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ROGEN v. MEMRY CORP.

May 23, 1995

NEIL E. ROGEN, Plaintiff, -v.- MEMRY CORPORATION, Defendant,


The opinion of the court was delivered by: DEBORAH A. BATTS

 DEBORAH A. BATTS, United States District Judge:

 Plaintiff, Neil E. Rogen, brings this action for breach of employment contract. Defendant, Memry Corporation ("Memry"), has moved for summary judgment pursuant to Fed. R. Civ. P. 56. This motion requires the Court to determine the applicability of a forum selection clause contained in the employment agreement. For the reasons set forth below, summary judgment is granted.

 BACKGROUND

 Memry, a Delaware corporation with its principal place of business in Brookfield, Connecticut, was founded by Rogen in November 1981. *fn1"

 In November 1983, Rogen became the Chief Executive Officer of Memry. He entered into a five-year employment contract ("Agreement") with Memry at this time. The Agreement included a termination clause providing, in pertinent part:

 
4.3 Nothing contained herein shall preclude [Memry] from terminating this Agreement for cause, in which case [Memry] shall not have any further obligation to [Rogen] other than for the payment of accrued but unpaid regular compensation due to [Rogen] hereunder. The term "cause" as used herein shall mean actions and inactions by [Rogen] involving material fraud, material intentional dishonest or material breach, after reasonable notice of opportunity to cure, of the terms of this Agreement.

 In addition, the Agreement contained the following forum selection clause:

 In February 1984, Memry retained A.T. Brod & Co. ("Brod") to underwrite an initial public offering of its securities. On April 25, 1984, Memry filed a registration statement with the Securities and Exchange Commission ("SEC") in connection with the planned public offering. For unexplained reasons, near the end of the underwriting process, Brod ceased its involvement with the Memry public offering. Later in 1984, a Brod employee, Akiyoshi Yamada ("Yamada"), introduced Rogen to Pericles Constantinou ("Constantinou") as a person who could locate another underwriter. Constantinou introduced Memry to Securities First, Inc. ("Securities First"). Securities First agreed to underwrite the public offering. Memry, through Rogen, executed a letter of intent with Securities First in September 1984, and in November 1984, Memry and Securities First executed an underwriting agreement.

 In addition, Constantinou arranged for Consulcor, Inc. ("Consulcor") to provide Memry with a $ 150,000 bridge loan to finance Memry's operations until the public offering closed. According to the agreement, Consulcor would loan Memry $ 50,000 immediately, $ 50,000 in December 1984 and the final $ 50,000 in February 1985. *fn2"

 Constantinou did not limit his involvement to merely introducing Memry to Securities First and Consulcor. With the aid of Securities First broker Joseph Tavormina, Constantinou purchased Memry shares in his own name and in that of entities and nominees that he controlled. In addition, Tavormina sold much of the remaining shares to specific investors and stockbrokers, at Constantinou's direction.

 Memry's registration statement became effective on November 9, 1984. Memry also distributed a prospectus to actual and prospective purchasers of its shares. On November 28, 1984, Rogen delivered stock certificates for 240,000 of his own shares to Constantinou. He transferred a stock power dated May 1, 1985, to Constantinou for those stock certificates. Rogen did not amend the Memry registration statement and prospectus in order to disclose the transfer to Constantinou of the 240,000 shares.

 In August 1986, the SEC commenced an investigation into the aftermarket trading of Memry stock and the accuracy of certain Memry press releases issued from November 4, 1985 to August 19, 1986. *fn3" Thereafter, Memry retained the law firm of Obermaier, Morvillo & Abramowitz ("OM&A") to conduct an internal investigation regarding matters investigated by the SEC. In September 1986, Rogen informed the Memry board and OM&A about the transfer of the stock certificates for 240,000 shares to Constantinou. On October 2, 1986, Memry terminated the Agreement for "cause" and removed Rogen from his positions as Chief Executive Officer and Chairman of ...


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