Unassociated Document


    

      Exhibit
        10.1

       

      SETTLEMENT
        AGREEMENT AND MUTUAL RELEASE

       

      This
        Settlement Agreement and Mutual Release (“Settlement
        Agreement”)
        is
        made as of this 14th
        day of
        August, 2008 by and between Memry Corporation (“Memry”),
        a
        Delaware corporation, on the one hand, and Kentucky Oil Technology, N.V.
        (“Kentucky
        Oil”),
        a
        Netherlands corporation, Memory Metal Holland, B.V. (“MMH”),
        a
        Netherlands corporation, Peter Besselink (“Besselink”),
        an
        individual, United
        Stenting, Inc. (“USI”),
        a
        Nevis corporation, and Dr.
        Wilfried van Moorleghem (“van
        Moorleghem”),
        an
        individual.
        Kentucky Oil, MMH, and
        Besselink
        are
        sometimes referred to collectively as the “Kentucky
        Oil Parties.”

       

      RECITALS

       

      Whereas,
        MMH and Memry entered a Secrecy Agreement, dated October 28, 1998 (the
“Secrecy
        Agreement”);

       

      Whereas,
        Memry and Memry Europe N.V., a former indirect subsidiary of Memry, entered
        into
        a Collaboration Agreement with USI,
        dated
        June 9, 1999 (the “Collaboration
        Agreement”);

       

      Whereas,
        the Kentucky Oil Parties warrant and represent herein that Kentucky Oil is
        the
        sole successor in interest to MMH for all of its rights, title and interest
        in
        the Secrecy Agreement not retained by MMH;

       

      Whereas,
        the Kentucky Oil Parties and
        USI
warrant
        and represent herein that Kentucky Oil is the sole successor in interest
        to USI
        for all of its rights, title and interest in the Collaboration Agreement
        not
        retained by USI; 

       

      Whereas,
        Memry and Schlumberger Technology Corporation (“STC”),
        a
        Texas corporation, entered into a Development Agreement, dated as of January
        1,
        2001 (the “Development
        Agreement”);

       

      Whereas,
        Memry, Kentucky Oil, MMH, Besselink, and STC are or were parties to an action
        currently pending in the United States District Court for the Northern District
        of California, styled as Memry
        Corporation v. Kentucky Oil Technology, N.V., et al.,
        Case
        No. CV 04-03843 RMW (HRL) (the “Lawsuit”);

       

      Whereas,
        SAES Getters (“Getters”),
        an
        Italian corporation, and Memry announced a merger agreement on June 24,
        2008;

       

      Whereas,
        Memry and the Kentucky Oil Parties now wish to settle their disputes with
        each
        other in the Lawsuit, with neither party admitting any liability to the other;
        and 

       

      Whereas,
        STC and the Kentucky Oil Parties have settled their disputes by way of a
        separate Settlement Agreement and Mutual Release, an executed copy of which
        has
        been provided to counsel for Memry under the terms of the protective order
        in
        the Lawsuit.

       

      NOW
        THEREFORE, in consideration of the mutual covenants set forth in this Settlement
        Agreement, the parties agree as follows:


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        	 	
                A.

              	
                Consideration.  In
                  consideration for this Settlement Agreement and the agreements
                  and mutual
                  releases contained herein, Memry is,
                  simultaneously with the execution and delivery hereof, paying Kentucky
                  Oil the total sum of $3,500,000.00. The payment is being made
                  in
                  cash by wire transfer to counsel for Kentucky Oil simultaneously
                  with
                  the execution and delivery of signed counterparts of this Settlement
                  Agreement. Counsel for Kentucky Oil will deliver the payment to
                  Kentucky
                  Oil upon the filing of a Stipulation for Dismissal with prejudice
                  further
                  described in Section G of this Settlement Agreement. Kentucky Oil
                  will
                  accept any tax liability that might be associated with this payment.
                  Memry
                  makes no representations or warranties regarding any tax liability,
                  if
                  any, that might be associated with this payment or any of the terms
                  of
                  this Settlement Agreement. The parties agree that neither Memry
                  nor any of
                  the other Memry-Related Parties (as hereinafter defined) has any
                  responsibility for any tax liability which may arise from this
                  Settlement
                  Agreement.

              


      

       

      
        	 	
                B.

              	
                Assignment
                  of Certain Rights under Development
                  Agreement

              


      

       

      
        	 	
                a.

              	
                Effective
                  upon the execution and delivery hereof (referred to herein as the
                  “Effective
                  Time”),
                  Memry hereby assigns its remaining rights under the Development
                  Agreement
                  to Kentucky Oil. Kentucky Oil agrees and acknowledges that, by
                  doing so,
                  Memry in no way is assigning or transferring any Background IP
                  Rights,
                  Unrelated IP Rights or Development Program IP Rights (all as defined
                  in
                  the Development Agreement) or any other intellectual property rights
                  that
                  Memry did not obtain pursuant to the Development
                  Agreement.

              


      

       

      
        	 	
                b.

              	
                Effective
                  upon the Effective Time, Memry assigns to Kentucky Oil its remaining
                  rights under the two License Agreements (the “License
                  Agreements”)
                  entered into between Memry and STC in connection with the Development
                  Agreement and in the respective forms of Exhibits B and B-1
                  thereto.

              


      

       

      
        	 	
                c.

              	
                Such
                  assignments are without representation and warranty. Kentucky Oil
                  agrees
                  and acknowledges that, pursuant to a separate Settlement Agreement
                  and
                  Release being entered into substantially simultaneously herewith
                  with STC
                  (the “STC
                  Settlement Agreement”),
                  all known and unknown claims existing against Memry on the date
                  hereof
                  under and pursuant to the Development Agreement and the License
                  Agreements
                  are being released, and that STC is consenting to the assignment
                  by Memry
                  to Kentucky Oil of Memry’s remaining rights under the Development
                  Agreement and the License Agreements. Memry shall have no past
                  or future
                  liability for any failure of STC or any other party to make any
                  payments
                  under the Development Agreement and/or the License
                  Agreements.

              


      

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      


      
        	 	
                d.

              	
                Memry
                  hereby acknowledges the existence of and the exclusive ownership
                  by
                  Kentucky Oil or its assignee of: (1) the published PCT Application
                  No. WO
                  98/32412; (2) United States Patent Nos. 6,488,702, 6,772,836, 6,799,637,
                  7,185,709 and 7,398,831; and (3) the foreign patents related to
                  the
                  foregoing PCT Application listed on Attachment IV. Memry agrees
                  not to
                  infringe upon, or claim ownership of, the inventions covered by
                  the valid
                  claims of these patents, and any valid claims of any patents that
                  subsequently issue to Kentucky Oil directly related to the application
                  described in clause (1) above. Notwithstanding anything in this
                  subsection
                  to the contrary, however, nothing contained herein shall prevent
                  Memry (i)
                  from making, using, offering for sale, selling or claiming ownership
                  of
                  any technology that is not covered by the valid claims of the aforesaid
                  patents and application and/or (ii) challenging the validity of
                  any and/or
                  all of the claims of the above-referenced patents and/or application
                  in
                  any proceeding.

              


      

       

      
        	 	
                C.

              	
                Termination
                  of Agreements

              


      

       

      
        	 	
                a.

              	
                The
                  Secrecy Agreement, dated October 28, 1998, is terminated and all
                  rights
                  and obligations therein are extinguished and released.
                  

              


      

       

      
        	 	
                b.

              	
                The
                  Collaboration Agreement, dated June 9, 1999, is terminated and
                  all rights
                  and obligations therein are extinguished and released. The parties
                  agree
                  and acknowledge that AMT (as defined below) has agreed to this
                  in the
                  Mutual Release and Agreement (as defined
                  below).

              


      

       

      
        	 	
                D.

              	
                Covenant
                  Not To Sue

              


      

       

      
        	 	
                a.

              	
                Kentucky
                  Oil alleged a Fifth Counterclaim for joinder of Besselink as co-inventor
                  of certain United States patents, and on May 2, 2008 filed a motion
                  [Docket 1165] seeking dismissal of that Counterclaim without prejudice
                  as
                  to United States Patent Nos. 6,772,836 (the “‘836
                  Patent”),
                  6,799,637 (the “‘637
                  Patent”),
                  and 7,185,709 (the “‘709
                  Patent”)
                  and with prejudice as to the seven other patents identified in
                  that
                  Counterclaim.

              


      

       

      
        	 	
                b.

              	
                On
                  July 16, 2008, the United States District Court for the Northern
                  District
                  of California filed an Order [Docket 1187] in which it, inter
                  alia,
                  dismissed Kentucky Oil’s Fifth Counterclaim as against both Memry and STC,
                  without prejudice as to the ‘836, ‘637, and ‘709 Patents and with
                  prejudice as to the seven remaining patents identified in that
                  Counterclaim, provided that Kentucky Oil, within five Court days
                  of the
                  entry of that Order, provided Memry a written covenant not to file
                  a
                  lawsuit against Memry under 35 U.S.C. § 256 for correction of inventorship
                  of the ‘836, ‘637, and ‘709 Patents, in the form attached as Exhibit A to
                  the proposed Order; 

              


      

       

      
        	 	
                c.

              	
                On
                  July 16, 2008, Kentucky Oil provided Memry with a written covenant
                  not to
                  file a lawsuit against Memry under 35 U.S.C. § 256 for correction of
                  inventorship of the ‘836, ‘637, and ‘709
                  Patents;

              


      

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      


      
        	 	
                d.

              	
                Kentucky
                  Oil, MMH, and Besselink hereby covenant not to sue Memry under
                  35 U.S.C. §
                  256 for correction of inventorship of the ‘836, ‘637, and ‘709 Patents,
                  and United States Patent No. 7,398,831, as well as any
                  related patents that could have been brought in the
                  Lawsuit.

              


      

       

      
        	 	
                e.

              	
                This
                  covenant not to sue is binding on any officers, partners, agents,
                  employees, former employees, shareholders, owners, successors and
                  assigns
                  of Kentucky Oil, MMH, and Besselink. This covenant not to sue by
                  way of
                  illustration is binding on
                  USI,
                  van Moorleghem and George Shukov.

              


      

       

      
        	 	
                f.

              	
                This
                  covenant not to sue shall apply to any officers, partners, agents,
                  employees, former employees, shareholders, owners, successors and
                  assigns
                  of Memry acting for, by, or through Memry. This covenant not to
                  sue shall
                  also apply to any direct and/or indirect subsidiaries of Memry
                  and any
                  affiliated companies of Memry.

              


      

       

      
        	 	
                g.

              	
                This
                  covenant is in addition to, and not in substitution of, the previously
                  granted covenant not to sue annexed hereto as Attachment
                  II.

              


      

       

      
        	 	
                E.

              	
                No
                  Obligation to Maintain.
                  Memry has no obligation to USI
                  or
                  any of the Kentucky Oil
                  Parties to prosecute or maintain any intellectual
                  property.

              


      

       

      
        	 	
                F.

              	
                Transfers
                  As Is.
                  The assignments of Memry’s right to certain royalties under the
                  Development Agreement with STC made pursuant to this Settlement
                  Agreement
                  are made “as is” and without any representations or warranties whatsoever,
                  except as expressly set forth
                  herein.

              


      

       

      
        	 	
                G.

              	
                Dismissal
                  of the Lawsuit.
                  Concurrently with the execution hereof, the parties hereto shall
                  execute a
                  Stipulation of Dismissal pursuant to Rule 41(a)(1)(A)(ii) of the
                  Federal
                  Rules of Civil Procedure in the form of Attachment 1 hereto, dismissing
                  the Lawsuit with prejudice with each side to bear its own costs
                  and
                  attorneys’ fees and with all rights of appeal waived. Promptly upon the
                  execution and delivery of signed counterparts of this Settlement
                  Agreement, Kentucky Oil shall file the Stipulation of Dismissal
                  with the
                  Court in which the Lawsuit is pending.


              


      

       

      
        	 	
                H.

              	
                Mutual
                  Releases

              


      

       

      
        	 	
                a.

              	
                Release
                  of Memry.
                  The Kentucky Oil Parties and USI each
                  release Memry, and its officers, directors, shareholders, divisions,
                  business units, members, managers, parents, subsidiaries, affiliates,
                  predecessors, successors, representatives, agents, servants, employees,
                  attorneys, accountants, investors, and insurers (collectively,
                  the
                  “Memry-Related
                  Parties”),
                  of and from any and all known and unknown actions, causes of action,
                  claims, demands, damages, costs, losses, expenses, liabilities,
                  attorneys’
                  fees, and debts whatsoever, under statutory law or regulation,
                  at common
                  law or in equity of any jurisdiction, including, without limitation,
                  those
                  relating to the Lawsuit, that any of the Kentucky Oil
                  Parties or USI has, did have, or may have against any of the Memry-Related
                  Parties from the beginning of time to the date of this Settlement
                  Agreement (the “KOT
                  Released Claims”).
                  The
                  parties agree and acknowledge that this release extinguishes all
                  claims of
                  the Kentucky Oil Parties and USI against the Memry-Related Parties,
                  whether such claims are asserted by the Kentucky Oil Parties or
                  USI or by
                  their officers, directors, shareholders, divisions, business units,
                  members, managers, parents, subsidiaries, affiliates, predecessors,
                  successors, representatives, agents, servants, employees, attorneys,
                  accountants, investors, and
                  insurers.

              


      

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      


      
        	 	
                b.

              	
                Release
                  of Kentucky Oil Parties and USI.
                  Memry releases each of the Kentucky Oil
                  Parties, and USI, and their officers, directors, shareholders,
                  divisions,
                  business units, members, managers, parents, subsidiaries, affiliates,
                  predecessors, successors, representatives, agents, servants, employees,
                  attorneys, accountants, investors, and insurers (such persons and
                  entities, including the Kentucky Oil Parties being referred to
                  herein
                  collectively as the “Kentucky Oil-Related Parties”)
                  of
                  and from any and all known and unknown actions, causes of action,
                  claims,
                  demands, damages, costs, losses, expenses, liabilities, attorneys’ fees,
                  and debts whatsoever, under statutory law or regulation, at common
                  law or
                  in equity of any jurisdiction, including, without limitation, those
                  relating to the Lawsuit, that Memry has, did have, or may have
                  against any
                  of the Kentucky Oil-Related Parties from the beginning of time
                  to the date
                  of this Settlement Agreement (the “Memry
                  Released Claims”).
                  The parties agree and acknowledge that this release extinguishes
                  all
                  claims of Memry against the Kentucky Oil-Related-Parties, whether
                  such
                  claims are asserted by Memry or by its officers, directors, shareholders,
                  divisions, business units, members, managers, parents, subsidiaries,
                  affiliates, predecessors, successors, representatives, agents,
                  servants,
                  employees, attorneys, accountants, investors, and insurers.
                  

              


      

       

      
        	 	
                c.

              	
                Unknown
                  Claims.
                  As further consideration and inducement for this compromise settlement,
                  the parties each understand and agree that the releases contained
                  in this
                  Section H apply to all unknown and unanticipated claims or demands
                  of any
                  type whatsoever, and the parties expressly waive the benefits of
                  California Civil Code § 1542, which
                  states:

              


      

       

      A
        GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
        OR
        SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
        WHICH
        IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
        WITH
        THE DEBTOR.


      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

       

      The
        Kentucky Oil Parties and
        USI
        each abandon, release, waive, and relinquish all rights and benefits that
        any of
        them has or may have against any of the Memry-Related Parties under California
        Civil Code § 1542 with respect to the KOT Released Claims. Memry abandons,
        releases, waives, and relinquishes all rights and benefits that it has or
        may
        have against any of the Kentucky Oil-Related Parties under California Civil
        Code
§ 1542 with respect to the Memry Released Claims. The parties each acknowledge
        that they may discover facts in addition to, or different from, those that
        they
        now believe to be true, including but not limited to the nature or extent
        of
        their damages, but that it is nonetheless their intention to fully, finally,
        completely, and forever settle and release each, every, and all claims released
        in this Section H. Therefore, the releases given in this Section H shall
        remain
        in effect according to their express terms notwithstanding the discovery
        or
        existence of any such additional or different facts.

       

      
        	 	
                d.

              	
                Warranty
                  of No Transfer.
                  Each of the parties represents and warrants that it is the sole
                  owner of
                  the claims it is releasing in this Section H, that no other person
                  has any
                  interest in any of those claims, and that it has not sold, assigned,
                  or
                  otherwise transferred any interest in those claims to any third
                  party.
                  

              


      

       

      
        	 	
                e.

              	
                No
                  Release by AMT.
                  The releases set forth in this Section H do not release any claims
                  of any
                  sort by or against AMT, N.V. (“AMT”), except for those claims that
                  originated as claims of the Kentucky Oil Parties and/or USI that
                  may have
                  been transferred or are subsequently transferred to AMT. Nothing
                  in this
                  Settlement Agreement in any way limits or nullifies any prior releases
                  granted by AMT and/or van Moorleghem.


              


      

       

      
        	 	
                f.

              	
                van
                  Moorleghem Release.
                  The parties to this Settlement Agreement agree and acknowledge
                  the
                  separate Settlement Agreement and Mutual Release, in the form of
                  Attachment III (the “Mutual Release and Agreement”), being executed and
                  delivered by van Moorleghem, AMT and Memry in connection
                  herewith.

              


      

       

      
        	 	
                I.

              	
                Representations
                  and Warranties

              


      

       

      
        	 	
                a.

              	
                Memry
                  Representations and Warranties.
                  Memry hereby represents and warrants to the Kentucky Oil Parties
                  and USI
                  as follows:

              


      

       

      
        	 	
                i.

              	
                Memry
                  is a legal entity duly organized, validly existing and in good
                  standing
                  under the laws of its jurisdiction of organization and has all
                  requisite
                  corporate or similar power and authority to own, lease and operate
                  its
                  properties and assets and to carry on its business as presently
                  conducted.

              


      

       

      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      


      
        	 	
                ii.

              	
                Memry
                  has requisite corporate power and authority to enter into this
                  Settlement
                  Agreement and to consummate the transactions contemplated hereby.
                  The
                  execution and delivery of this Settlement Agreement and the consummation
                  of the transactions contemplated hereby have been duly and validly
                  authorized on behalf of Memry and no other corporate proceedings
                  on the
                  part of Memry are necessary to authorize the consummation of the
                  transactions contemplated hereby. This Settlement Agreement has
                  been duly
                  and validly executed and delivered by Memry and, assuming this
                  Settlement
                  Agreement constitutes the valid and binding agreement of each of
                  the
                  Kentucky Oil Parties, constitutes the valid and binding agreement
                  of
                  Memry, enforceable against Memry in accordance with its terms,
                  except that
                  (y) such enforcement may be subject to applicable bankruptcy, insolvency,
                  reorganization, moratorium or other similar laws, now or hereafter
                  in
                  effect, relating to creditors’ rights generally and (z) equitable remedies
                  of specific performance and injunctive and other forms of equitable
                  relief
                  may be subject to equitable defenses and to the discretion of the
                  court
                  before which any proceeding therefor may be brought (the “Bankruptcy
                  and Equity Exception”).

              


      

       

      
        	 	
                iii.

              	
                No
                  authorization, consent or approval of, or filing with, any United
                  States
                  or foreign governmental or regulatory agency, commission, court,
                  body,
                  entity or authority (each, a “Governmental
                  Entity”)
                  is necessary, under applicable law, for the consummation by Memry
                  of the
                  transactions contemplated by this Settlement Agreement, except
                  for filings
                  required to be made under U.S. securities laws after the Effective
                  Time.

              


      

       

      
        	 	
                iv.

              	
                The
                  execution and delivery by Memry of this Settlement Agreement does
                  not, and
                  the consummation of the transactions contemplated hereby and compliance
                  by
                  Memry with the provisions of this Settlement Agreement will not,
                  conflict
                  with or violate any applicable
                  laws.

              


      

       

      
        	 	
                b.

              	
                The
                  Kentucky Oil Parties,
                  USI and van Moorleghem,
                  jointly and severally, hereby represent to Memry as
                  follows:

              


      

       

      
        	 	
                i.

              	
                USI
                  and each of the Kentucky Oil Parties that is not a natural person
                  is a
                  legal entity duly organized, validly existing and in good standing
                  under
                  the laws of its jurisdiction of organization and has all requisite
                  corporate or similar power and authority to own, lease and operate
                  its
                  properties and assets and to carry on its business as presently
                  conducted.

              


      

       

      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

      

       

      
        	 	
                ii.

              	
                USI
                  and each of the Kentucky Oil Parties that is not a natural person
                  has
                  requisite power and authority to enter into this Settlement Agreement
                  and
                  to consummate the transactions contemplated hereby. The execution
                  and
                  delivery of this Settlement Agreement and the consummation of the
                  transactions contemplated hereby have been duly and validly authorized
                  on
                  behalf of USI and each of the Kentucky Oil Parties that is not
                  a natural
                  person and no other corporate or other proceedings on the part
                  of any such
                  Kentucky Oil Party are necessary to authorize the consummation
                  of the
                  transactions contemplated hereby. This Settlement Agreement has
                  been duly
                  and validly executed and delivered by each Kentucky Oil Party and,
                  assuming this Settlement Agreement constitutes the valid and binding
                  agreement of Memry, constitutes the valid and binding agreement
                  of USI and
                  each Kentucky Oil Party, enforceable against USI and each Kentucky
                  Oil
                  Party in accordance with its terms, except for the Bankruptcy and
                  Equity
                  Exception.

              


      

       

      
        	 	
                iii.

              	
                No
                  authorization, consent or approval of, or filing with, any Governmental
                  Entity is necessary, under applicable law, for the consummation
                  by USI and
                  each of the Kentucky Oil Parties of the transactions contemplated
                  by this
                  Settlement Agreement.

              


      

       

      
        	 	
                iv.

              	
                The
                  execution and delivery by USI, van Moorleghem and each of the Kentucky
                  Oil
                  Parties of this Settlement Agreement does not, and the consummation
                  of the
                  transactions contemplated hereby and compliance by USI, van Moorleghem
                  and
                  each of the Kentucky Oil Parties with the provisions of this Settlement
                  Agreement will not, conflict with or violate any applicable
                  laws.

              


      

       

      
        	 	
                v.

              	
                Kentucky
                  Oil is the sole successor in interest to MMH for all of its rights,
                  title
                  and interest in the Secrecy Agreement and to USI for all of its
                  rights,
                  title and interest in the Collaboration
                  Agreement.

              


      

       

      
        	 	
                vi.

              	
                van
                  Moorleghem is not the principal executive officer of AMT, nor does
                  he own
                  or control a majority of the voting interests
                  therein.

              


      

       

      
        	 	
                J.

              	
                Other
                  Provisions

              


      

       

      
        	 	
                a.

              	
                Confidentiality.
                  The parties agree to keep this Settlement Agreement and its terms
                  strictly
                  confidential unless: (a) asserting a claim or defense arising out
                  of this
                  Settlement Agreement or related to the Lawsuit in any suit or proceeding;
                  (b) ordered to do so by a court of competent jurisdiction; (c)
                  served with
                  a subpoena or other request for discovery, provided that the party
                  served
                  first gives prompt notice to the other parties so the other parties
                  may
                  have an opportunity to contest the subpoena or discovery request;
                  or (d)
                  any of the substance of this Settlement Agreement is necessary
                  to be
                  disclosed to an agency or regulatory body, or to an insurer, financial
                  advisor, investor, lawyer, or accountant for any party or affiliate.
                  However, nothing in this Settlement Agreement prohibits a party
                  from
                  stating that the claims in the Lawsuit between the parties to this
                  Settlement Agreement have been settled and that the terms of the
                  settlement are confidential. Notwithstanding the foregoing, however,
                  (i)
                  Memry may disclose this Settlement Agreement to Getters and its
                  counsel,
                  (ii) either
                  party may
                  announce this Settlement Agreement in a press release and a Form
                  8-K, and
                  may file a copy hereof as an exhibit to said Form 8-K; and (iii)
                  any
                  party
                  can freely disclose any information
                  relating to this Settlement Agreement that has already been
                  publicly disclosed by any other
                  party.

              


      

       

      
        
          
          

        

        
          8

          
            

          

        

        
          
          

        

      


      
        	 	
                b.

              	
                No
                  Admission.
                  This Agreement is a compromise of disputed claims. It is not and
                  shall not
                  be interpreted as or deemed to be an admission of liability by
                  any party
                  to this Settlement Agreement. 

              


      

       

      
        	 	
                c.

              	
                No
                  Continuing Relationship.
                  The Kentucky Oil Parties each acknowledge that none of them has
                  any
                  present relationship whatsoever with Memry other than as set forth
                  in this
                  Settlement Agreement, although AMT currently has a contractual
                  relationship with Memry. The Kentucky Oil Parties will not make
                  any
                  representation to any third party that is inconsistent with this
                  acknowledgment. If any of the Kentucky Oil Parties make any representation
                  to third parties that is contrary to this paragraph, Memry shall
                  be
                  entitled to injunctive relief and specific performance of this
                  paragraph.

              


      

       

      
        	 	
                d.

              	
                Indemnification

              


      

       

      
        	 	
                i.

              	
                Kentucky
                  Oil will defend, indemnify, and hold harmless Memry and all of
                  the
                  Memry-Related Parties and all successors, assigns, end-users, and
                  customers of each, for: (1) the breach of any covenant, warranty
                  or
                  representation made by any Kentucky Oil Party, USI or van Moorleghem
                  in
                  this Settlement Agreement or any agreement entered into in connection
                  herewith; or (2) any claims against them arising from or relating
                  to
                  actual or alleged breach by the Kentucky Oil-Related Parties of
                  the
                  Development or License Agreements following the assignment of rights
                  as
                  contemplated under this Agreement. Pursuant to this indemnification,
                  the
                  indemnitees are entitled to use counsel of their
                  choice.

              


      

       

      
        	 	
                ii.

              	
                Memry
                  will defend, indemnify, and hold harmless Kentucky Oil and all
                  of the
                  Kentucky Oil-Related Parties and all successors, assigns, end-users,
                  and
                  customers of each, for the breach of any covenant, warranty or
                  representation made by Memry in the Settlement Agreement. Pursuant
                  to this
                  indemnification, the indemnitees are entitled to use counsel of
                  their
                  choice.

              


      

       

      
        	 	
                e.

              	
                Authority.
                  Each party warrants and represents to and in favor of each of the
                  other
                  parties that the person executing this Settlement Agreement on
                  its behalf
                  has the full power and authority to bind it to each and every provision
                  of
                  the agreement.

              


      

       

      
        
          
          

        

        
          9

          
            

          

        

        
          
          

        

      


      
        	 	
                f.

              	
                Notices.
                  All notices, requests, and demands made under this Settlement Agreement:
                  (a) shall be in writing and made to the parties and their counsel
                  at the
                  address indicated below, or to such other address as a party may
                  designate
                  by prior written notice to all of the others in accordance with
                  this
                  provision; and (b) shall be deemed to have been given or made (i)
                  if
                  delivered in person, immediately upon delivery, (ii) if by email
                  or
                  facsimile transmission, immediately upon sending and upon confirmation
                  of
                  receipt, provided that on that day or the following day a copy
                  is also
                  sent by first class mail, (iii) if by nationally recognized overnight
                  courier service with instructions to deliver the next business
                  day, one
                  business day after; and (iv) if by certified mail, return receipt
                  requested, five (5) days after
                  mailing.

              


      

       

      If
        to Memry:

       

      Memry
        Corporation

      Attn.
        Robert Belcher

      3
        Berkshire Boulevard

      Bethel,
        CT 06801

       

      with
        a
        copy to:

       

      David
        I.
        Albin, Esq.

      Finn,
        Dixon & Herling, LLP

      177
        Broad
        Street, 15th
        Floor

      Stamford,
        Connecticut 06901-2048;


      and
        

       

      William
        J. Cass, Esq.

      Cantor
        Colburn LLP

      20
        Church
        Street

      Hartford,
        CT 06103

       

      If
        to the
        Kentucky Oil Parties:

       

      Peter
        Besselink

      Kentucky
        Oil Technology, N.V. 

      Gronausetraat
        1220

      7534
        AT
        Enschede

      The
        Netherlands

      Facsimile
        No.: 011 31 53461 1730

      Email:
        memorymh@home.nl

       

      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

      

       

      and:

       

      Wilfried
        van Moorleghem

      Dr.
        Wilfried van Moorleghem

      Industrieweg
        1113

      B3540
        Herk

      Belgium

      Facsimile
        No: 011 32 13553514

      Email:
        wilfried_vanmoorleghem@yahoo.com

       

      with
        a
        copy to:

       

      Michael
        H. Bierman, Esq.

      Jeffrey
        D. Wexler, Esq.

      Luce,
        Forward, Hamilton & Scripps LLP

      601
        S.
        Figueroa Street, Suite 3900

      Los
        Angeles, California 90017

      Facsimile
        No.: (213) 892-7731

      Email:
        mbierman@luce.com / jwexler@luce.com

       

      
        	 	
                K.

              	
                Interpretation.
                  This Settlement Agreement shall be construed without regard to
                  the party
                  or parties responsible for the preparation of the same and shall
                  be deemed
                  to have been prepared jointly by the parties hereto. If any ambiguity
                  or
                  uncertainty exists herein, such ambiguity or uncertainty shall
                  not be
                  interpreted against any party hereto, but rather, shall be interpreted
                  according to the application of other rules of contract interpretation.
                  The parties acknowledge that this Settlement Agreement is in the
                  English
                  language and that the English language will govern its
                  interpretation.

              


      

       

      
        	 	
                L.

              	
                Governing
                  Law.
                  This Settlement Agreement shall be construed in accordance with
                  California
                  law, without regard to its internal choice-of-law
                  rules.

              


      

       

      
        	 	
                M.

              	
                Enforcement.
                  If any action is brought for breach of or to enforce this Settlement
                  Agreement, it shall be brought in the United States District Court
                  for the
                  Northern District of California,
                  unless that court has no jurisdiction over the action, in which
                  case it
                  shall be brought in the Superior Court of the State of California
                  for the
                  Counties of San Francisco or Santa Clara.
                  

              


      

       

      
        	 	
                N.

              	
                Attorneys’
                  Fees.
                  In any action for breach of or to enforce this Settlement Agreement,
                  the
                  prevailing party will be entitled to reasonable attorneys’ fees, expenses,
                  and costs. 

              


      

       

      
        	 	
                O.

              	
                Counterparts.
                  This Settlement Agreement may be signed in counterparts, and a
                  copy of the
                  fully signed Settlement Agreement may be used in evidence as if
                  it were
                  the original.

              


      

       

      
        	 	
                P.

              	
                Integration.
                  This Settlement Agreement is the entire agreement between the parties
                  with
                  respect to its subject matter and supersedes all prior or contemporaneous
                  oral or written negotiations or agreements with regard to the matters
                  set
                  forth in it. The parties are not entering into this Settlement
                  Agreement
                  on the basis of any promise, statement, or representation, express
                  or
                  implied, that is not expressly set forth in it.


              


      

       

      
        
          
          

        

        
          11

          
            

          

        

        
          
          

        

      


      
        	 	
                Q.

              	
                Independent
                  Counsel.
                  Each party acknowledges that it has been represented by independent
                  counsel of its own choice throughout all negotiations pertaining
                  to its
                  execution of this Settlement Agreement. Each party further acknowledges
                  that it has received and relied upon advice from its independent
                  counsel
                  with respect to: (a) the meaning and effect of each of the terms
                  and
                  conditions of this Settlement Agreement including, but not limited
                  to, the
                  releases and the waiver of rights under California Civil Code § 1542; and
                  (b) the advisability of entering into this Settlement
                  Agreement.

              


      

       

      
        	 	
                R.

              	
                Independent
                  Investigation by Parties.
                  Each party acknowledges that it has fully investigated the subject
                  matter
                  of this Settlement Agreement and that it is entering into this
                  Settlement
                  Agreement voluntarily, knowingly, and of its own free
                  will.

              


      

       

      
        	 	
                S.

              	
                Successors;
                  Assignment.
                  This Settlement Agreement shall inure to the benefit of and shall
                  be
                  binding upon the heirs, executors, administrators, assigns, and
                  successors
                  in interest of each of the parties entering into it. Any party’s rights
                  hereunder may be assigned to any party succeeding to all or any
                  substantial part of its business. Each party agrees not to use
                  an
                  assignment to evade or avoid its responsibilities
                  hereunder.

              


      

       

      
        	 	
                T.

              	
                Modification
                  of Agreement.
                  No supplement, modification, or amendment to this Settlement Agreement
                  shall be binding unless executed in writing by all of the parties
                  to
                  it.

              


      

       

      
        	 	
                U.

              	
                Severability.
                  If any of the provisions of this Settlement Agreement become invalid,
                  illegal or unenforceable in any respect, the validity, legality
                  and
                  enforceability of the remaining provisions hereof shall not in
                  any way be
                  impacted.

              


      

       

      
        
          
          

        

        
          12

          
            

          

        

        
          
          

        

      


      IN
        WITNESS WHEREOF, the parties hereto have caused this Settlement Agreement
        to be
        executed and delivered by their duly authorized representatives.

       

      
        	
                DATED:
                  August 14, 2008

              	 	
                KENTUCKY
                  OIL TECHNOLOGY, N.V.

              
	 	 	 
	 	 	
                            /s/
                  Peter Besselink

              
	 	 	
                By:
                  Peter Besselink

              
	 	 	
                Title:
                  Managing Director

              
	 	 	 
	
                DATED:
                  August 14, 2008

              	 	
                MEMORY
                  METAL HOLLAND, B.V.

              
	 	 	 
	 	 	
                            /s/
                  Peter Besselink

              
	 	 	
                By:
                  Peter Besselink

              
	 	 	
                Title:
                  Managing Director

              
	 	 	 
	
                DATED:
                  August 14, 2008

              	 	
                PETER
                  BESSELINK

              
	 	 	 
	 	 	
                            /s/
                  Peter Besselink

              
	 	 	
                Peter
                  Besselink

              
	 	 	 
	
                DATED:
                  August 14, 2008

              	 	
                WILFRIED
                  VAN MOORLEGHEM

              
	 	 	 
	 	 	
                            /s/
                  Dr. Wilfried van Moorleghem

              
	 	 	
                Dr.
                  Wilfried van Moorleghem

              
	 	 	 
	 	 	 
	
                DATED:
                  August 14, 2008

              	 	
                UNITED
                  STENTING, INC.

              
	 	 	 
	 	 	
                            /s/
                  Peter Vanderbruggen

              
	 	 	
                By:
                  Peter Vanderbruggen

              
	 	 	
                Title:
                  Managing Director

              


      

       

      
        
          
          

        

        
          13

          
            

          

        

        
          
          

        

      

      


      
        	
                DATED:
                  August 14, 2008

              	 	
                MEMRY
                  CORPORATION

              
	 	 	 
	 	 	
                            /s/
                  Robert P. Belcher

              
	 	 	
                By:
                  Robert P. Belcher

              
	 	 	
                Title:
                  Chief Executive Officer

              


      


      
        
          
          

        

        
          14

          
            

          

        

        
          
          

        

      

      


      APPROVED
        AS TO FORM: 

      


      
        	
                DATED:
                  August 13, 2008

              	LUCE,
                FORWARD, HAMILTON & SCRIPPS LLP
	 	 	 
	 	
                By:

              	
                            /s/
                  Michael H. Bierman

              
	 	 	
                Michael
                  H. Bierman

              
	 	 	
                Attorneys
                  for Defendants Peter Besselink and

              
	 	 	
                Memory
                  Metal Holland, B.V. and Defendant

              
	 	 	
                and
                  Counterclaimant Kentucky Oil

              
	 	 	
                Technology,
                  N.V.

              
	 	 	 
	 	 	 
	
                DATED:
                  August 14, 2008

              	CANTOR
                COLBURN LLP
	 	 	 
	 	
                By:

              	
                            /s/
                  William J. Cass

              
	 	 	
                William
                  J. Cass

              
	 	 	
                Attorneys
                  for Plaintiff and Counterdefendant

              
	 	 	
                Memry
                  Corporation

              


      

       

      
        
          
          

        

        
          15