<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
--------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ____)*
Memry Corporation
(Name of Issuer)
Common Stock
(Title of Class of Securities)
586263 20 4
CUSIP Number
Sarah A. O'Dowd, Esq.
Heller Ehrman White & McAuliffe
525 University Avenue
Palo Alto, California 94301
(415) 324-7000
(Name, address and telephone number
of person authorized to receive
notices and communications)
June 28, 1996
(Date of Event which requires
filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box: / /
Check the following box if a fee is being paid with this statement: /X/
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class. See (Rule 13d-7.)
Note: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment
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CUSIP NO. 586263 20 4 13D
containing information which would alter disclosures provided in a prior cover
page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the Notes).
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CUSIP NO. 586263 20 4 13D
1) Name of Reporting Persons: RAYCHEM CORPORATION
S.S. or I.R.S. Identification No. of above person
________________________________________________________________________________
2) Check the Appropriate Box if a Member of a Group*
(a) / / _________________________________________________________
(b) / / _________________________________________________________
________________________________________________________________________________
3) SEC Use Only ________________________________________________
________________________________________________________________________________
4) Source of Funds* : 00
________________________________________________________________________________
5) / / Check if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(d) or 2(e)
________________________________________________________________________________
6) Citizenship or Place of Organization: DELAWARE
________________________________________________________________________________
7) Sole Voting Power
2,380,000
Number ___________________________________________________
of 8) Shared Voting Power
Shares 0
Beneficially ___________________________________________________
Owned 9) Sole Dispositive Power
by
Each 2,380,000
Reporting ___________________________________________________
Person 10) Shared Dispositive Power
With 0
_______________________________________________________________________________
11) Aggregate Amount Beneficially Owned by Each
Reporting Person: 2,380,000
________________________________________________________________________________
12) / / Check if the Aggregate Amount in Row (11)
Excludes Certain Shares*
________________________________________________________________________________
13) Percent of Class Represented by amount in Row (11):
15.50%
________________________________________________________________________________
14) Type of Reporting Person*
CO
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP NO. 586263 20 4 13D
Item 1. Security and Issuer.
This Statement on Schedule 13D (this "Statement") relates to
warrants (the "Warrants") to purchase shares of Common Stock (the "Common
Stock"), $.01 par value per share of Memry Corporation, a Delaware corporation
(the "Issuer"). The address of the principal executive offices of the Issuer is
57 Commerce Drive, Brookfield, Connecticut 06804.
Item 2. Identity and Background.
Raychem Corporation ("Raychem") is organized under the laws of
the State of Delaware and is in the business of developing, manufacturing and
marketing high-performance products for electronics, industrial and
telecommunications applications. Its principal business address is 300
Constitution Drive, Menlo Park, California 94025-1164.
The name, business address, present principal occupation and
citizenship of each executive officer and director of Raychem (such executive
officers and directors together the "Executives") are set forth in Appendix A
hereto, which is incorporated herein by reference.
Neither Raychem nor, to the best knowledge of Raychem, any of
the Executives, has been convicted in any criminal proceeding during the last
five years (excluding traffic violations or similar misdemeanors).
Neither Raychem nor, to the best knowledge of Raychem, any of
the Executives, has during the last five years been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as
a result of such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The Warrants were acquired by Raychem as part of the purchase
price for Raychem's shape memory metals components business, which was sold to
the Issuer pursuant to that certain Amended and Restated Asset Purchase
Agreement dated as of May 10, 1996 by and between Raychem and the Issuer, as
amended by that certain Amendment No. 1 dated as of June 28, 1996 and by that
certain Amendment No. 2 dated as of August 11, 1996 (as so amended, the
"Agreement"). To date, none of the Warrants have been exercised. It is presently
anticipated that the exercise price for the Warrants, if exercised, would be
paid by Raychem from its working capital.
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CUSIP NO. 586263 20 4 13D
Item 4. Purpose of Transaction.
The Warrants were delivered to Raychem by the Issuer on June
28, 1996 as part of the consideration provided pursuant to the Agreement. Under
the terms of the Agreement, Raychem and the Issuer have entered into a mutually
exclusive supply/private label agreement under which Raychem's Electronics
Division continues to support its existing customers and market and sell new
shape memory metal products to its worldwide OEM customer base.
Neither Raychem nor, to the best knowledge of Raychem, any of
the Executives, has any present plans or proposals which relate to or would
result in (i) the acquisition by any person of additional securities of the
Issuer, or the disposition of securities of the Issuer; (ii) an extraordinary
corporate transaction, such as a merger, reorganization or liquidation,
involving the Issuer or any of its subsidiaries; (iii) a sale or transfer of a
material amount of assets of the Issuer or any of its subsidiaries; (iv) any
change in the present Board of Directors or management of the Issuer, including
any plans or proposals to change the number or term of directors or to fill any
existing vacancies on the Board of Directors of the Issuer; (v) any material
change in the present capitalization or dividend policy of the Issuer; (vi) any
other material change in the Issuer's business or corporate structure; (vii) any
other material change in the Issuer's charter, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Issuer by any person; (viii) causing the Common Stock to cease to
be authorized to be quoted on the NASD OTC Bulletin Board; (ix) the Common Stock
becoming eligible for termination of registration pursuant to Section 12(g)(4)
of the Securities Exchange Act of 1934, as amended; or (x) any action similar to
any of those actions set forth in this Paragraph.
Item 5. Interest in Securities of the Issuer.
(a) As of June 28, 1996, Raychem was the beneficial owner of
Warrants exercisable for an aggregate of 2,380,000 shares of Common Stock of the
Issuer, representing 15.50% of the shares of such class of stock deemed
outstanding on such date. All of such shares are issuable to Raychem upon the
exercise of the Warrants.
(b) Raychem holds sole voting and sole dispositive power over
the Warrants and all of the Common Stock issuable upon exercise of the Warrants.
(c) No transactions in the Warrants or Common Stock have been
effected during the past 60 days by Raychem.
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CUSIP NO. 586263 20 4 13D
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer.
There are no contracts, arrangements, understandings or
relationships between or among Raychem or, to the best knowledge of Raychem, any
of the Executives, and any other person with respect to any securities of the
Issuer other than certain anti-dilution and registration rights contained in the
Warrants and transfer restrictions contained in that certain Registration Rights
Agreement between Raychem and the Issuer dated as of June 28, 1996.
Item 7. Material to be Filed as Exhibits.
Exhibit 1 - Registration Rights Agreement between Raychem and
the Issuer dated as of June 28, 1996.
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CUSIP NO. 586263 20 4 13D
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this Statement is true,
complete and correct.
Dated: September 13, 1996
RAYCHEM CORPORATION
By: /s/ Andrew F. Roake
-------------------
Authorized Officer
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CUSIP NO. 586263 20 4 13D
Appendix A(1)
<TABLE>
<CAPTION>
Name Position with Raychem Principal Occupation Citizenship
---- --------------------- -------------------- -----------
<S> <C> <C> <C>
Richard A. Kashnow President, Chief Executive Raychem Executive U.S.
Officer and Chairman of
the Board of Directors
Chang-Lin Tien Director Chancellor, University of U.S.
California, Berkeley(2)
Richard Dulude Director Retired Vice Chairman, U.S.
Corning Incorporated(3)
James F. Gibbons Director Special Counsel to the U.S.
President, Stanford
University(4)
John P. McTague Director Vice President of U.S.
Technical Affairs, Ford
Motor Company(5)
Dean O. Morton Director Retired Executive Vice U.S.
President, Director and
Chief Operating Officer,
Hewlett-Packard Company(6)
Isaac Stein Director President, Waverley U.S.
Associates, Inc.(7)
Cyril J. Yansouni Director Chairman and Chief Belgium
Executive Officer, Read-
Rite Corporation(8)
Ralph H. Harnett Senior Vice President, Raychem Executive U.S.
Telecom
Raymond J. Sims Senior Vice President and Raychem Executive U.S.
Chief Financial Officer
Joseph G. Wirth Senior Vice President and Raychem Executive U.S.
Chief Technical Officer
Diedra D. Barsotti Vice President and Raychem Executive U.S.
Controller
L. Frans Berthels Vice President Raychem Executive Belgium
Peter L. Brooks Vice President, Polyswitch Raychem Executive U.S.
</TABLE>
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CUSIP NO. 586263 20 4 13D
Appendix A(1)
<TABLE>
<CAPTION>
Name Position with Raychem Principal Occupation Citizenship
---- --------------------- -------------------- -----------
<S> <C> <C> <C>
Peter S. Carson Vice President, Automotive Raychem Executive U.S.
James L. Claypool Vice President, Telecom Raychem Executive U.S.
Europe
Timothy S. Jenks Vice President, EPD Europe Raychem Executive U.S.
Lars Larsen Vice President and Raychem Executive U.S.
Treasurer
John D. McGraw Vice President, Raychem Executive U.S.
Electronics
John A. Midgley Vice President, U.S. Raychem Executive United
Corporate R&D Kingdom
Kiichiro Ohya Vice President, Asia Raychem Executive Japan
Andrew F. Roake Vice President, Corporate Raychem Executive United
Strategy Kingdom
Hus Tigli Vice President, Chemelex Raychem Executive Turkey
Eric Van Zele Vice President, Europe Raychem Executive Belgium
</TABLE>
- --------------
1. Except as reflected in the other footnotes to this appendix, all
executive officers engage in their principal occupation at Raychem
Corporation and may be contacted at Raychem Corporation, 300
Constitution Drive, Menlo Park, California 94025-1164.
2. Mr. Tien is the Chancellor of the University of California at Berkeley,
a public university. His address at the University of California is
Chancellor Chang-Lin Tien, University of California-Berkeley, Office of
the Chancellor, 200 California Hall #1500, Berkeley, California
94720-1500.
3. Mr. Dulude, now retired, is the former Vice Chairman of Corning
Incorporated. He may be reached at Raychem Corporation.
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CUSIP NO. 586263 20 4 13D
4. Mr. Gibbons is a special counsel to the President of Stanford
University, a private university. His address at Stanford University is
Dr. James F. Gibbons, Paul G. Allen Center for Integrated Systems, Room
#201, M/S #4075, Stanford University, Stanford, California 94305.
5. Mr. McTague is the Vice President of Technical Affairs at Ford Motor
Company, an automobile manufacturer. His address at Ford is John P.
McTague, Ford Motor Company, The American Road, P.O. Box 1899,
Dearborn, Michigan 48121-1899.
6. Mr. Morton, now retired, is the former Executive Vice President,
Director and Chief Operating Officer of Hewlett-Packard Company. He may
be reached at Raychem Corporation.
7. Mr. Stein is the President of Waverley Associates, Inc., a private
investment management company. His address at Waverley Associates, Inc.
is Waverley Associates, Inc., 525 University Avenue, Suite #700, Palo
Alto, California 94301.
8. Mr. Yansouni is the Chairman and Chief Executive Officer of Read-Rite
Corporation, a manufacturer of thin film heads for computer disk
drives. His address at Read-Rite Corporation is Read-Rite Corporation,
345 Los Coches Street, Milpitas, California 95035.
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CUSIP NO. 586263 20 4 13D
Exhibit 1
Registration Rights Agreement
11
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======================================================
MEMRY CORPORATION
REGISTRATION RIGHTS AGREEMENT
June 28, 1996
======================================================
<PAGE> 13
TABLE OF CONTENTS
SECTION 1.................................................................... 1
RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS................................ 1
1.1 Restrictions on Transfer................................... 1
1.2 Certain Definitions........................................ 1
1.3 Restrictive Legends........................................ 3
1.4 Notice of Proposed Transfers............................... 4
1.5 Holder's Requested Registration............................ 4
1.6 Company Registration....................................... 6
1.7 Form S-3 Registration...................................... 7
1.8 Expenses of Registration................................... 8
1.9 Lock-up.................................................... 9
1.10 Registration Procedures.................................... 9
1.11 Indemnification............................................ 10
1.12 Information by Holder...................................... 12
1.13 Rule 144 Reporting......................................... 12
1.14 Termination of Registration Rights......................... 13
SECTION 2.................................................................... 13
MISCELLANEOUS................................................................ 13
2.1 Governing Law.............................................. 13
2.2 Successors and Assigns; Assignment of Rights............... 13
2.3 Entire Agreement; Amendment; Waiver........................ 13
2.4 Notices, etc............................................... 13
2.5 Delays or Omissions........................................ 13
2.6 Rights; Separability....................................... 14
2.7 Titles and Subtitles....................................... 14
2.8 Counterparts............................................... 14
2.9 Aggregation of Stock....................................... 14
2.10 No Third Party Beneficiaries............................... 14
2.11 Remedies................................................... 14
<PAGE> 14
MEMRY CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of June 28, 1996, by and between MEMRY CORPORATION, a Delaware
corporation (the "Company"), and RAYCHEM CORPORATION, a Delaware corporation
(the "Holder").
WHEREAS, the Company and the Holder are parties to a certain Amended
and Restated Asset Purchase Agreement (the "Purchase Agreement"), dated May 10,
1996, as amended from time to time, whereby, among other things, the Company has
agreed to purchase from the Holder, and the Holder has agreed to sell to the
Company certain assets of the Holder used in its Shape Memory Metals Operation
division, in consideration of, among other things, the issuance by the Company
to the Holder $3,650,000, a $350,000 promissory note, the $2.00 Warrant, which
Warrant entitles the Holder to purchase up to 1,250,000 shares of the Company's
Common Stock, par value $0.01 per share (the "Common Stock"), at a price of
$2.00 per share and the Par Value Warrant, which entitles the Holder to purchase
up to 1,130,000 shares of the Common Stock at a price of $0.01 per share; and
WHEREAS, it is a condition precedent to each of the Parties obligations
to consummate the transactions contemplated by the Purchase Agreement that the
other Party enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties hereto agree as follows:
SECTION 1
RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS
1.1 Restrictions on Transfer. No Restricted Securities (as defined
below) shall be sold, assigned, transferred, or pledged by the Holder except
upon the conditions specified in this Section 1 hereof, which conditions are
intended to ensure compliance with the provisions of the Securities Act, and the
conditions specified in Section 2 hereof. In addition, notwithstanding anything
to the contrary contained herein, Holder may not Transfer (i) all or any part of
the Par Value Warrant or any of the shares of Conversion Stock with respect to
such Par Value Warrant during the one year period from and after the date
hereof; and (ii) all or any part of the $2.00 Warrant or any of the shares of
Conversion Stock with respect to the $2.00 Warrant during the three year period
from and after the date hereof. Any purported transfer in violation of this
Section 1.1 shall be void ab initio.
1.2 Certain Definitions. As used in this Agreement, the following
definitions shall apply:
"Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Company's common stock, par value
$0.01 per share, including shares of Conversion Stock issued or issuable from
time to time.
<PAGE> 15
"Conversion Stock" shall mean the shares of Common Stock
issued or issuable upon exercise of the $2.00 Warrant or the Par Value Warrant,
together with any securities issued or issuable, directly or indirectly, in
respect of such securities upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar successor federal statute and the rules and regulations
promulgated thereunder, all as the same shall be in effect from time to time.
"Holder" means Raychem Corporation, a Delaware corporation,
and any holder of Registrable Securities to whom the registration rights
conferred by this Agreement have been transferred pursuant to Section 2.2
hereof.
"IPO" shall mean a firm commitment underwritten public
offering pursuant to an effective registration statement under the Securities
Act covering the offer and sale of Common Stock for the account of the Company.
"Par Value Warrant" shall mean that certain warrant to
purchase up to 1,130,000 shares of Common Stock, at an exercise price equal to
$0.01 per share.
The terms "register", "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act (and any post-effective amendments filed or
required to be filed), and the declaration or ordering of the effectiveness of
such registration statement.
"Registrable Securities" means the Common Stock (i) issued or
issuable upon exercise of the Warrants, and (ii) any Common Stock issued as a
dividend or other distribution with respect to or in exchange for, or in
replacement of the shares referenced in (i) above; provided, however, that
Registrable Securities shall not include any shares of Common Stock which may be
sold in reliance upon Rule 144 promulgated under the Securities Act.
"Registration Expenses" means all expenses incurred by the
Company in complying with Sections 1.5, 1.6 and 1.7 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company and for the fees
and expenses of one (1) counsel for the Holders, blue sky fees and expenses, and
the expense of any special audits incident to, or required by any such
registration (but excluding the compensation of regular employees of the
Company, which shall be paid in any event by the Company). Registration Expenses
shall not include: Selling Expenses or other compensation paid to underwriters
or other agents or brokers to effect the sale or the fees of more than one (1)
counsel for the Holders (or, in the event of any transfer of any Registrable
Securities in accordance with Section 6.2 hereof, the fees of not more than one
(1) counsel for the Holder and any permitted assigns thereof).
"Restricted Securities" means the securities of the Company
required to bear the legend set forth in Section 1.3.
"Rule 145" means Rule 145 promulgated under the Securities
Act, or any similar successor rule, as the same shall be in effect from time to
time.
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"Rule 415" means Rule 415 promulgated under the Securities
Act, or any similar successor rule, as the same shall be in effect from time to
time.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar federal statute and the rules and regulations of the Commission
promulgated thereunder, as shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts,
selling commissions, and stock transfer taxes applicable to the sale of
Registrable Securities.
"Transfer" shall mean, with respect to any securities or other
property, any sale, gift, conveyance, transfer, assignment, pledge,
hypothecation or other disposition, as well as any verbal or written agreement
or arrangement to do any of the foregoing.
"$2.00 Warrant" shall mean that certain warrant to purchase up
to 1,250,000 shares of Common Stock, at an exercise price equal to $2.00 per
share.
"Warrants" shall mean, collectively, the $2.00 Warrant and the
Par Value Warrant.
1.3 Restrictive Legends. (a) Each certificate representing (i) the
Conversion Stock, (ii) the $2.00 Warrants, (iii) the Par Value Warrants; and
(iv) any other securities issued or issuable, directly or indirectly, in respect
of any of the foregoing securities upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall be stamped or
otherwise imprinted with legends in substantially the following form (in
addition to any legend(s) required under applicable state securities laws):
THE SALE AND ISSUANCE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR UNDER THE SECURITIES LAW OF ANY STATE OR OTHER
JURISDICTION. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE DISTRIBUTION THEREOF.
THESE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED, OR TRANSFERRED
UNLESS (I) A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO
THESE SECURITIES AND SUCH OFFER, SALE, PLEDGE, OR TRANSFER IS IN
COMPLIANCE WITH APPLICABLE SECURITIES LAW OF ANY STATE OR OTHER
JURISDICTION OR (II) THERE IS AN OPINION OF COUNSEL OR OTHER EVIDENCE,
SATISFACTORY TO THE CORPORATION, THAT AN EXEMPTION THEREFROM IS
AVAILABLE AND THAT SUCH OFFER, SALE, PLEDGE, OR TRANSFER IS IN
COMPLIANCE WITH APPLICABLE SECURITIES LAW OF ANY STATE OR OTHER
JURISDICTION.
FURTHERMORE, THE SALE, PLEDGE, HYPOTHECATION, TRANSFER OR OTHER
DISPOSITION OF THESE SECURITIES ARE RESTRICTED PURSUANT TO THE TERMS OF
A REGISTRATION RIGHTS AGREEMENT (THE "RIGHTS AGREEMENT") DATED JUNE 28,
1996, AMONG THE CORPORATION AND THE HOLDER OF THIS CERTIFICATE. COPIES
OF THE RIGHTS AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD OF THIS
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CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE CORPORATION.
Any Holder (including any permitted subsequent holder of any Restricted
Securities pursuant to Section 3.2 below) consents to the Company making a
notation on its records and giving instructions to any transfer agent of the
Restricted Securities in order to implement the restrictions on transfer
described in this Section 1.3.
(b) The Company shall be obligated to reissue promptly
certificates without the first of the two foregoing legends at the request of
any holder thereof if the holder shall have obtained an opinion of counsel
(which counsel may be counsel to the Company) reasonably acceptable to the
Company to the effect that the securities proposed to be disposed of may
lawfully be so disposed of without registration, qualification or legend. Any
legend endorsed on an instrument pursuant to applicable state securities laws
and the stop-transfer instructions with respect to such securities shall be
removed upon receipt by the Company of an order of the appropriate blue sky
authority authorizing such removal or an opinion of counsel reasonably
satisfactory to the Company to the effect that any such applicable state
securities legends or stop-transfer instructions are not required and may be
removed.
1.4 Notice of Proposed Transfers. Prior to any proposed transfer of any
Restricted Securities, unless there is in effect a registration statement under
the Securities Act covering the proposed transfer, the holder thereof shall give
written notice (the "Notice") to the Company of such holder's intention to make
such transfer. The Notice shall describe the manner and circumstances of the
proposed transfer in sufficient detail, and shall be accompanied by a written
opinion of legal counsel who shall be reasonably satisfactory to the Company,
addressed to the Company and reasonably satisfactory in form and substance to
the Company's counsel, to the effect that the proposed transfer of the
Restricted Securities may be effected without registration under the Securities
Act; provided, however, that for transactions made pursuant to Rule 144 under
the Securities Act, an opinion of counsel shall only be required if reasonably
requested by the Company and which shall be to the effect that the proposed
transfer of the Restricted Securities may be effected without registration under
the Securities Act. Each certificate evidencing the Restricted Securities so
transferred shall bear the appropriate restrictive legends set forth in Section
1.3, except that such certificate shall not bear such restrictive legends if in
the opinion of counsel for the Company such legends are not required in order to
establish compliance with any provisions of the securities laws.
1.5 Holder's Requested Registration.
(a) Request for Registration. In case the Company shall receive
from any Holder a written request (A) in the case of the Par Value Warrant, at
any time from and after one (1) year from the date hereof, that the Company
effect any underwritten registration, qualification or compliance with respect
to Registrable Securities constituting not less than 40% of the then outstanding
Registrable Securities issued or issuable upon exercise of the Par Value
Warrant; and (B) in the case of the $2.00 Warrant, at any time from and after
three (3) years after the date hereof, that the Company effect any underwritten
registration, qualification or compliance with respect to Registrable Securities
constituting not less than 40% of the then outstanding Registrable Securities
issued or issuable upon exercise of the $2.00 Warrant; then in either case, the
Company shall:
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<PAGE> 18
(i) promptly give written notice of the proposed registration,
qualification, or compliance to all other Holders, if any; and
(ii) as soon as practicable, use its best efforts to effect
such registration, qualification, or compliance (including, without limitation,
the execution of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws, and
appropriate compliance with applicable regulations issued under the Securities
Act and any other governmental requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holders
joining in such request as are specified in a written request received by the
Company within 20 days after the date the Company mails such written notice.
Notwithstanding anything to the contrary contained in this Agreement,
the Company shall not be obligated to take any action to effect any such
registration, qualification, or compliance pursuant to this Section 1.5:
(A) In any jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification, or compliance unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act;
(B) During the period starting with the date sixty (60)
days prior to the Company's estimated date of filing of, and ending on the date
one hundred eighty (180) days immediately following the effective date of any
registration statement pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan); provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective; or
(C) After the Company has effected two (2) registrations
pursuant to Section 1.5 which shall have been declared or ordered effective and
pursuant to which Registrable Securities have been sold.
Subject to the foregoing clauses (A) through (D), the Company shall
file a registration statement covering the Registrable Securities so requested
to be registered as soon as practicable, and in any event within 120 days, in
the case of an initial public offering and 90 days in all other cases, after
receipt of the request of the Holder or Holders initiating the requested
registration under Section 1.5(a) hereof.
(b) Underwriting. The right of any Holder to registration
pursuant to this Section 1.5 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent requested (unless
otherwise mutually agreed by a majority in interest of the Holders initially
requesting registration under Section 1.5(a) hereof and intending to participate
in such registration and such Holder with respect to such participation and
inclusion) to the extent provided herein.
The Company shall (together with all Holders selling Registrable
Securities) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by any of the Holders (which
underwriter is reasonably acceptable to the Company). Notwithstanding any other
provision of this Section 1.5, if the managing underwriter advises the Holders
initiating the
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<PAGE> 19
requested registration under Section 1.5(a) hereof in writing that marketing
factors require a limitation of the number of shares to be underwritten, then
the Company shall so advise the Holders, and the number of shares of Registrable
Securities and other securities that may be included in the registration and
underwriting shall be allocated among all Holders and all other holders of
registrable securities which may be distributed through such underwriting in the
following order of priority: (i) first, to the Holders, pro rata, as nearly as
practicable, to the respective amounts of securities of the Company entitled to
inclusion (determined without regard to any requirement of a request to be
included in such registration); and (ii) second to all other holders of
securities of the Company, in proportion, as nearly as practicable, to the
respective amounts of securities of the Company entitled to inclusion
(determined without regard to any requirement of a request to be included in
such registration) in such registration held by all such Holders at the time of
filing the registration statement. No Registrable Securities or other securities
excluded from the underwriting by reason of the underwriter's marketing
limitation shall be included in such registration. To facilitate the allocation
of shares in accordance with the above provisions, the Company or the
underwriters may round the number of shares allocated to any Holder or other
holder to the nearest 100 shares.
If any Holder disapproves of the terms of the underwriting, such Holder
may elect to withdraw therefrom by written notice to the Company and the
managing underwriter. The Registrable Securities so withdrawn shall also be
withdrawn from registration, and such Registrable Securities shall not be
transferred in a public distribution prior to 180 days after the effective date
of such registration, or such other shorter period of time as the underwriters
may require. If by the withdrawal of such Registrable Securities, a greater
number of registrable securities held by other holders may be included in such
registration (up to the maximum of any limitation imposed by the underwriters),
then the Company shall offer to all Holders who have included Registrable
Securities in the registration the right to include additional Registrable
Securities in the same proportion and manner used in determining the effect of
the underwriter limitation in this Section 1.5(b).
If the managing underwriter has not limited the number of Registrable
Securities to be underwritten, the Company may include securities for its own
account or for the account of others in such registration if the managing
underwriter so agrees and if the number of Registrable Securities which would
otherwise have been included in such registration and underwriting will not
thereby be limited.
1.6 Company Registration.
(a) Notice of Registration. If at any time or from time to time,
(i) the Company shall determine to register in an underwritten offering any of
its securities, either for its own account or the account of a security holder
or holders, other than (i) a registration relating solely to employee benefit
plans, or (ii) a registration relating solely to Rule 145 transaction, or a
registration on any registration form that does not permit secondary sales, the
Company shall:
(i) promptly give to each Holder written notice thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
by each Holder, received by the Company within 20 days after the Company mails
such written notice, subject to the provisions below.
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<PAGE> 20
(b) Underwriting. The right of any Holder to registration
pursuant to this Section 1.6 shall be conditioned upon the participation by such
Holder in such underwriting and the inclusion of such Holder's Registrable
Securities in the underwriting to the extent provided herein. Those parties
proposing to distribute their securities through such underwriting shall
(together with the Company and the other holders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the managing underwriter selected for such underwriting by the
Company. Notwithstanding any other provisions of this Section 1.6, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the managing underwriter may limit the
Registrable Securities to be included in such registration. The Company shall so
advise all Holders and the other holders distributing their securities through
such underwriting, and the number of shares of Registrable Securities and other
securities that may be included in the registration and underwriting shall be
allocated among the Company, the Holders, and the other holders as follows:
First to the Company so as to permit the Company to include all shares that the
Company desires to sell; second to the Holders and all other holders entitled to
register securities in such registration, pro-rata, in proportion to the
respective amount of Registrable Securities held by such Holders and other
securities so entitled to inclusion (determined with regard to any requirement
of a request to be included in such registration) in such registration held by
all Holders and all such other holders. To facilitate the allocation of shares
in accordance with the above provisions, the Company or the underwriter may
round the number of shares allocated to any Holder or other holder to the
nearest 100 shares. If any Holder or other holder disapproves of the terms of
any such underwriting, he or it may elect to withdraw therefrom by written
notice to the Company and the managing underwriter. Any securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration, and
shall not be transferred in a public distribution prior to 180 days after the
effective date of the registration statement relating thereto, or such other
shorter period of time as the underwriters may require.
(c) Right to Terminate Registration. The Company shall have
the right to terminate or withdraw any registration initiated by it under this
Section 1.6 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration.
1.7 Form S-3 Registration. From and after the date hereof, the Company
shall use its best efforts to qualify for registration on Form S-3. For so long
as the Company shall qualify for the use of Form S-3, in addition to the rights
contained in the foregoing provisions of this Section 1, (i) the Holders of not
less than 20% of the presently outstanding Registrable Securities shall have the
right to request registration on Form S-3 (all such requests shall be in writing
and shall state the number of shares of Registrable Securities to be disposed of
and the intended methods of disposition of such shares by such Holder or
Holders); provided, however, that no request will be honored with respect to
proposed S-3 offerings which do not have an anticipated aggregate offering price
to the public of at least $500,000. Within 90 days after the Company shall
qualify, the Company shall In case the Company shall receive from a Holder or
Holders a written request that the Company effect a registration on Form S-3 and
any related state securities qualification or blue sky compliance with respect
to such an amount of the Registrable Securities owned by such Holder or Holders,
the Company shall:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, use its best efforts to effect
such registration and all such qualifications and compliances as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Holder's or Holders' Registrable Securities as are
specified in such request; provided, however, that the Company shall not be
obligated to effect any such registration,
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<PAGE> 21
qualification, or compliance pursuant to this Section 1.7: (1) if Form S-3 is
not available for such offering by Holder(s); or (2) if the Company has, within
the twelve-month period preceding the date of such request, already effected two
registrations on Form S-3 for any Holders pursuant to this Section 1.7.
Subject to the foregoing, the Company shall effect such registration,
qualification, or compliance (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act and any other
governmental requirements or regulations) covering the Registrable Securities
and other securities so requested to be registered as soon as practicable after
receipt of the request or requests of the Holder(s). Registrations effected
pursuant to this Section 1.7 shall not be counted as demands for registration
effected pursuant to Section 1.5 hereof or registrations effected pursuant to
Sections 1.6 hereof.
If the registration to be effected pursuant to this Section 1.7 is to
be an underwritten public offering, it shall be managed by an underwriter or
underwriters acceptable to the Company and selected by a majority in interest of
the Holders requesting registration. In such event, the right of any Holder to
registration pursuant to this Section 1.7 shall be conditioned upon the
participation by such Holder in such underwriting and the inclusion of the
Registrable Securities of such Holder in the underwriting to the extent provided
herein. If the managing underwriter so selected determines that marketing
factors require a limitation of the number of shares to be underwritten, the
managing underwriter may limit the Registrable Securities held by such Holders
to be included in such registration. The Company shall so advise such Holders,
and the number of shares of Registrable Securities that may be included in the
registration shall be allocated among the Holders and other holders as follows:
First, among the Holders in proportion to the respective amounts of Registrable
Securities held by each of such Holders at the time of the filing of the
registration statement; and second, to the other holders in proportion as nearly
as practicable, to the amount of securities entitled to inclusion in such
registration (determined without regard to any requirement of a request to be
included in such registration). Any Registrable Securities or other securities
that are so excluded from the underwriting shall be excluded from the
registration. As used throughout this Section the term "Form S-3" shall be
deemed to include any equivalent successor form for registration pursuant to the
Act.
1.8 Expenses of Registration. All Registration Expenses incurred in
connection with the registration, qualification or compliance pursuant to
Sections 1.5, 1.6, and 1.7 shall be borne by the Company; provided, however,
that in connection with any registration of securities, the Company shall only
be responsible for the fees and costs of one counsel for the Holders (and any
other holders of securities included in such registration). All Selling Expenses
relating to securities so registered shall be borne by the holders of such
securities pro rata on the basis of the number of shares of securities so
registered on their behalf.
1.9 Lock-up. Each of the Holders hereby agrees not to offer, sell, make
any short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any of the Company's Common Stock held of record or beneficially
owned by such person (other than those included in the registration) which at
the time of the effective date of such registration statement may be sold or
otherwise transferred in reliance upon Rule 144 promulgated under the Securities
Act during the period of time (not to exceed 180 days) determined by the Board
of Directors of the Company upon advice of its managing underwriter, from and
after the effective date of any registration statement filed by the Company for
its own account or the account of selling stockholders; provided that the
obligations of the Holders under this Section 1.9 shall not apply unless each
officer and director of the Company and the holders of five percent (5%) of the
Company's voting securities then outstanding are bound by similar restrictions.
Such restriction shall
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not apply to shares registered in such offering. In order to enforce this
provision, the Company may impose stop-transfer instructions with respect to
such shares until the end of such period. The obligations described in this
Section 1.9 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms that may be promulgated
in the future.
1.10 Registration Procedures. If and whenever the Company is required
by the provisions of this Section 1 to use its most diligent efforts to effect
promptly the registration of Registrable Securities the Company shall:
(a) Prepare and file with the Commission a registration statement
with respect to such Registrable Securities and use its most diligent efforts to
cause such registration statement to become and remain effective as provided
herein.
(b) 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 and
current and to comply with the provisions of the Securities Act with respect to
the sale of, or other disposition of all Registrable Securities covered by such
registration statement, including such amendments and supplements as may be
necessary to reflect the intended method of disposition of the prospective
seller or sellers of such Registrable Securities but for no longer than one
hundred eighty (180) days subsequent to the effective date of such registration
in the case of a registration statement on Form S-1 (or any similar form of
registration statement required to set forth substantially identical
information); provided, however, that (i) such period shall be extended for a
period of time equal to the period the underwriter recommends that all the
Holders refrain from selling the securities included in such registration due to
marketing conditions or other conditions which adversely affect the offer and
sale of such securities; and (ii) in the case of any registration of Registrable
Securities on Form S-3 which is intended to be offered on a continuous or
delayed basis, such period shall be extended, if necessary, to keep the
registration statement effective until all such Registrable Securities are sold,
provided that Rule 415 permits an offering on a continuous or delayed basis, and
provided further that applicable rules under the Securities Act governing the
obligation to file a post-effective amendment permit, in lieu of filing a
post-effective amendment that (I) includes any prospectus required by Section
10(a)(3) of the Securities Act or (II) reflects facts or events representing a
material or fundamental change in the information set forth in the registration
statement, the incorporation by reference of information required to be included
in (I) and (II) above to be contained in periodic reports filed pursuant to
Section 13 or 15(d) of the Exchange Act in the registration statement.
(c) Furnish to each prospective seller of Registrable Securities
such number of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents, as such seller may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities of such seller.
(d) Notify each seller of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or
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<PAGE> 23
necessary to make the statements therein not misleading or incomplete in the
light of the circumstances then existing.
(e) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange or approved for quotation on
any inter-dealer quotation system on which similar securities issued by the
Company are then listed or quoted.
(f) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such registration statement and a CUSIP number
of all such Registrable Securities in each case not later than the effective
date of such registration.
(g) Otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than 18 months, beginning with
the first month after the effective date of the Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
(h) In connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 1.5, 1.6 or 1.7 hereof, the
Company will enter into an underwriting agreement reasonably necessary to effect
the offer and sale of Common Stock, provided such underwriting agreement
contains customary underwriting provisions and provided further that if the
underwriter so requests, the underwriting agreement will contain customary
contribution provisions.
(i) Each Seller of Registrable Securities shall not (until further
notice) effect sales of shares covered by any registration statement 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.
1.11 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) The Company will indemnify each Holder, each of its officers
and directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, and each underwriter, if any, and
each person who controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages or liabilities (or
actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained, on the effective date thereof, in any registration statement, any
prospectus contained therein, or any amendment or supplement thereto, or based
on any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements therein (in the case of
a prospectus, in the light of the circumstances under which they were made) not
misleading, or any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company in connection
with any such registration, qualification or compliance, and the Company will
reimburse each such Holder, each of its officers and directors and partners and
each person controlling such Holder, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action, provided that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon
10
<PAGE> 24
and in conformity with written information furnished to the Company by an
instrument duly executed by such Holder or underwriter and stated to be
specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers and its legal counsel and independent accountants,
each underwriter, if any, of the Company's securities covered by such a
registration statement, each person who controls the Company or such underwriter
within the meaning of Section 15 of the Securities Act, against all claims,
losses, damages and liabilities (or actions in respect thereof), including any
of the foregoing incurred in settlement of any litigation commenced or
threatened, arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained, on the effective date thereof, in any
such registration statement, any prospectus contained therein, or any omission
(or alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of a
prospectus, in the light of the circumstances under which they were made) not
misleading, and will reimburse the Company, and such directors, officers,
persons, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement or
prospectus in reliance upon and in conformity with written information furnished
to the Company by an instrument duly executed by the Holder and stated to be
specifically for use therein; provided, however, that the obligations of the
Holder hereunder shall be limited to an amount equal to the net proceeds to such
Holder of Registrable Securities sold as contemplated herein.
(c) Each party entitled to indemnification under this Section
1.11 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 1 to the extent such
failure is not prejudicial. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect to such
claim or litigation. Notwithstanding anything to the contrary contained in this
Section 1.11(c), the Indemnified Party shall have the right to employ its own
counsel in any action, claim, litigation, proceeding or investigation, and the
fees and expenses thereof shall be borne by the Indemnified Party, unless the
Indemnified Party shall have reasonably concluded that there may be one or more
legal defenses available to it which are different from or additional to those
available to the Indemnifying Party, in which case the Indemnifying Party shall
bear all of such Indemnified Party's legal and other fees and expenses which
arise in defense thereof. In such event, the Indemnifying Party shall not have
the right to direct the defense of such action, claim, litigation, proceeding or
investigation on behalf of the Indemnified Party.
(d) If the indemnification provided for in this Section 1.11
is held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage or expense referred to
herein, then the Indemnifying Party, in lieu of indemnifying the Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
with respect
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<PAGE> 25
to such loss, liability, claim, damage or expense in the proportion that is
appropriate to reflect the relative fault of the Indemnifying Party and the
Indemnified Party in connection with the statements or omissions that resulted
in such loss, liability, claim, damage or expense, as well as any other relevant
equitable considerations. The relative fault of the Indemnifying Party and the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of material fact or the omission
(or alleged omission) to state a material fact relates to information supplied
by the Indemnifying Party or by the Indemnified Party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
1.12 Information by Holder. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this Section 1.
1.13 Rule 144 Reporting. With a view to continuing to make available
the benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) File with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act;
(c) Furnish to any Holder promptly upon request, a written
statement as to its compliance with the reporting requirements of Rule 144 and
of the Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company and other information in the possession of or reasonably obtainable by
the Company as a Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Holder to sell any such securities
without registration.
1.14 Termination of Registration Rights. This Agreement, including
rights of each Holder under this Section 1 shall terminate five (5) years from
and after the date hereof.
SECTION 2
MISCELLANEOUS
2.1 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of California as applied to agreements among California
residents entered into and to be performed entirely within California.
2.2 Successors and Assigns; Assignment of Rights. The rights and
benefits of a Holder hereunder may be assigned to a transferee or assignee in
connection with the transfer or assignment of any Warrants or Registrable
Securities owned by such Holder (A) to any person or entity which is a
majority-owned subsidiary of such Holder or controls, is controlled by or under
common control with such Holder, and (B) to any other person or entity which
acquires all or substantially all of the assets of the Holder, provided,
however, that as a condition precedent to any such assignment hereunder, the
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<PAGE> 26
transferee or assignee, as the case may be, executes a written instrument
agreeing to be bound by the terms and provisions of this Agreement. Any such
transfer or assignment permitted hereby shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
2.3 Entire Agreement; Amendment; Waiver. This Agreement and the
Purchase Agreement constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof. Neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated,
except by a written instrument signed by the Company and the holders of at least
fifty one percent (51%) of the Registrable Securities, and any such amendment,
waiver, discharge or termination shall be binding upon all the parties hereto,
but in no event shall the obligation of any party hereto be materially
increased, except upon the written consent of such party.
2.4 Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by United States
first-class mail, postage prepaid, sent by -facsimile or delivered personally by
hand or nationally recognized overnight courier addressed (a) if to the Company,
at its offices at 57 Commerce Drive, Brookfield, Connecticut 06804, Attention:
President; or (b) the Holder(s) at the address set forth on the Company's
records for holders of the Warrants All such notices and other written
communications shall be effective on the date of mailing, facsimile transfer or
delivery.
2.5 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any Holder, upon any breach or default of the
Company under this Agreement shall impair any such right, power or remedy of
such Holder nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
be deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any Holder of any breach or default under this Agreement or any
waiver on the part of any Holder of any provisions or conditions of this
Agreement must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any Holder, shall be cumulative and
not alternative.
2.6 Rights; Separability. Unless otherwise expressly provided herein, a
Holder's rights hereunder are several rights, not rights jointly held with any
of the other Holder. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
2.7 Titles and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing or interpreting this Agreement.
2.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
2.9 Aggregation of Stock. All shares of the Registrable Securities held
or acquired by affiliated entities or persons shall be aggregated together for
the purpose of determining the availability of any rights under this Agreement.
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2.10 No Third Party Beneficiaries. The covenants and agreements set
forth herein are for the sole and exclusive benefit of the parties hereto and
their respective permitted successors and assigns and such covenants and
agreements shall not be construed as conferring, and are not intended to confer,
any rights or benefits upon any other persons.
2.11 Remedies. The parties to this Agreement acknowledge and agree that
a breach of any of the transfer or other restrictions with respect to the
Restricted Securities or any of the covenants of the Holders set forth in this
Agreement may not be compensable by payment of money damages and, therefore,
that the covenants of the foregoing parties set forth in this Agreement may be
enforced in equity by a decree requiring specific performance. Without limiting
the foregoing, if any disputes arise hereunder concerning the sale or other
disposition of any of the Restricted Securities contained herein, the parties to
this Agreement agree that an injunction may be issued restraining the sale or
other disposition of such Restricted Securities or interest or rescinding any
such sale or other disposition, pending resolution of such controversy. Such
remedies shall be cumulative and non-exclusive and shall be in addition to any
other rights and remedies the parties may have under this Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement effective as of the day and year first above written.
MEMRY CORPORATION
By:/s/ William H. Morton, Jr.
-----------------------------------------
Name: William H. Morton, Jr.
Title: Senior Vice President
RAYCHEM CORPORATION
By:/s/ Andrew F. Roake
-----------------------------------------
Name: Andrew F. Roake
Title: Vice President
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REGISTRATION RIGHTS AGREEMENT
MEMRY CORPORATION
NO EXHIBITS
16
