Exhibit 10.16
SUBSCRIPTION
AGREEMENT
THIS AGREEMENT is made as of
June 15, 2007 (the “ Agreement ”), by and
among STR Holdings LLC, a Delaware limited liability company (the
“ Company ”) and the individuals and entities
listed on the signature pages attached hereto (collectively,
the “ Purchasers ” and, each individually a
“ Purchaser ”).
W I T N E S S E T H :
WHEREAS, the Purchaser desires to
become a member of the Company on the terms and conditions set
forth in this Agreement and in the Limited Liability Company
Agreement of the Company, dated as of the date hereof (the “
LLC Agreement ”), a copy of which has been furnished
to the Purchaser. Capitalized terms not otherwise defined
herein shall have the meanings assigned to them in the LLC
Agreement.
WHEREAS, on the terms and subject to
the conditions set forth herein, each Purchaser desires to
subscribe for and purchase, and the Company desires to sell to each
Purchaser, that number of units of the Company’s Class A
Units (the “ Class A Units ”), and for an
aggregate purchase price, as set forth on Schedule A
attached hereto opposite such Purchaser’s name (the purchase
price to be paid by any particular Purchaser for any Class A
Units is herein referred to as the “ Purchase Price
”).
NOW, THEREFORE, in order to
implement the foregoing and in consideration of the mutual
representations, warranties, covenants and agreements contained
herein and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1.
Purchase and Sale of the
Class A Units .
(a)
At the Closing referred to in
Section 2 below, subject to the terms and conditions
set forth herein, the Company shall sell to each Purchaser the
Class A Units in the amount listed on Schedule A and
each Purchaser shall pay the Company the Purchase Price set forth
on Schedule A .
(b)
The obligations of each Purchaser
shall be several and not joint, and no Purchaser shall be liable or
responsible for the acts of any other Purchaser under this
Agreement.
2.
The Closing
.
(a)
The closing of the purchase and sale
of the Class A Units (the “ Closing ”)
shall occur on the date (the “ Closing Date ”)
of the closing of the merger of STR Acquisition, Inc. with and
into Specialized Technology Resources, Inc. (“
STR ”), with STR being the surviving entity (the
“ Merger ”), pursuant to the Amended and
Restated Agreement and Plan of Merger, dated June 15, 2007
(the “ Merger Agreement ”).
(b)
At the Closing, each Purchaser shall
deliver to the Company the Purchase Price by wire transfer of
immediately available funds to such accounts as designated in
writing by the Company to such Purchaser prior to the Closing or by
other means reasonably acceptable to the Company. Payment of
the Purchase Price shall be made in U.S. dollars.
3.
Representations and Warranties of
the Company . The
Company hereby represents and warrants to each Purchaser as
follows:
(a)
The Company is duly organized,
validly existing and in good standing under the laws of Delaware
and has all requisite corporate power and authority to carry on its
business as now conducted and as proposed to be
conducted.
(b)
The Company has full corporate power
and authority to execute and deliver this Agreement and all other
agreements and instruments contemplated hereby to which the Company
is a party and to perform its obligations hereunder and thereunder,
and this Agreement and all such other agreements and instruments
have been duly authorized, executed and delivered by the Company
and, assuming the due execution and delivery of this Agreement and
all other agreements and instruments contemplated hereby to which
the Company is a party, by the other parties hereof and thereof,
are valid, binding and enforceable against the Company in
accordance with their terms.
(c)
The execution, delivery and
performance of this Agreement by the Company, and the fulfillment
of and compliance with the terms hereof by the Company, do not and
will not (i) violate or conflict with any requirements of any
material contract or obligation of the Company, including the
certificate of formation or limited liability company agreement of
the Company, (ii) result in or constitute (with or without the
giving of notice, lapse of time or both) any default or event of
default under any such material obligation of the Company, or give
rise to a right of termination of, or accelerate the performance
required by, any terms of any such material obligation, or
(iii) violate any statute, law, ordinance, rule, regulation or
order of any court or governmental authority or any judgment, order
or decree (U.S. federal, state or local or foreign) applicable to
the Company.
(d)
The Class A Units, when issued,
sold, delivered and paid for in accordance with the terms of this
Agreement, will be duly and validly issued, fully paid and
non-assessable and, assuming the accuracy of the representations
and warranties made by the Purchasers, will be issued in compliance
with all applicable federal and state securities laws.
(e)
The Company is newly formed and has
not conducted any business, nor entered into any agreements or
contracts with any other person other than in connection with its
incorporation and in connection with the Merger.
(f)
There are no suits, actions, claims,
demands, hearings, indictments, proceedings or investigations
pending against the Company, or, to the knowledge of the Company,
threatened against or involving the Company, the members of the
Company or the officers or managers of the Company in connection
with the business and affairs of the Company before any court,
arbitrator or administrative or governmental body (U.S. federal,
state or local or foreign). The Company is not subject to any
judgment, decree, injunction or order of any court.
4.
Representations and Warranties of
the Purchasers .
Each Purchaser hereby represents and warrants, severally and not
jointly, to the Company that:
(a)
If such Purchaser is not an
individual, such Purchaser is a corporation, partnership, limited
liability company or trust, as the case may be, duly organized,
validly existing and in good standing under the laws of its
jurisdiction of organization. Such Purchaser has full right,
capacity and power to execute and deliver this Agreement, the
LLC
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Agreement and all other agreements
and instruments contemplated hereby to which such Purchaser is a
party, and to perform his, her or its obligations hereunder and
thereunder. This Agreement, the LLC Agreement and all other
agreements and instruments contemplated hereby to which such
Purchaser is a party have been duly executed and delivered by or on
behalf of such Purchaser and, assuming due execution by each of the
other parties hereto and thereto, constitute legal, valid and
binding agreements, enforceable against such Purchaser in
accordance with their terms.
(b)
The execution, delivery and
performance of this Agreement, the LLC Agreement and all other
agreements and instruments contemplated hereby to which such
Purchaser is a party and the fulfillment of and compliance with the
respective terms hereof and thereof by the Purchaser, do not and
will not (i) violate or conflict with any requirements of any
material contract or obligation of such Purchaser, including, if
such Purchaser is not an individual, the certificate of
incorporation, bylaws or comparable organizational documents of
such Purchaser, or (ii) result in or constitute (with or
without the giving of notice, lapse of time or both) any default or
event of default under any such material contract or obligation of
the Purchaser, or give rise to a right of termination of, or
accelerate the performance required by, any terms of any such
material contract or obligation, or (iii) violate any statute,
law ordinance, rule, regulation or order of any court or
governmental authority or any judgment, order or decree (U.S.
federal, state or local or foreign) applicable to such
Purchaser.
(c)
The Class A Units to be
received by such Purchaser will be acquired by such Purchaser for
investment only for such Purchaser’s own account, not as a
nominee or agent, and not with a view to the sale or distribution
of any part thereof in violation of applicable U.S. federal or
state or foreign securities laws. Such Purchaser has no
current intention of selling, granting participation in or
otherwise distributing the Class A Units in violation of
applicable U.S. federal or state or foreign securities laws.
Other than the LLC Agreement, such Purchaser does not have any
contract, undertaking, agreement or arrangement with any person or
entity with respect to the sale, transfer, voting or other rights
of the Class A Units.
(d)
Such Purchaser understands that the
offer and sale of the Class A Units have not been registered
under the Securities Act of 1933 as amended (the “
Securities Act ”) or any applicable U.S. state or
foreign securities laws, and that the Class A Units are being
issued in reliance on an exemption from registration, which
exemption depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of such Purchaser’s
representations as expressed herein.
(e)
Such Purchaser has such knowledge
and experience in financial and business matters as to be capable
of evaluating the merits and risks of such Purchaser’s
investment. Such Purchaser is a sophisticated investor, has
relied upon independent investigations made by such Purchaser and,
to the extent believed by such Purchaser to be appropriate, such
Purchaser’s representatives, including such Purchaser’s
own professional, tax and other advisors, and is making an
independent decision to invest in the Class A Units.
Such Purchaser has been furnished with such documents, materials
and information that such Purchaser deems necessary or appropriate
for evaluating an investment in the Company, and such Purchaser has
read carefully such documents, materials and information and
understands and has evaluated the types of risks involved with a
purchase of the Class A Units. Such Purchaser has not
relied upon any representations (other than those set forth in
Section 3 of this Agreement) or other information (whether
oral or written) from the Company or its respective members,
managers, officers or affiliates, or from any other person or
entity, in connection with his, her, or its
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investment in the Class A
Units. Such Purchaser ackn
