**Exhibit 10.23**

 

**AMENDED AND RESTATED**

**EMPLOYMENT AGREEMENT**

 

This Amended and Restated Employment Agreement, dated as of the 21st day of July 2004, between **Robert P. Belcher** (the “Executive”) and **Memry Corporation**, a Delaware corporation (the “Company”). 

 

WITNESSETH, 

 

WHEREAS, the Company and the Executiveentered into an Employment Agreement on September 1, 2001, which superceded and replaced any prior written or verbal agreements; 

 

WHEREAS, the Company and the Executive desire to amend and restate the employment agreement on the terms and conditions set forth below (this“Agreement”); 

 

WHEREAS, in consideration of thecommencement of the performance described in this Agreement, and effective as of the date hereof, the Company shall issue to the Executive an option to acquire 100,000 shares of the common stock of the Company pursuant to the terms of theCompany’s Amended and Restated 1993 Long-Term Incentive Plan, which options shall (1) be incentive stock options to the extent permitted under the Internal Revenue Code of 1986, as amended, (2) have an exercise price equal to the fair marketvalue of the common stock on the date hereof, and (3) vest equally in annual installments over four years beginning on the first anniversary of the date hereof. 

 

NOW, THEREFORE, in consideration of the premises and of the covenants and agreements set forth herein, the parties agree as follows: 

 

1. **Employment and Duties**. 

 

(a) The Company hereby agrees to employ the Executive, and the Executivehereby accepts employment, upon the terms and conditions set forth herein. During the period during which he is employed hereunder (the “Period of Employment”), the Executive shall diligently and faithfully serve the Company in thecapacity of Vice Chairman, Senior Vice President, Finance and Administration, Chief Financial Officer and Corporate Secretary or in such other and/or lesser executive capacity or capacities as the Board of Directors and the Executive may, from timeto time, agree. 

 

(b) During the term hereof, the Executiveshall, at the request of the Company, serve as an officer and/or director of direct and indirect subsidiaries, and other affiliates, of the Company as the Company, acting through its Board of Directors, shall request from time to time. 

 

(c) The Executive shall devote his best efforts and substantially all ofhis business time, services and attention to the advancement of the Company’s business and interests. The restrictions in this Section 1 shall in no way prevent the Executive from (except as 

 

set forth in the immediately succeeding sentence) pursuing other activities, so long as all of such other activities do not, in the aggregate, materiallyinterfere with the Executive’s duties hereunder (including his obligation to devote substantially all of his business time, services and attention to the Company). Notwithstanding the foregoing, however, the Executive shall not accept anyoutside directorships without the prior consent of the Company’s Board of Directors. 

 

(d) The Executive shall, at all times during the Period of Employment, diligently and faithfully carry out the policies, programs and directions of the Board of Directors of the Company. The Executive shall complywith the directions and instructions made or given by or under the authority of the Company’s Chief Executive Officer and/or its Board of Directors and whenever requested to do so shall give an account of all transactions, matters and thingsrelated to the Company and its affiliates and their affairs with which the Executive is entrusted. 

 

2. **Term**. The initial term of this Agreement shall commence on the date hereof, and shall terminate on August 31, 2005. Thereafter, the termof this Agreement shall be automatically renewed for successive one-year periods, each commencing on September 1 in the appropriate year and terminating on August 31 in the subsequent year, unless either party notifies the other in writing of suchparty’s intention not to renew at least ninety (90) days prior to the date on which the term of this Agreement would otherwise terminate. The Initial Term and such other periods for which the term hereof has been extended as aforesaid iscollectively referred to herein as the “Term.” In the event the Company elects not to renew this Agreement at the end of any Term, then the Company shall pay to the Executive (i) the Executive’s base salary for a period of fifteen(15) months following termination of this Agreement, as and when the same would otherwise be due, and (ii) an amount equal to 125% of the Executive’s target bonus described in Section 3(b), as then in effect, in one lump sum; provided, however,that such payment shall not be paid by the Company if such non-renewal is “for cause” (as defined below). 

 

3. **Compensation**. In consideration of the services rendered and to be rendered by the Executive, the Company agrees to compensate theExecutive as follows: 

 

(a) From the date hereof the Companyshall pay to the Executive an annual base salary of $214,000, payable in equal installments every two weeks. The Executive’s base salary may be increased from time to time by the Board in accordance with normal business practices of theCompany. 

 

(b) The Executive shall also be entitled to receiveadditional compensation in the form of an annual target bonus in an amount equal to 50% of the Executive’s annual base salary and/or stock option grants determined by and in the sole discretion of the Board of Directors of the Company. Suchtarget amount is based upon the Executive meeting all personal and Company performance goals and objectives. Such grants may be made pursuant to any bonus and/or incentive compensation programs that may be established by the Company, includingwithout limitation the Company’s current incentive plans; provided, however, that nothing set forth in this sentence will in any way limit the Board of Directors discretion to approve or reject any bonus that the Executive would otherwise bedue under any such plans. 

 

(c) The Executive shall be entitled to an automobile allowance of $500 per month, to be paid inaccordance with the Company’s policy for paying automobile allowances as in effect from time to time. 

 

(d) The Executive shall also be entitled to receive up to $15,000 per year from the Company towards retirement and/or deferred compensation benefits. Thisamount may be invested in any manner as may be selected by the Executive. 

 

(e) The Executive shall be entitled to other fringe benefits comparable to the benefits afforded to other executive employees of the Company, including but not limited to reasonable sick leave and coverage under anyhealth, dental, accident, hospitalization, disability, retirement, life insurance, 401(k), and annuity plans, programs or policies maintained by the Company. In addition, and without limiting the foregoing, the Company shall provide the Executivewith twenty working days of vacation per calendar year, no more than thirty of which (in the aggregate) may be carried over from one year to the next. 

 

(f) The Executive shall be entitled to reimbursement, in accordance with Company policy, of all reasonable out-of-pocket expenses which he incurs onbehalf of the Company in the course of performing his duties hereunder, subject to furnishing appropriate documentation of such expenses to the Company’s Chief Executive Officer. 

 

4. **Covenant Not to Compete; Nonsolicitation**. 

 

(a) Except as specifically set forth in this Section 4, during the Period of Employment, the Executive will not engage,directly or indirectly, anywhere in the United States (including its territories, possessions and commonwealths) or Canada in any business which competes or could reasonably be expected to compete with the Company and/or its affiliates and, for suchtime after the Period of Employment as the Company is making severance payments to the Executive, any business which competes or could reasonably be expected to compete with the Company and/or its affiliates as of the date of termination of thePeriod of Employment; provided, however, that (i) the ownership by the Executive of less than 2% of the outstanding stock of any publicly traded corporation shall not be deemed solely by reason thereof to cause the Executive to be engaged in anybusinesses being conducted by such publicly traded corporation; and (ii) the Executive, at his sole discretion, may, by written notice to the Company, terminate the Company’s obligation to make severance payments to the Executive, and upon thetermination of such payments, the Executive’s non-competition obligations pursuant to this Section 4 shall terminate. If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 4(a) is invalidor unenforceable, the parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replaceany invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as somodified after the expiration of the time within which the judgment may be appealed. 

 

(b) During the Period of Employment and for a period of two years thereafter, the Executive will not, directly or indirectly, either for himself or for any other person or entity (i) solicit (A) any employee of theCompany or any affiliate of the Company to 

 

terminate his or her employment with the Company or such affiliate during his or her employment with the Company or such affiliate or (B) any former employeeof the Company or an affiliate of the Company for a period of one year after such individual terminates his or his employment with the Company or such affiliate, (ii) solicit any customer or client of the Company or any such affiliate (or anyprospective customer or client of the Company or such affiliate) as of the termination of the Period of Employment to terminate its relationship with the Company or such affiliate, or do business with any third parties, or (iii) take any action thatis reasonably likely to cause injury to the relationships between the Company or any such affiliate or any of their respective employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other businessassociate of the Company or any such affiliate as such relationship relates to the Company’s or such affiliate’s conduct of its business. 

 

5. **Covenant Not to Disclose Information**. The Executive agrees that during the Period of Employment and thereafter, he will not use ordisclose, other than to another employee of the Company, qualified by the Company to receive that information in the normal course of business, any confidential information or trade secrets of the Company or any affiliate of the Company which weremade known to him by the Company, its officers or employees or affiliates, or learned by him while in the Company’s employ, without the prior written consent of the Company, and that upon termination of his employment for any reason, he willpromptly return to the Company any and all properties, records, figures, calculations, letters, papers, drawings, schematics or copies thereof or other confidential information of the Company and its affiliates of any type or description. It isunderstood that the term “trade secrets” as used in this Agreement is deemed to include, without limitation, lists of the Company’s and its affiliates’ respective customers, information relating to their practices, know-how,processes and inventions, and any other information of whatever nature which gives the Company or any affiliate an opportunity to obtain an advantage over its competitors who do not have access to such information. 

 

6. **Remedy at Law Inadequate**. The Executive acknowledges thatany remedy at law for breach of any of the restrictive covenants (Sections 4 and 5) contained in this Agreement would be inadequate and the Company shall be entitled to injunctive relief in the event of any such breach. 

 

7. **Inventions and Improvements**. With respect to any and allinventions (as defined in Section 7(e) below) made or conceived by the Executive, whether or not during his hours of employment, either solely or jointly with others, during the Period of Employment, without additional consideration: 

 

(a) The Executive shall promptly inform the Company of any such invention.

 

(b) Any such invention, whether patentable or not, shall bethe property of the Company, and the Executive hereby assigns and agrees to assign to the Company all his rights to any such invention, and to any United States and/or foreign letters patent granted upon any such invention or any applicationtherefor. 

 

(c) The Executive shall apply, at theCompany’s request and expense, for United States and/or foreign letters patent either in the Executive’s name or otherwise as the Company may desire. 

 

(d) The Executive shall acknowledge and deliver promptly to the Company, without charge to the Companybut at its expense, all sketches, drawings, models and figures and other information and shall perform such other acts, such as giving testimony in support of his inventorship, as may be necessary in the opinion of the Company to obtain and maintainUnited States and/or foreign letters patent and to vest the entire right and title thereto in the Company. 

 

(e) For purposes of this Section, the term “invention” shall be deemed to mean any discovery, concept or idea (whether patentable or not),including but not limited to processes, methods, formulas, techniques, hardware developments and software developments, as well as improvements thereof or know-how related thereto, (i) concerning any present or prospective activities of the Companyand its affiliates and (ii) (A) which the Executive becomes acquainted with as a result of his employment by the Company, (B) which results from any work he may do for, or at the request of, the Company or any of its affiliates, (C) which relate tothe Company’s or any affiliates’ business or actual or demonstrably anticipated research and development, or (D) which are developed in any part by use of the Company’s or any such affiliates’ equipment, supplies, facilities ortrade secrets. 

 

The parties hereto agree that the covenants and agreementscontained in this Section 7 are, taken as a whole, reasonable in their scope and duration, and no party shall raise any issue of the reasonableness of the scope or duration of any such covenants in any proceeding to enforce any such covenants.

 

8. **Termination of Employment**. 

 

(a) The Executive’s Period of Employment may not be terminated prior tothe expiration of the Term except in accordance with the provisions of this Section 8. 

 

(b) The Executive’s Period of Employment may be terminated by the Company for cause. For purposes of this Agreement, “for cause” means that termination occurs in connection with a determination, made ata meeting of the Board of Directors at which the Executive (and, at the Executive’s option, his counsel) shall have had a right to participate, that the Executive has (i) committed an act of gross negligence or willful misconduct, or a grossdereliction of duty, that has materially and adversely affected the overall performance of his duties hereunder; (ii) committed fraud upon the Company in his capacity as an employee hereunder; (iii) been convicted of, or pled guilty (or nolocontendere) to, a felony that the Board of Directors, acting in good faith, determines is or would reasonably be expected to have a material adverse effect upon the business, operations, reputation, integrity, financial condition or prospects of theCompany; (iv) any material breach by the Executive of the terms hereof; (v) failure to follow instructions from a person authorized to give them pursuant to Section 1(d) above that is lawful and not inconsistent with the terms hereof; (vi) theExecutive’s habitual drunkenness or habitual substance abuse; or (vii) civil or criminal violation of any state or federal government statute or regulation, or of any state or federal law relating to the workplace environment (including withoutlimitation laws relating to sexual harassment or age, sex or other prohibited discrimination), or any violation of any Company policy adopted in respect of any of the foregoing. “For cause” termination must be accompanied by a writtennotice to that effect. If the Executive is terminated for cause, the Executive shall be paid through the date of his termination. 

 

(c) If the Executive dies, the Period of Employment shall terminate effective at the time of his death;provided, however, that such termination shall not result in the loss of any benefit or rights which the Executive may have accrued through the date of his death. If the Period of Employment is terminated prior to the expiration of the Term due tothe Executive’s death, the Company shall make a severance payment to the Executive or his legal representatives equal to the Executive’s regular salary payments through the end of the month in which such death occurs. In addition, theCompany shall make a severance payment to the Executive or his legal representative equal to the Executive’s target bonus described in Section 3(b), pro rated for the portion of such fiscal year completed prior to the Executive’s death;provided, however, that such pro rated portion of the Executive’s target bonus shall be paid to the Executive following the completion of such fiscal year at the time similar bonuses are paid to other employees of the Company. 

 

(d) If the Executive becomes disabled, the Period of Employment may beterminated, at the Company’s option, at the end of the calendar month during which his disability is determined; provided, however, that such termination shall not result in the loss of any benefits or rights which the Executive may haveaccrued through the date of his disability. If the Period of Employment is terminated prior to the expiration of the Term due to the Executive’s disability, the Company shall make a severance payment to the Executive or his legal representativeequal to the Executive’s regular salary payments for a period of six (6) months from the date of such termination or, if sooner, until payments begin under any disability insurance policy maintained by the Company for the benefit of theExecutive. For the purposes of this section, the definition of “disability” shall be the same as the definition of a “permanent disability” contained in any long-term disability insurance policy maintained by the Company ineffect at the time of the purported disability, or last in effect, if no policy is then in effect. 

 

(e) If the Executive’s Period of Employment is terminated by the Executive for “Good Reason,” as hereinafter defined, or is terminated bythe Company without cause (and the Company may terminate the Period of Employment without cause at any time) other than at the end of the Term, then, in addition to the other rights to which the Executive is entitled upon a termination as providedfor herein, the Executive shall also be entitled to a lump-sum payment equal to the sum of (i) 125% of the Executive’s annual base salary, at the rate of salary in effect immediately prior to the effective date of such termination (withoutregard to any purported or attempted reduction of such rate by the Company), plus (ii) 125% of the Executive’s target bonus for the fiscal year during which termination occurs. For purposes of this Agreement, the term “Good Reason”shall mean: (i) the failure by the Company to observe or comply with any of the provisions of this Agreement if such failure has not been cured within ten (10) days after written notice thereof has been given by the Executive to the Company; or (ii)at the election of the Executive, upon a Change in Control of the Company, as defined in Section 10(f) (which election can be made at any time upon thirty (30) days’ prior written notice given within two (2) years following the date on whichthe Change in Control of the Company occurred) if, subsequent to such Change in Control, there is a material diminution in the position, duties and/or responsibilities of the Executive; or (iii) the relocation of the Executive’s principal placeof business to a location more than sixty (60) miles from both (A) Bethel, Connecticut and (B) Easton, Connecticut, without the Executive’s prior consent. Further, in the event of a termination pursuant to this Section 8(e), or pursuant toSection 8(c) or Section 8(d) above, to the extent allowable under the provisions of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder, and the plans pursuant to which the same were 

 

granted, all incentive and non-qualified stock options then held by the Executive still subject to any vesting requirements shall have such vestingrequirements terminated (such that all such options are then immediately exercisable). 

 

9. **Effect of Termination**. Upon termination of the Executive’s employment for any reason whatsoever, all rights and obligations of the parties under this Agreement shall cease, except that theExecutive shall continue to be bound by the covenants set forth in Sections 4, 5, 6 and 7 hereof, and the Company shall be bound to pay to the Executive accrued compensation, including salary and other benefits, to the date of termination and anyseverance payments which may be owed under the provisions of Section 8 hereof. 

 

10. **Miscellaneous**. 

 

(a) This Agreement may not be assigned by the Executive. The Company may assign this Agreement in connection with a Sale of the Company. 

 

(b) In the event that any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, such provision shallbe, and shall be deemed to be, modified so as to become valid and enforceable, and the remaining provisions of this Agreement shall not be affected. 

 

(c) This Agreement shall be governed by and construed in accordance with the laws of the State of Connecticut. 

 

(d) No modification of this Agreement shall be effective unless in a writingexecuted by both parties. 

 

(e) This Agreement constitutes theentire agreement of the parties with respect to the subject matter hereof, and supercedes all prior agreements, representations and promises by either party or between the parties, including without limitation, the Letter Agreement, notwithstandingany provisions therein which state that certain provisions shall survive the termination of the Letter Agreement. 

 

(f) For purposes of this Agreement, “Change in Control of the Company” shall mean: (i) any merger or consolidation or other corporatereorganization of the Company in which the Company is not the surviving entity; or (ii) any sale of all or substantially all of the Company’s assets, in either a single transaction or a series of transactions; or (iii) a liquidation of all orsubstantially all of the Company’s assets; or (iv) a change within one twelve-month period of a majority of the directors constituting the Company’s Board of Directors at the beginning of such twelve-month period; or (v) if a single personor entity, or a related group of persons or entities, at any time acquires beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended) of 25% or more of the Company’s outstandingvoting securities; unless, (x) with respect to any event described in clauses (i) through (v), the Executive agrees in writing, prior to the consummation of the event giving rise to the Change in Control of the Company, that such event or eventsdoes not for purposes of this Agreement constitute a Change in Control of the Company or, as a director, votes in favor of the matter that would otherwise cause the Change in Control of the Company or, (y) with respect to clause (iv), the change ofdirectors is approved by the Board of Directors as constituted prior to such change. 

 

IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the date first above written.

 

MEMRY CORPORATION
By 
/s/ James G. Binch
  
Name:
 
James G. Binch
  
Title:
 
President and CEO
By: 
/s/ Robert P. Belcher
  
Robert P. Belcher