Exhibit 10.49
SECURITIES PURCHASE AGREEMENT
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MEMRY CORPORATION
DECEMBER 9, 1994
SECURITIES PURCHASE AGREEMENT
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THIS SECURITIES PURCHASE AGREEMENT ("Agreement") is made as of the 9th day
of December, 1994 by and between MEMRY CORPORATION, a Delaware corporation (the
"Company"), and Dominion Partners, a Partnership with an address at 0000 Xxx xx
Xxx Xxxx. #000 Xxxxx, XX 00000 (the "Investor").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Securities.
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1.1. Sale and Issuance of Securities.
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Subject to the terms and conditions of this Agreement, on the Closing Date
(defined below) the Investor agrees to purchase and the Company agrees to sell
and issue to the Investor Fourteen Thousand Two Hundred Eighty-Six (14,286)
shares of the Company's Common Stock for a purchase price of Twenty-Five
Thousand Dollars ($25,000.00), being $1.75 per share (the "Closing"). The
shares of the Company's Common Stock purchased pursuant to this Section 1.1 are
hereinafter referred to as the "Shares" and the "Securities," and the purchase
price paid pursuant to this Section 1.1 is hereinafter referred to as the
"Purchase Price."
1.2 Closing.
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(a) The Closing shall take place at the offices of Xxxx Xxxxx &
Xxxxxxx, Stamford, Connecticut, on later than Dec. 12th (the "Closing Date").
(b) At the Closing the Company shall deliver to the Investor a
certificate representing the appropriate number of shares of Common Stock which
the Investor is purchasing against delivery to the Company by such Investor of a
check in the amount applicable portion of the Purchase Price to be paid at such
Closing.
2. Representations and Warranties of the Investor. Investor hereby
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represents and warrants to the Company and acknowledges and intends that the
Company rely thereon, as follows:
(a) Investor will not sell, assign, pledge, transfer, or otherwise
dispose of, whether directly or indirectly, all or any portion of the Securities
purchase hereby to any person or entity without complying with applicable
securities laws;
(b) Investor is acquiring the Securities for Investor's own account,
for investment purposes only and not with a view to any distribution of such
Securities;
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(c) Investor acknowledges and agrees that the Company has informed
Investor that the Securities are not registered under any securities laws, and,
therefore, that (absent registration under or exemption from applicable
securities laws) the Securities are subject to substantial restrictions on
transfer and the Securities may not be transferred for an indefinite period of
time;
(d) Investor has investigated the purchase of the Securities to the
extent Investor deems necessary or desirable, and the Company has provided
Investor with any assistance in connection therewith which Investor has
requested. Investor has such knowledge and experience in financial and business
matters that Investor is capable of evaluating the merits and risks of the
acquisition of the Securities and of making an informed investment decision with
respect thereto and Investor has the ability to bear the economic risk of an
investment in the Company and to withstand a complete loss of its investment.
Investor is financially able to hold the Securities for an indefinite period of
time;
(e) Investor is not relying on the Company or any of its directors,
officers, employees, or agents for guidance with respect to tax and other
applicable laws of any jurisdiction, or other economic considerations, and
Investor has been furnished by the Company with all information Investor has
deemed necessary or appropriate in order to form an informed investment decision
concerning the purchase of the Securities. Investor has been afforded an
opportunity to ask questions of, and receive answers from representatives of the
Company concerning the terms and conditions of Investor's purchase of the
Securities and has been afforded the opportunity to obtain any additional
information (to the extent of the Company had such information or could acquire
it without unreasonable effort or expense) necessary to verify the accuracy of
information otherwise furnished by the Company;
(f) Investor understands that no United States federal or state agency
or any agency of any other government has passed upon or made any recommendation
or endorsement of any investment in the Company;
(g) Investor has not been organized for the purpose of purchasing the
Securities; and
(h) Investor understands that the certificates evidencing the Shares
will bear a legend stating in substance:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTER UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED,
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HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
COMPANY THAT SUCH SALE, OFFER FOR SALE, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION DOES NOT VIOLATE THE PROVISIONS OF SUCH ACT OR UNLESS SOLD
PURSUANT TO RULE 144 OF SUCH ACT."
provided, however that the Company agrees to cause such legend to be removed
from any certificates representing the Shares after such Shares have been
transferred pursuant to an effective registration under the Securities Act of
1933 or an available exemption under Section 4(1) of that Act, or Rule 144,
promulgated thereunder.
3. Registration. The Company covenants and agrees as follows:
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3.1 Definitions. For purposes of this Section 3:
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(a) The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"Act"), and the declaration or ordering of effectiveness of such registration
statement or document;
(b) The term "Registrable Securities" means (1) the Shares, and (2)
any Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement of,
such Shares, excluding in all cases, however, any Registrable Securities sold by
a person in a transaction in which its rights under this Section 4 are not
assigned;
(c) The number of shares of "Registrable Securities then outstanding"
shall be the number of shares of Common Stock outstanding which are, and the
number of shares of Common Stock issuable pursuant to exercisable or convertible
securities which are, Registrable Securities;
(d) The term "Holder" means any person owning or having the right to
acquire Registrable Securities or any assignee thereof in accordance with
Section 3.10 hereof; and
(e) The term "Form S-1" means such form under the Act as in effect on
the date hereof or any registration form under the Act subsequently adopted by
the SEC which permits inclusion or
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incorporation of substantial information by reference to other documents filed
by the Company with the SEC.
3.2 Registration.
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(a) The Company shall use its best efforts to effect the registration
under the Act of all Registrable Securities within forty-five days after the
availability of audited financial statements for its fiscal year ending June 30,
1994, but in no event later than December 31, 1994.
(b) If the Holders intend to distribute the Registrable Securities
covered by the registration by means of an underwriting, they shall so advise
the Company. All Holders proposing to distribute their securities through such
underwriting ("Participating Holders") shall (together with the Company as
provided in subsection 3.3(e)) enter into an underwriting agreement in customary
from with the underwriter or underwriters selected for such underwriting by a
majority in interest of the Participating Holders. Notwithstanding any other
provision of this Section 3.2, if the underwriter advises the Participating
Holders in writing that marketing factors require a limitation of the number of
shares to be underwritten, then the number of shares of Registrable Securities
that may be included in the underwriting shall be allocated among all
Participating Holders thereof in proportion (as nearly as practicable) to the
amount of Registrable Securities of the Company owned by each Participating
Holder.
(c) Notwithstanding the foregoing, if the Company shall furnish to
Holders a certificate signed by the President of the Company stating that the
Company is engaged in an activity which, in the good faith judgement of the
Board of Directors of the Company, would be adversely affected by the requested
registration to the material detriment of the Company, then the Company shall
have the right to defer such filing for a period of not more than four months,
provided that such right may not be exercised more than once.
3.3 Obligations of the Company. Whenever required under this Section
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3 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and keep such registration statement
effective until all of the Registrable Securities shall have been sold by the
Investor;
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(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of the securities covered by such
registration statement;
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them;
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders to
enable the Holders to consummate the disposition in such jurisdictions of such
securities, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions;
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering, (each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement);
(f) Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the 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
made therein not misleading in the light of the circumstances then existing; and
(g) Furnish, at the request of any Holder, on the date that such
Holder's Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Section 3, if such securities
are being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, (i) an opinion, dated such date, of the
counsel representing the Company for the purposes
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of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders and (ii) a letter, dated such date, from the
independent public accountants of the Company, in form and substance as is
customarily given by independent public accountants to underwriters in an
underwritten public offering, addressed to the underwriters, if any, and the
Holders.
3.4 Obligations of Selling Holders.
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(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 3 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish to
the Company in writing such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
(b) The Holders of Registrable Securities included in the registration
statement will not (until further notice) effect sales thereof 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.
3.5 Expenses of Registration. All expenses other than underwriting
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discounts and commissions incurred in connection with registrations, filings, or
qualifications pursuant to Section 3.2, including (without limitation) all
registration,, filing and qualification fees, printers' and accounting fees,
fees and disbursements of counsel for the Company, transportation expenses,
mailing expenses, and the fees and disbursements of counsel for the selling
Holders shall be borne and paid by the Company.
3.6 Underwriting Requirements. In connection with any offering
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involving an underwriting of shares being issued by the Company, the Company
shall not be required to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between he Company and the underwriters selected by it, and then only in such
quantity as will not, in the opinion of the underwriters, jeopardize to success
of the offering by the Company. If the total amount of securities, including
Registrable Securities, requested by shareholders to be included in such
offering exceeds the amount of Securities to be sold other than by the Company
that the underwriters reasonably believe compatible with the success of the
offering, then the Company shall be required to include in the offering only
that
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number of such securities, including Registrable Securities, which the
underwriters believe will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling Holders
according to the total amount of securities entitled to be included therein
owned by each selling Holder or in such other proportions as shall mutually be
agreed to by such selling Holders).
3.7 Delay of Registration. No Holder shall have any right to obtain
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or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 3.
3.8 Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 3:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder requesting to join in such registration, any
underwriter (as defined in the Act) for such Holder and each person, if any, who
controls such Holder or underwriter within the meaning of the Act or the
Securities Exchange Act of 1934, as amended (the "1934 Act") against any losses,
claims, damages, or liabilities (joint or several) to which they may become
subject under the Act, the 1934 Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements made therein not misleading, or (iii) any violation or
alleged violation by the Company of the Act, the 1934 Act, any state securities
law or any rule or regulation promulgated under the Act, the 1934 Act or any
state securities law applicable to the Company in connection with any such
Holder, underwriter or controlling person, as incurred, any legal or other
expenses reasonable incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided however,
that the indemnity agreement contained in this subsection 3.8(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage liability, or
action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company
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be liable in any such case for any such loss, claim, damage, liability, or
action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such Holder,
underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company, each of its directors, each of its officers who
has signed the registration statement, each person, if any, who controls the
Company within the meaning of the Act, any underwriter, any other Holder selling
securities in such registration statement and any controlling person of any such
underwriter or other Holder, against any losses, claims, damages, or liabilities
(joint or several) to which any of the foregoing persons may become subject,
under the Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise out
of or are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration; and such Holder will pay, as incurred, any legal or
other expenses reasonably incurred by any person intended to be indemnified
pursuant to this subsection 3.8(b) in connection with investigating or defending
any such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 4.8(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld.
(c) Promptly after receipt by an indemnified party under this Section
3.8 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 3, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnified party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by
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such counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
3.8, but omission so to deliver written notice to the indemnifying party will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 3.8 mutually satisfactory to the parties;
provide, however, that an indemnified party shall have the right to retain its
own counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
3.8, but omission so to deliver written notice to the indemnifying party will
not relieve it of any liability that it may have to any indemnifed party
otherwise than under this Section 3.8.
(d) The obligations of the Company and Holders under this Section 3.8
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 3, and otherwise.
3.9 Reports Under Securities Exchange Act of 1934. With a view to
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making available tot he Holders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration or
pursuant to a registration on Form S-1, the Company agrees on and after the
Closing to:
(a) Make and keep public information available, as those terms
are understood and defined in SEC Rule 144;
(b) Use its best efforts to enable the Holders to utilize Form S-
1 for the sale of their Registrable Securities;
(c) File with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
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(d) Furnish to any Holder, so long as the Holder owns Registrable
Securities representing two percent (2%) or more of the Company's Common Stock,
(i) forthwith upon request a written statement by the Company that it has
complied with the reporting requirements of SEC Rule 144, the Act and the 1934
Act, or that it qualifies as a registrant whose securities may be resold
pursuant to Form S-1 (at any time after it so qualifies), (ii) substantially
concurrently with the filing thereof, copies of the annual and quarterly reports
of the Company filed with the SEC and such other reports and documents so filed
by the Company, (iii) as soon as they shall become available to the Company, any
and all audited financial statements of the Company and management letters from
the Company's independent auditors and the Company's response thereto, and (iv)
such other information as may be reasonably requested in availing any Holder of
any rule or regulation of the SEC which permits the selling of any such
securities without registration or pursuant to such form.
3.10 Assignment of Registration Rights. The rights to cause the
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Company to register Registrable Securities pursuant to this Section 3 may be
assigned by a Holder to a transferee or assignee of such securities provided the
Company is, prior to or simultaneously with such transfer, furnished with
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being assigned;
and provide, further, that such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Act.
3.11 Amendment of Registration Rights. Any provision of this Section
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3 may be amended and the observance thereof may be waived (either generally or
in a particular instance and either retroactively or prospectively) only with
the written consent of the Company and the holders of a majority of the
Registrable Securities then outstanding. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each holder of any
securities purchased under this Agreement at the time outstanding (including
securities into which such securities are convertible), each future holder of
all such securities, and the Company.
4. Miscellaneous.
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4.1 Survival of Warranties. The warranties, representations and
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covenants of the Company and Investor contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing shall in no way be
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affected by any investigation of the subject matter thereof made by or on behalf
of the Investor or the Company.
4.2 Successors and Assigns. The terms and conditions of this
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agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
4.3 Governing Law. This Agreement shall be governed by and construed
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under the laws of the State of Connecticut as applied to agreements among
Connecticut residents entered into and to be performed entirely within
Connecticut.
4.4 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.5 Titles and Subtitles. The titles and subtitles used in this
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Agreement are used for convenience only and are not to be considered in
construing or interpreting this agreement.
4.6 Notices. Unless otherwise provided, any notice required or
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permitted under this Agreement shall be given in writing and shall be deemed
effectively given (i) upon personal delivery to the party to be notified, (ii)
48 hours after deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed to the party to be notified at the
address indicated for such party on the signature page hereof, or at such other
address as such party may designate by ten (10) days' advance written notice to
the other parties, (iii) upon transmission of a confirmed telecopy to such party
at a telecopier number furnished by such party for such purpose, or (iv) upon
delivery to such address by Federal Express or other courier service.
4.8 Amendments and Waivers. Except as specified in Section 3.11, any
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term of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and the holders of a majority of the outstanding Shares. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any securities purchased under this
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Agreement at the time outstanding (including securities into which such
securities are convertible), each future holder of all such securities and the
Company.
4.9 Severability. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
4.10 Indemnification.
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(a) The Company shall, with respect to the representations,
warranties, covenants and agreements made by the Company herein, indemnify,
defend and hold the Investor harmless against all liability, loss or damage,
together with all reasonable costs and expenses related thereto (including legal
and accounting fees and expenses), arising from the untruth, inaccuracy or
breach of any such representations, warranties, covenants or agreements of the
Company.
(b) The Investor shall, with respect to the representations,
warranties, covenants and agreements made by the Investor herein, indemnify,
defend and hold the Company harmless against all liability, loss or damage,
together with all reasonable costs and expenses related thereto (including legal
and accounting fees and expenses), arising from the untruth, inaccuracy or
breach of any such representations, warranties, covenants or agreements of the
Investor.
4.11 Remedies. In case any one or more of the covenants and/or
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agreements set forth in this Agreement shall have been breached by the Company,
the Investor may proceed to protect and enforce its or their rights either by
suit in equity and/or by action at law, including, but not limited to, an action
for damages as a result of any such breach and/or an action for specific
performance of any such covenant or agreement contained in this Agreement. A
party acting pursuant to this Section 4.11 shall be indemnified against all
liability, loss or damage, together with all reasonable costs and expenses
related thereto (including legal and accounting fees and expenses) in accordance
with Section 4.10.
4.12 Nouns and Pronouns. Whenever the context may require, any
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pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice versa.
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4.13 Information to be provided by Investor. Investor agrees to
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provide to the Company such information as the Company may reasonably request in
order to make accurate and timely required filings and disclosures to its
stockholders and to federal, state and self-regulatory agencies.
4.14 Confidentiality. Any information provided to Investor pursuant
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to this Agreement shall be used by the Investor solely for, and will only be
disclosed to Investor's officers, employees, agents and professional advisors
who need to know such information and who will use such information solely for,
the purpose of evaluating the Investor's investment in the Company and in
furtherance of its interests as an investor in the Company, and the Investor
will, and will cause such officers, employees, agents and professional advisors
to, maintain the confidentiality of all non-public information of the Company
obtained pursuant to this Agreement which is designated by the Company as
confidential and which could not otherwise be legally and legitimately obtained
by the Investor.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
MEMRY CORPORATION
00 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, President
INVESTOR DOMINION PARTNERS
by: DOMINION FINANCIAL GROUP, INC.
(Managing Partner)
/s/ W. Xxxxxx Xxxxxx - Pres.
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Name:
Title, if appropriate:
