.
SECTION 13. AMENDMENTS AND TERMINATION. The Committee may amend, alter or
discontinue the Plan, but no amendment, alteration, or discontinuation shall be
made that would impair the rights of a Participant under an Award theretofore
granted, without the Participant's consent, or that without the approval of the
Stockholders as required by applicable law would:
(a) except as is provided in Section 4(b) or 11(b) of the Plan, increase the
total number of Shares reserved for the purposes of the Plan;
(b) change the Employees or class of Employees eligible to participate in the
Plan; or
(c) change in any way the Shares provided for in Section 11 of the Plan.
The Committee may amend the terms of any Award theretofore granted (except
Shares granted pursuant to Section 11 hereof), prospectively or retroactively,
but no such amendment shall impair the rights of any Participant without his
consent. The Committee may also substitute new Awards for Awards previously
granted to Participants, including without limitation previously granted Options
having Fair Market Value or higher option prices.
SECTION 14. GENERAL PROVISIONS.
(a) At the sole discretion of the Committee at the time of grant, Awards may be
assignable or transferable by a Participant or a Non-Employee Director; provided
that no Award shall be assignable or transferable unless the exercise of such
Award and subsequent sale may be covered by a Registration Statement on Form
S-8.
(b) The term of each Award shall be for such period of months or years from the
date of its grant as may be determined by the Committee; provided that in no
event shall the term of any Incentive Stock Option, or any Stock Appreciation
Right related to any Incentive Stock Options, exceed a period of ten (10) years
from the date of its grant; provided further that in no event shall the term of
any Incentive Stock Option, or any Stock Appreciation Right related to any
Incentive Stock Option granted to a Ten Percent Stockholder exceed a period of
five (5) years from the date of its grant.
(c) Nothing in this Plan shall confer upon any Employee or Participant any right
to continue in the employ of the Company or any Affiliate or interfere in any
way with the right of any Company or any Affiliate to terminate his or her
employment at any time. No Employee or Participant shall have any claim to be
granted any Award under the Plan and there is no obligation for uniformity of
treatment of Employees or Participants under the Plan.
(d) The prospective recipient of any Award under the Plan shall not, with
respect to such Award, be deemed to have become a Participant, or to have any
rights with respect to such Award, until and unless such recipient shall have
executed an Award Agreement or other instrument evidencing the Award and
delivered a fully executed copy thereof to the Company, and otherwise complied
with the then applicable terms and conditions.
(e) Subject to Section 13 hereof, the Committee shall be authorized to make
adjustments in performance award standards or in the terms and conditions of
other Awards in recognition of unusual or nonrecurring events affecting the
Company or its financial statements or changes in applicable laws, regulations
or accounting principles. The Committee may correct any defect, supply any
omission or reconcile any inconsistency in the Plan or any Award in the manner
and to the extent it shall deem desirable to carry it into effect. In the event
the Company shall assume outstanding employee benefit awards or the right or
obligation to make future such awards in connection with the acquisition of
another corporation or business entity, the Committee may, in its discretion,
make such adjustments in the terms of Awards under the Plan as it shall deem
appropriate. Notwithstanding the above, the Committee shall
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<PAGE>
not have the right to make any adjustments in the terms or conditions of Shares
granted pursuant to Section 11 hereof.
(f) The Committee shall have full power and authority to determine any other
type and form of Award beyond those enumerated above to grant a Participant for
the furtherance of the purposes of the Plan.
(g) The Committee shall have full power and authority to determine whether, to
what extent and under what circumstances any Award (other than Shares granted
pursuant to Section 11 hereof) shall be canceled or suspended. In particular,
but without limitation, all outstanding Awards to any Participant shall be
canceled if the Participant, without the consent of the Committee, while
employed by the Company or after termination of such employment, becomes
associated with, employed by, renders services to, or owns any interest in
(other than any nonsubstantial interest, as determined by the Committee), any
business that is in competition with the Company or with any business in which
the Company has a substantial interest as determined by the Committee.
(h) All certificates for Shares delivered under the Plan pursuant to any Award
shall be subject to such stock-transfer orders and other restrictions as the
Committee may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission, any stock exchange upon
which the Shares are then listed, and any applicable Federal or state securities
law, and the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
(i) Subject to the provisions of this Plan and any Award Agreement, the
recipient of an Award may, if so determined by the Committee, be entitled to
receive, currently or on a deferred basis, interest or dividends, or interest or
Dividend Equivalents, with respect to the number of Shares covered by the Award,
as determined by the Committee, in its sole discretion, and the Committee may
provide that such amounts (if any) shall be deemed to have been reinvested in
additional Shares or otherwise reinvested.
(j) As circumstances may from time to time require, the Committee may in its
sole discretion make available to Participants loans for the purpose of
exercising Options.
(k) The Company shall be authorized to withhold from any Award granted or
payment due under the Plan the amount of withholding taxes due with respect to
an Award or payment hereunder and to take such other action as may be necessary
in the opinion of the Company to satisfy all obligations for the payment of such
taxes. The Company shall also be authorized to accept the delivery of shares by
a Participant in payment for the withholding of federal, state and local taxes
(but not for social security and Medicare taxes) up to the Participant's
marginal tax rate.
(l) Nothing contained in this Plan shall prevent the Board of Directors from
adopting other or additional compensation arrangements, subject to stockholder
approval if such approval is required; and such arrangements may be either
generally applicable or applicable only in specific cases.
(m) The validity, construction, and effect of the Plan and any rules and
regulations relating to the Plan shall be determined in accordance with the laws
of the State of Connecticut and applicable Federal law.
(n) If any provision of this Plan is or becomes or is deemed invalid, illegal or
unenforceable in any jurisdiction, or would disqualify the Plan or any Award
under any law deemed applicable by the Committee, such provision shall be
construed or deemed amended to conform to applicable laws or if it cannot be
construed or deemed amended without, in the determination of the Committee,
materially altering the intent of the Plan, it shall be stricken and the
remainder of the Plan shall remain in full force and effect.
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<PAGE>
Exhibit 5.1
January 15, 1998
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 2,000,000 shares (the
"Shares") of the Common Stock, $0.01 par value per share, of the Company, to be
issued pursuant to Memry Corporation's 1997 Long-Term Incentive 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; and (iii) 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 awards and agreements which
are issued or 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.
<PAGE>
-2-
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
------------------------------
McGladrey & Pullen, LLP
New Haven, Connecticut
January 15, 1998
