UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF

THE SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): September 28, 2012

 

STR Holdings, Inc.

(Exact Name of Registrant as Specified in Charter)

 

Delaware

 

001-34529

 

27-1023344

(State or Other Jurisdiction of

 

(Commission File Number)

 

(IRS Employer

Incorporation or Organization)

 

 

 

Identification No.)

 

1699 King Street

 

 

Enfield, Connecticut

 

06082

(Address of principal executive offices)

 

(Zip Code)

 

Registrant’s telephone number, including area code: ( 860) 758-7300

 

 

(Former Name or Former Address, if Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 



 

Item 1.01. Entry into a Material Definitive Agreement.

 

On September 28, 2012 (the “Effective Date”), STR Holdings, Inc. (the “Company”), certain Company domestic subsidiaries, as guarantors (the “Guarantors”), the lenders from time to time party thereto (the “Lenders”) and Bank of America, N.A., as administrative agent, swing line lender and Letter of Credit issuer (the “Administrative Agent”) entered into the First Amendment to Credit Agreement and Security Agreement (the “First Amendment”), amending (i) the Credit Agreement, dated as of October 7, 2011 (the “Credit Agreement”), among the Company, the Guarantors, the Lenders and the Administrative Agent and (ii) the Security Agreement, dated as of October 7, 2011, among the Company, the Guarantors and the Administrative Agent.  The Company has no outstanding indebtedness pursuant to the Credit Agreement. Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement as amended by the First Amendment.

 

The First Amendment reduces the amount available under the revolving senior credit facility from $150 million to $25 million. During the Cash Collateral Period, the Company may borrow under the revolving senior credit facility. However, the Company must maintain cash collateral deposited by the Company and/or its subsidiaries in an account controlled by the Administrative Agent in an amount equal to any outstanding borrowing under the Credit Agreement, as amended. In addition, the Company is not required to comply with the financial covenants set forth in the Credit Agreement, as amended, during the Cash Collateral Period.

 

The Cash Collateral Period is the period commencing on the Effective Date and ending on the first date after September 28, 2013 on which (i) the Company and its Subsidiaries have had at least a 5% increase in revenues (determined on a quarter-over-quarter basis) for two consecutive fiscal quarters, (ii) the Company and the Guarantors are in compliance with the Consolidated Leverage Ratio, Consolidated Fixed Charge Coverage Ratio and Consolidated EBITDA financial covenants contained in the Credit Agreement, as amended, for the then most recently-ended four fiscal quarter period and (iii) no Default exists. Subsequent to the Cash Collateral Period, the Company will not have to post cash collateral to borrow under the revolving senior credit facility.

 

Other than during the Cash Collateral Period, the Company is required to (i) maintain a Consolidated Leverage Ratio as of the end of any fiscal quarter of no more than 2.50 to 1.00, (ii) maintain a Consolidated Fixed Charge Coverage Ratio as of the end of any fiscal quarter of no less than 1.50 to 1.00 and (iii) have Consolidated EBITDA as of the end of the most recent four fiscal quarter period of at least $10 million.

 

The foregoing description of the First Amendment is a summary only and is qualified in its entirety by reference to the full text of the First Amendment, which is filed herewith as Exhibit 10.1 and is incorporated herein by reference.

 



 

Item 2.03. Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant.

 

The information set forth under Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.

 

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Executive Severance Agreements

 

The Company entered into severance agreements, dated as of October 1, 2012 (the “Severance Agreements”), with each of Robert S. Yorgensen, Barry A. Morris, Joseph C. Radziewicz and Alan N. Forman, setting forth certain payments and benefits in the event of termination of employment. The Severance Agreements will remain in effect until October 1, 2017 and will automatically renew for one year periods unless the Company or the executive provides notice of termination as provided for in the Severance Agreement.  However, the term of each Severance Agreement will not expire before a date that is 18 months after a Change of Control that occurs during the term of the Severance Agreements. To the extent applicable, the Severance Agreements supersede and replace the severance provisions set forth in any executive’s employment agreement with the Company. Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Severance Agreements.

 

The Severance Agreements provide, among other things, that, if the executive is terminated for any reason, the executive is entitled to his full base salary through the date of termination at the rate in effect immediately prior to such termination date, as well as all compensation and benefits due to the executive under the terms of the Company’s benefit plans, programs and arrangements in effect immediately prior to the termination date.

 

If an executive is terminated by the Company without Cause or if he terminates his employment with Good Reason, other than during a Change in Control Severance Period, the executive is entitled to receive the payments described above plus (i) the sum of 1.0 times his base salary; (ii) a pro rata portion of any bonus payment he would have been eligible to receive for the performance year during which the termination date occurs; (iii) up to 12 months of payments in the amount required for continuation of COBRA plans and other benefits; (iv) prepayment of all life insurance premiums for 12 months plus the transfer of ownership of all rights of ownership of such arrangements; (v) payments for outplacement services for up to 12 months and (vi) the reimbursement of reasonable legal fees and expenses incurred by the executive in disputing in good faith issues relating to the termination of employment or obtaining or enforcing any benefit provided under the Severance Agreement.

 

If an executive (other than Mr. Yorgensen) is terminated by the Company without Cause or if he terminates his employment with Good Reason during a Change in Control Severance Period, he is entitled to (i) the sum of 1.25 times his base salary; (ii) his target bonus for the performance year during which the termination date occurs; and (iii) the continued COBRA benefits, life insurance benefits, and outplacement services for up to 15 months and legal fees described

 

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above. Mr. Yorgensen is entitled to the same benefits described above for the other executives, except he is eligible to receive a sum of 2.0 times his base salary in such event and the continuation of COBRA benefits, life insurance benefits and outplacement services for up to 24 months. The Change of Control Severance Period is the period commencing 90 days prior to a Change in Control and ending one year following a Change in Control.

 

Option Agreements

 

On October 1, 2012, the Company also entered into non-qualified stock option agreements (the “Option Agreements”) with each of Messrs. Yorgensen, Morris, Radziewicz and Forman, under the Company’s 2009 Equity Incentive Plan. Pursuant to the Option Agreements, the Company granted Messrs. Yorgensen, Morris, Radziewicz and Forman options to purchase 285,000, 165,000, 100,000 and 125,000 shares of the Company’s common stock, respectively, at an exercise price of $3.10 (the closing price on September 28, 2012). The options have a term of 10 years and vest annually with 25% of the options vesting on each of the first two anniversaries of the date of grant and the remaining 50% of the options vesting on the third anniversary of the date of grant.  The terms of the Option Agreements for each executive are substantially similar to the prior option agreements the Company has entered into with such executives, except that the Option Agreements do not provide for accelerated vesting upon a Change of Control, other than as disclosed in the following sentence.  The Option Agreements provide that upon a Change of Control (as defined in the Option Agreements) the unvested portion of the option will vest in full to the extent such option is not (i) assumed by the Company or the surviving corporation or its parent or (ii) substituted by the surviving corporation or its parent with a stock option with substantially the same terms.

 

The foregoing summaries of the Severance Agreements and Option Agreements do not purport to be complete and are subject to, and qualified in their entirety by, the full text of such documents to be filed as exhibits to the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2012, and the forms of which are attached as Exhibits 10.2 and 10.3 hereto and are incorporated herein by reference.

 

Item 9.01. Financial Statements and Exhibits.

 

(d)  Exhibits

 

Exhibit
No.

 

Description

10.1

 

First Amendment to Credit Agreement and Security Agreement, dated as of September 28, 2012, among STR Holdings, Inc., as borrower, the guarantors party thereto, the lenders party thereto and Bank of America, N.A., as Administrative Agent, Swing Line Lender and Letter of Credit Issuer.

10.2

 

Form of Executive Severance Agreement.

10.3

 

Form of Executive Non-Qualified Option Agreement.

 

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SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

STR Holdings, Inc.

 

 

Date: October 3, 2012

By:

/s/ Alan N. Forman

 

 

Alan N. Forman

 

 

Senior Vice President and General Counsel

 

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EXHIBIT INDEX

 

Exhibit
No.

 

Description

10.1

 

First Amendment to Credit Agreement and Security Agreement, dated as of September 28, 2012, among STR Holdings, Inc., as borrower, the guarantors party thereto, the lenders party thereto and Bank of America, N.A., as Administrative Agent, Swing Line Lender and Letter of Credit Issuer.

10.2

 

Form of Executive Severance Agreement.

10.3

 

Form of Executive Option Agreement.

 

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Exhibit 10.1

 

FIRST AMENDMENT TO CREDIT AGREEMENT AND SECURITY AGREEMENT

 

THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND SECURITY AGREEMENT, dated as of September 28, 2012 (this “ Amendment ”), is entered into among STR HOLDINGS, INC., a Delaware corporation (the “ Borrower ”), the Guarantors party hereto, the Lenders party hereto, and BANK OF AMERICA, N.A., as Administrative Agent for the Lenders (in such capacity, the “ Administrative Agent ”).  Capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in the Credit Agreement (as defined below).

 

RECITALS

 

WHEREAS, the Borrower, the Guarantors, the Lenders and the Administrative Agent are parties to that certain Credit Agreement, dated as of October 7, 2011 (as amended or modified from time to time, the “ Credit Agreement ”);

 

WHEREAS, the Borrower, the Guarantors and the Administrative Agent are parties to that certain Security and Pledge Agreement, dated as of October 7, 2011 (as amended or modified from time to time, the “ Security Agreement ”); and

 

WHEREAS, the parties hereto have agreed to amend the Credit Agreement and the Security Agreement as provided herein.

 

NOW, THEREFORE, in consideration of the agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

 

AGREEMENT

 

1 .                                        Amendments to Credit Agreement .

 

(a)                                   The following definitions in Section 1.01 of the Credit Agreement are hereby amended to read as follows:

 

Aggregate Revolving Commitments ” means the Revolving Commitments of all the Lenders.  The initial amount of the Aggregate Revolving Commitments in effect on the First Amendment Effective Date is $25,000,000.

 

Consolidated Adjusted EBITDA ” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, an amount equal to the sum of (a) Consolidated EBITDA for such period minus (b) Consolidated Adjusted Capital Expenditures for such period minus (c) income taxes paid in cash during such period.

 

Revolving Commitment ” means, as to each Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.01 , (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable as such amount may be adjusted from time to time in accordance with this Agreement.

 

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(b)                                  The following definitions are hereby added to Section 1.01 of the Credit Agreement in the appropriate alphabetical order to read as follows:

 

Cash Collateral Account ” means deposit account no. 385015857138 at Bank of America.

 

Cash Collateral Amount ” means aggregate amount of cash collateral deposited with Bank of America in the Cash Collateral Account; provided that, for purposes of determining if any Request for Credit Extension complies with Sections 2.01(a) , 2.03(a)(i)  and 2.04(a) , the Cash Collateral Amount shall be deemed to be the aggregate amount of cash collateral in such deposit account twenty-four hours prior to the delivery of such Request for Credit Extension.

 

Cash Collateral Period ” means the period commencing on the First Amendment Effective Date and ending on the first Business Day following the Cash Collateral Termination Date.

 

Cash Collateral Termination Date ” means the first date after September 28, 2013, on which all of the following conditions are satisfied:  (a) the Borrower and its Subsidiaries, on a consolidated basis, have had at least a 5% increase in revenues (determined on a quarter-over-quarter basis) for two consecutive fiscal quarters, (b) the Loan Parties are in compliance with the financial covenants set forth in Section 8.11 for the then most recently-ended four fiscal quarter period and (c) no Default exists.

 

Consolidated Adjusted Capital Expenditures ” means the difference of (a) Consolidated Capital Expenditures minus (b) the non-financed portion of Consolidated China Capital Expenditures.

 

Consolidated China Capital Expenditures ” means the aggregate amount of Consolidated Capital Expenditures made by the Borrower in connection with its expansion into China; provided , that for purposes of calculating the Consolidated Fixed Charge Coverage Ratio, the aggregate amount of Consolidated China Capital Expenditures shall not exceed $15,000,000 for any four quarter period that ends on or prior to March 31, 2014.

 

First Amendment Effective Date ” means September 28, 2012.

 

(c)                                   The first sentence in Section 2.01(a) of the Credit Agreement is hereby amended to read as follows:

 

(a)                                   Revolving Loans .  Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a “ Revolving Loan ”) to the Borrower in Dollars or in one or more Alternative Currencies from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Commitment; provided , however , that after giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment, (iii) the Outstanding Amount of all

 

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Revolving Loans denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit and (iv) during the Cash Collateral Period, the Total Revolving Outstandings shall not exceed the Cash Collateral Amount.

 

(d)                                  Section 2.01(b) of the Credit Agreement is hereby amended to read as follows:

 

(b)                                  [Reserved] .

 

(e)                                   The first sentence in Section 2.03(a)(i) of the Credit Agreement is hereby amended to read as follows:

 

(i)                                      Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03 , (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (x) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment, (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit and (z) during the Cash Collateral Period, the Total Revolving Outstandings shall not exceed the Cash Collateral Amount.

 

(f)                                     The first sentence in Section 2.04(a) of the Credit Agreement is hereby amended to read as follows:

 

(a)                                   Swing Line Facility .  Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04 , shall make loans (each such loan, a “ Swing Line Loan ”) to the Borrower in Dollars from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Revolving Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving Commitment; provided , however , that after giving effect to any Swing Line Loan, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment and (iii) during the Cash Collateral Period, the Total Revolving Outstandings shall not exceed the Cash Collateral Amount.

 

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(g)                                  A new clause (C) is hereby added at the end of Section 2.05(b)(i) of the Credit Agreement to read as follows:

 

(C)                                 If the Administrative Agent notifies the Borrower at any time during the Cash Collateral Period that the Total Revolving Outstandings exceed the Cash Collateral Amount then in effect, the Borrower shall immediately prepay Revolving Loans and/or Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided , however , that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i)(C)  unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Revolving Outstandings exceed the Cash Collateral Amount then in effect.

 

(h)                                  Section 8.11 of the Credit Agreement is hereby amended to read as follows:

 

8.11                         Financial Covenants .

 

(a)                                   Consolidated Leverage Ratio .  Permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Borrower to be greater than 2.50 to 1.0.

 

(b)                                  Consolidated Fixed Charge Coverage Ratio .  Permit the Consolidated Fixed Charge Coverage Ratio as of the end of any fiscal quarter of the Borrower to be less than 1.50 to 1.0.

 

(c)                                   Consolidated EBITDA .  Permit the Consolidated EBITDA as of the end of the most recent four fiscal quarter period of the Borrower to be less than $10,000,000.

 

During the Cash Collateral Period, the Loan Parties shall not be required to comply with the financial covenants set forth in this Section 8.11 ; however, the Loan Parties must still deliver a Compliance Certificate calculating these financial covenants.

 

(i)                                      Section 11.07(f) of the Credit Agreement is hereby amended to read as follows:

 

(f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to a Loan Party and its obligations,

 

(j)                                      A new Section 8.16 is hereby added to the Credit Agreement immediately following Section 8.15 of the Credit Agreement to read as follows:

 

8.16                         Cash Collateral Amount .

 

At any time during the Cash Collateral Period, permit the Cash Collateral Amount to be less than the Total Revolving Outstandings.

 

(k)                                   Schedule 2.01 to the Credit Agreement is hereby deleted and replaced in its entirety with Schedule 2.01 attached hereto.

 

2 .                                        Amendment to Security Agreement .  A new clause (i) is hereby added to Section 4 of the Security Agreement immediately following clause (h) in to read as follows:

 

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(i)            Cash Collateral Account .  Except as provided in the following sentence, notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, no Obligor shall withdraw funds from the Cash Collateral Account.  In the event the Cash Collateral Amount exceeds the Total Revolving Outstandings, upon the request of the Borrower, the Administrative Agent shall release to the Borrower the funds that are in excess of the Total Revolving Outstandings.

 

3 .             Effectiveness; Conditions Precedent .  This Amendment shall be effective upon satisfaction of the following conditions precedent: (a) receipt by the Administrative Agent of copies of this Amendment duly executed by the Loan Parties, the Required Lenders and the Administrative Agent; (b) receipt by the Administrative Agent of satisfactory authorizing resolutions of the Loan Parties and opinions of counsel for the Loan Parties; (c) receipt by the Administrative Agent, for the account of each Lender executing this Amendment, an amendment fee equal to 0.125% of such Lender’s Revolving Commitment and (d) receipt by the Administrative Agent of all fees and expenses owed by the Loan Parties to the Administrative Agent.

 

4 .             Expenses .  The Loan Parties agree to reimburse the Administrative Agent for all reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment, including without limitation the reasonable fees and expenses of Moore & Van Allen PLLC.

 

5 .             Ratification of Credit Agreement .  Each Loan Party acknowledges and consents to the terms set forth herein and agrees that this Amendment does not impair, reduce or limit any of its obligations under the Loan Documents, as amended hereby.  This Amendment is a Loan Document.

 

6 .             Authority/Enforceability .  Each Loan Party represents and warrants as follows:

 

(a)           It has taken all necessary action to authorize the execution, delivery and performance of this Amendment.

 

(b)           This Amendment has been duly executed and delivered by such Loan Party and constitutes its legal, valid and binding obligations, enforceable in accordance with its terms, subject to applicable Debtor Relief Laws and to general principles of equity.

 

(c)           No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by such Loan Party of this Amendment.

 

(d)           The execution and delivery of this Amendment does not (i) contravene the terms of its Organization Documents or (ii) violate any Law.

 

7 .             Representations and Warranties of the Loan Parties .  Each Loan Party represents and warrants to the Lenders that after giving effect to this Amendment (a) the representations and warranties set forth in Article V of the Credit Agreement are true and correct in all material respects (or, if such representation or warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects as written) as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and (b) no event has occurred and is continuing which constitutes a Default.

 

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8 .             Counterparts/Telecopy .  This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument.  Delivery of executed counterparts of this Amendment by telecopy or other secure electronic format (.pdf) shall be effective as an original.

 

9 .             Release .  In consideration of the Lenders entering into this Amendment, the Loan Parties hereby release the Administrative Agent, the Lenders, and the Administrative Agent’s and the Lenders’ respective officers, employees, representatives, agents, counsel and directors from any and all actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, now known or unknown, suspected or unsuspected to the extent that any of the foregoing arises from any action or failure to act on or prior to the date hereof.

 

10 .           GOVERNING LAW .  THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

11 .           Successors and Assigns .   This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

 

12 .           Headings .  The headings of the sections hereof are provided for convenience only and shall not in any way affect the meaning or construction of any provision of this Amendment.

 

13 .           Severability .  If any provision of this Amendment is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Amendment shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

[ remainder of page intentionally left blank ]

 

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Each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written.

 

BORROWER:

STR HOLDINGS, INC.,

 

a Delaware corporation

 

 

 

 

By:

/s/ Barry A. Morris

 

Name:

Barry A. Morris

 

Title:

Executive Vice President and Chief Operating Officer

 

 

 

GUARANTORS:

SPECIALIZED TECHNOLOGY RESOURCES, INC.,

 

a Delaware corporation

 

 

 

By:

/s/ Barry A. Morris

 

Name:

Barry A. Morris

 

Title:

Executive Vice President and Chief Operating Officer

 

 

 

 

STR SOLAR (CONNECTICUT), LLC,

 

a Delaware limited liability company

 

 

 

 

By: Specialized Technology Resources, Inc., its Sole Member

 

 

 

 

By:

/s/ Barry A. Morris

 

Name:

Barry A. Morris

 

Title:

Executive Vice President and Chief Operating Officer

 

 

 

 

10 WATER STREET, LLC,

 

a Delaware limited liability company

 

 

 

By: Specialized Technology Resources, Inc., its Sole Member

 

 

 

By:

/s/ Barry A. Morris

 

Name:

Barry A. Morris

 

Title:

Executive Vice President and Chief Operating Officer

 



 

ADMINISTRATIVE AGENT:

BANK OF AMERICA, N.A.,

 

as Administrative Agent

 

 

 

 

By:

/s/Roberto Salazar

 

Name:

Roberto Salazar

 

Title:

Vice President

 

 

 

LENDERS:

BANK OF AMERICA, N.A.,

 

as a Lender, L/C Issuer and Swing Line Lender

 

 

 

By:

/s/ Christopher T. Phelan

 

Name:

Christopher T. Phelan

 

Title:

Vice President

 

 

 

 

RBS CITIZENS, N.A.,

 

as a Lender

 

 

 

By:

/s/Marianne Stowell

 

Name:

Marianne Stowell

 

Title:

Vice President

 

 

 

 

FIFTH THIRD BANK,

 

as a Lender

 

 

 

By:

/s/Valerie Schanzer

 

Name:

Valerie Schanzer

 

Title:

Vice President

 

 

 

 

FIRST NIAGARA BANK N.A.,

 

as a Lender

 

 

 

By:

/s/ Dante Fazzina

 

Name:

Dante Fazzina

 

Title:

Vice President

 

 

 

 

WEBSTER BANK, NATIONAL ASSOCIATION,

 

as a Lender

 

 

 

By:

/s/ Adam McLaughlin

 

Name:

Adam McLaughlin

 

Title:

Vice President

 

 

 

 

CITIBANK, N.A.,

 

as a Lender

 

 

 

By:

/s/ William McAndrew

 

Name:

William McAndrew

 

Title:

Vice President

 


Exhibit 10.2

 

[Executive Form]

10/1/12

 

FORM OF SEVERANCE AGREEMENT

 

This Agreement, is made as of October 1, 2012 (the “ Effective Date ”), by and between [STR HOLDINGS, INC.], a Delaware corporation (the “ Company ”), and                     (the “ Executive ”).

 

WHEREAS , the Company considers it essential to the best interests of its stockholders to foster the continued employment of key management personnel; and

 

WHEREAS , the Board recognizes that the possibility of a Change in Control (as hereinafter defined) exists and that such possibility and the uncertainty and questions which it may raise among management, may result in the departure or distraction of management personnel to the detriment of the Company and its stockholders; and

 

WHEREAS , the Board has determined that appropriate steps should be taken to reinforce and encourage the continued attention and dedication of members of the Company’s management, including the Executive, to their assigned duties without the potential distractions arising from the possibility of a Change in Control; and

 

WHEREAS , the Board has determined that additional severance benefits in the absence of a Change in Control should be provided to senior management in order to attract and retain the executive talent required to best serve the Company and its stockholders.

 

NOW, THEREFORE , in consideration of the premises and the mutual covenants herein contained, the Company and the Executive hereby agree as follows:

 

1.                Defined Terms .  The definitions of capitalized terms used in this Agreement are provided in the last Section of this Agreement.

 

2.                Term .   This Agreement shall terminate on the fifth (5 th ) anniversary of the Effective Date. The term of this Agreement shall be automatically extended thereafter for successive one (1) year periods unless, at least ninety (90) days prior to the end of the fourth anniversary of the Effective Date or the then current succeeding one-year extended term of this Agreement, the Company or Executive has notified the other that the term hereunder shall expire at the end of the then-current term. Notwithstanding any such notice, the term of this Agreement shall not expire before the date that is eighteen (18) months after a Change in Control that occurs within the term of this Agreement. The initial term of this Agreement, as it may be extended under this Section 2, is herein referred to as the “ Term .”

 

3.                Company’s Covenants Summarized .  In order to induce the Executive to remain in the employ of the Company and in consideration of the Executive’s continued employment, the Company agrees, under the terms and conditions hereof, to pay the Executive the Severance Payments and the other payments and benefits described in this Agreement.  This Agreement shall not be construed as creating an express or implied contract of employment and, except as otherwise agreed in writing between the Executive and the

 



 

Company, the Executive shall not have any right to be retained in the employ of the Company.

 

4.                Compensation Other Than Severance Payments .

 

If the Executive’s employment shall be terminated for any reason during the Term of this Agreement, the Company shall pay the Executive’s full salary to the Executive through the Date of Termination at the rate in effect immediately prior to the Date of Termination or, if there has been a Base Salary Reduction, the rate in effect immediately prior to such Base Salary Reduction, together with all compensation and benefits payable to the Executive through the Date of Termination under the terms of the Company’s compensation and benefit plans, programs or arrangements as in effect immediately prior to the Date of Termination (or, if more favorable to the Executive, as in effect immediately prior to the first occurrence of an event or circumstance constituting Good Reason).

 

5.                Severance Payments .

 

(a)      General .  If the Executive’s employment is terminated during the Term of this Agreement (i) by the Company without Cause, or (ii) by the Executive for Good Reason (collectively, a “ Qualifying Termination ”), then the Company shall pay the Executive the amounts, and provide the Executive the benefits described in this Section 5 (“ Severance Payments ”) in addition to any payments and benefits to which the Executive is entitled under Section 4 of this Agreement.

 

(b)      Payments — Not During the Change in Control Severance Period . If a Qualifying Termination occurs other than during a Change in Control Severance Period, then, in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination (and in lieu of payments due pursuant Section 5(c) below), the Company shall pay to the Executive (i) an amount, in cash, equal to the sum of the product obtained by multiplying the Executive’s base salary as in effect immediately prior to the Date of Termination or, if there has been a Base Salary Reduction, the annual base salary in effect immediately prior to such Base Salary Reduction, by the Applicable Multiplier set forth in column B of Schedule A to this Agreement (the “ Periodic Payments ”), and (ii) a pro-rata portion of the Executive’s Actual Bonus for the performance year during which such Date of Termination occurs (the “ Pro Rata Bonus ”). This Pro-Rata Bonus shall be determined by multiplying such Actual Bonus by a fraction, the numerator of which is the number of days during such performance year that the Executive is employed by the Company and the denominator of which is 365.  Subject to Section 5(h) below and the Executive’s satisfaction of the conditions set forth in Section 11(a) below, the Periodic Payments shall be paid periodically to the Executive in accordance with the Company’s customary payroll practices and the Pro Rata Bonus shall be paid to the Executive in a lump sum within thirty (30) days following the completion of the Company’s year-end audit for the year during which the Date of Termination occurs, but in no event later than April 1 st  of the fiscal year following the year during which the Date of Termination occurs.

 

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(c)      Payments — During the Change in Control Severance Period . If a Qualifying Termination occurs during a Change in Control Severance Period, then, in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination (and in lieu of payments due pursuant to Section 5(b) above), the Company shall pay to the Executive a lump sum severance payment, in cash, equal to the sum of (i) the product obtained by multiplying the Executive’s annual base salary as in effect immediately prior to the Date of Termination or, if there has been a Base Salary Reduction, the annual base salary in effect immediately prior to such Base Salary Reduction, by the Applicable Multiplier set forth in column C of Schedule A to this Agreement (the “ Lump Sum Amount ”), and (ii) the Executive’s Target Bonus for the performance year during which such Date of Termination occurs (the “ Target Bonus Amount ”). Subject to Section 5(h) and the Executive’s satisfaction of the conditions set forth in Section 11(a) below, the Lump Sum Amount and the Target Bonus Amount shall be paid to the Executive in a lump sum on the date which is sixty (60) days following the Date of Termination.

 

(d)      Medical Benefits . For the Applicable Severance Period, the Company shall on a monthly basis reimburse the Executive for the cost of medical, dental, and accidental death and dismemberment benefits provided under COBRA which benefits shall be substantially similar to such benefits as provided to the Executive and his dependents immediately prior to the Date of Termination or, if more favorable to the Executive, those provided to the Executive and his dependents immediately prior to the first occurrence of an event or circumstance constituting Good Reason, at no greater cost to the Executive than the cost to the Executive immediately prior to such date or occurrence. The parties intend that during the Applicable Severance Period continued medical and dental coverage shall not constitute a “deferral of compensation” under Treas. Reg. Sect. 1.409A-1(b), and that continued accidental death and dismemberment benefits hereunder shall qualify as a “limited payment” of an “in kind” benefit under Treas. Reg. Sect. 1.409A-1(b)(9)(v)(C) and (D).  Any portion of the continued medical, dental and accidental death and dismemberment coverage under this subsection (d) that is subject to Section 409A is intended to qualify as a “reimbursement or in-kind benefit plan” under Treas. Reg. Sect. 1.409A-3(i)(1)(iv). Benefits otherwise receivable by the Executive pursuant to this subsection (d) shall be reduced to the extent benefits of the same type are received by or made available by a subsequent employer to the Executive during the Applicable Severance Period (and any such benefits received by or made available to the Executive shall be reported to the Company by the Executive); provided, however, that the Company shall reimburse the Executive for the excess, if any, of the cost of such benefits to the Executive over such cost immediately prior to the Date of Termination or, if more favorable to the Executive, the first occurrence of an event or circumstance constituting Good Reason. Any such reimbursement under this subsection (d) that is subject to Section 409A of the Code shall be made promptly in accordance with Company policy, but in any event on or before the last day of the Executive’s taxable year following the taxable year in which the expense or cost was incurred, but notwithstanding the foregoing, any such reimbursements which would otherwise be made prior to the first day of the seventh month following the Date of Termination shall be made on such date if the Executive is a Specified Employee. In no event shall the amount that the Company pays

 

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for any such benefit in any one year affect the amount that it will pay in any other year and in no event shall the benefits described in this subsection (d) be subject to liquidation or exchange for another benefit.

 

(e)      Life Insurance . The Company shall (i) prepay all premiums due during the Applicable Severance Period under any insurance policy maintained by the Company insuring the life of the Executive that is in effect and (ii) transfer to the Executive any and all rights and incidents of ownership in such arrangements.

 

(f)      Outplacement Services . The Company shall provide the Executive with a level of outplacement services commensurate with the Executive’s position during the Applicable Severance Period as determined by the Company in its reasonable discretion.  However such services, if otherwise ongoing, shall terminate upon the Executive’s first day of employment with a new employer.  In no event may the reimbursement of any outplacement services expense incurred by the Executive extend beyond the third taxable year of the Executive following the taxable year of the Executive in which the Date of Termination occurred.

 

(g)      Legal Fees . The Company also shall reimburse the Executive for the reasonable legal fees and expenses incurred by the Executive in disputing in good faith any issue hereunder relating to the termination of the Executive’s employment or in seeking in good faith to obtain or enforce any benefit or right provided by this Agreement, provided the Executive is the prevailing party with respect to such dispute.  Such payments shall be made within ten (10) business days after delivery of the Executive’s written request for payment accompanied with such evidence of fees and expenses incurred as the Company reasonably may require.

 

(h)      Timing of Payments .  Severance Payments under Section 5(b) of this Agreement shall be paid as therein set forth; provided, however, that to the extent that the total amount of Periodic Payments to be made under Section 5(b), exceeds the amount of Qualifying Severance Payments, then, for a non-Specified Employee, such excess shall be paid in a lump sum on the date which is sixty (60) days following the Date of Termination or, in the case a Specified Employee, on the first day of the seventh month following the Date of Termination.  In addition, if such total amount of Periodic Payments to be made under Section 5(b) exceeds the amount of Qualifying Severance Payments, each Periodic Payment shall be reduced by an amount determined by dividing such excess by the total number of Periodic Payments and the aggregate of such reductions shall be made as a lump sum on the date which is sixty (60) days following the Date of Termination if the Executive is not a Specified Employee or be made on the first day of the seventh month following the Date of Termination if the Executive is a Specified Employee.  Severance Payments under Section 5(c) of this Agreement shall be paid as therein set forth; provided, however, that to the extent that the total Lump Sum Amount to be paid under Section 5(c) to a Specified Employee exceeds the amount of Qualifying Severance Payments, then such excess shall be paid in a lump sum on the first day of the seventh month following the Date of Termination.  The transfer to the Executive under Section 5(e)(ii) above, and if applicable, any amount by which the payment of base salary under

 

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Section 4 of this Agreement exceeds the Executive’s base salary immediately prior to the Date of Termination due to a prior Base Salary Reduction, shall be paid on the date which is sixty (60) days following the Date of Termination if the Executive is not a Specified Employee or be paid on the first day of the seventh month following the Date of Termination if the Executive is a Specified Employee.  Notwithstanding the provisions in Section 5(b) above, in the case of a Specified Employee, the Pro Rata Bonus shall be paid on the first day of the seventh month following the Date of Termination if that is later than the date it would otherwise be paid pursuant to Section 5(b). At the time that payments are made under this Agreement, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations.

 

(i)       Coordination with Employment Agreement; Company Policy Severance Payments made under this Section 5 shall be in lieu of (i) any severance benefit payable to the Executive under the Executive’s Employment Agreement, if any, and (ii) any severance benefit payable under any severance plan or policy of the Company or any of its Subsidiaries.

 

6.      Termination Procedures and Compensation During Dispute .

 

(a)      Notice of Change in Control; Notice of Termination .  Within five (5) days after a Change in Control has occurred, the Company shall deliver to the Executive a written statement memorializing the date that the Change in Control occurred.  During the Term of this Agreement, any purported termination of the Executive’s employment (other than by reason of death) shall be communicated by written Notice of Termination from one party hereto to the other party hereto.  For purposes of this Agreement, a “ Notice of Termination ” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated.

 

(b)      Date of Termination .  “ Date of Termination ,” with respect to any purported termination of the Executive’s employment during the Term of this Agreement, shall mean (i) if the Executive’s employment is terminated for Disability, thirty (30) days after Notice of Termination is given (provided that the Executive shall not have returned to the full-time performance of the Executive’s duties during such thirty (30) day period), and (ii) if the Executive’s employment is terminated for any other reason, the date specified in the Notice of Termination (which, in the case of a termination by the Company, shall not be less than thirty (30) days (except in the case of a termination for Cause, subject to subsection (i) above) and, in the case of a termination by the Executive, shall not be less than fifteen (15) days nor more than sixty (60) days, respectively, from the date such Notice of Termination is given). For purposes of determining the date on which to make any payments described under Section 5(d), 5(f) and 5(h), and for purposes of interpreting Section 18(w), a Date of Termination shall only occur upon the Executive’s “separation from service” within the meaning of Section 409A of the Code and as

 

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determined after applying the presumptions set forth in Treas. Reg. Section 1.409A-1(h)(1).

 

7.      No Mitigation .  The Company agrees that under this Agreement, if the Executive’s employment with the Company terminates, the Executive is not required to seek other employment or to attempt in any way to reduce any amounts payable to the Executive by the Company pursuant to Section 5 of this Agreement.  Further, the amount of any payment or benefit provided for in this Agreement (other than as specifically provided in Section 5(d) of this Agreement) shall not be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company, or otherwise.

 

8.      Successors; Binding Agreement; Anti-Assignment .

 

(a)      In addition to any obligations imposed by law upon any successor to the Company, the Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in accordance with its terms.  Failure of the Company to obtain such agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Executive to compensation from the Company in the same amount and on the same terms as the Executive would be entitled to hereunder if the Executive were to terminate the Executive’s employment for Good Reason after a Change in Control, except that, for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination.

 

(b)      This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.  If the Executive shall die while any amount would still be payable to the Executive hereunder (other than amounts which, by their terms, terminate upon the death of the Executive) if the Executive had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to the executors, personal representatives or administrators of the Executive’s estate.

 

(c)      In no event shall any of the benefits payable to the Executive hereunder be subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors of the Executive or the Executive’s estate.

 

9.      Notices . For the purpose of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given (a) on the date of delivery if delivered by hand, (b) on the date of transmission, if delivered by confirmed facsimile, (c) on the first business day following the date of deposit if delivered by guaranteed overnight delivery service, or (d) on the fourth business day following the date delivered or mailed by United States registered or certified mail, return receipt requested, postage prepaid, addressed as follows:

 

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If to the Executive: at the address (or to the facsimile number) shown on the records of the Company.

 

If to the Company:  STR Holdings, Inc., 1699 King Street, Suite 400, Enfield, Connecticut 06082, Attn:  General Counsel (facsimile no. (860) 758-7301), or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.

 

10.   Obligations after the Date of Termination .

 

(a)      Confidentiality .  The Executive agrees that the Executive shall not, directly or indirectly, use, make available, sell, disclose or otherwise communicate to any person, other than in the course of the Executive’s employment and for the benefit of the Company, at any time following the Date of Termination, any nonpublic, proprietary or confidential information, knowledge or data relating to the Company, any of its subsidiaries, affiliated companies or businesses, which shall have been obtained by the Executive during the Executive’s employment by the Company. The foregoing shall not apply to information that (i) was known to the public prior to its disclosure to the Executive; (ii) becomes known to the public subsequent to disclosure to the Executive through no wrongful act of the Executive or any representative of the Executive; or (iii) the Executive is required to disclose by applicable law, regulation or legal process (provided that the Executive provides the Company with prior notice of the contemplated disclosure and reasonably cooperates with the Company at its expense in seeking a protective order or other appropriate protection of such information). Notwithstanding clauses (i) and (ii) of the preceding sentence, the Executive’s obligation to maintain such disclosed information in confidence shall not terminate where only portions of the information are in the public domain.  Unless required otherwise by law or government regulation, the parties will maintain the terms and conditions of this Agreement in confidence.

 

(b)      Non-Disparagement .  Each of the Executive and the Company (for purposes hereof, “the Company” shall mean only (i) the Company by press release or otherwise and (ii) the executive officers and directors thereof and not any other employees) agrees not to make any public statements that disparage or materially criticize the other party, or in the case of the Company, its respective affiliates, officers, directors, products or services.  Notwithstanding the foregoing, statements made in the course of sworn testimony in administrative, judicial or arbitral proceedings (including, without limitation, depositions in connection with such proceedings) or otherwise as required by law shall not be subject to this Section 10(b).

 

(c)      Return of Company Property and Records .  The Executive agrees that upon termination of the Executive’s employment, for any cause whatsoever, the Executive will surrender to the Company in good condition (reasonable wear and tear excepted) all property and equipment belonging to the Company and all records kept by the Executive containing the names, addresses or any other information with regard to customers or customer contacts of the Company, or concerning any proprietary or confidential

 

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information of the Company or any operational, financial or other documents given to the Executive during the Executive’s employment with the Company.

 

(d)      Cooperation .  The Executive agrees that, following termination of the Executive’s employment for any reason, the Executive shall upon reasonable advance notice, and to the extent it does not interfere with previously scheduled travel plans and does not unreasonably interfere with other business activities or employment obligations, assist and cooperate with the Company with regard to any matter or project in which the Executive was involved during the Executive’s employment, including any litigation. The Company shall compensate the Executive for any lost wages (or, if the Executive is not then employed, provide reasonable compensation as determined by the Compensation Committee) and expenses associated with such cooperation and assistance.

 

(e)      Assignment of Inventions .  The Executive will promptly communicate and disclose in writing to the Company all inventions and developments including software, whether patentable or not, as well as patents and patent applications (hereinafter collectively called “ Inventions ”), made, conceived, developed, or purchased by the Executive, or under which the Executive acquires the right to grant licenses or to become licensed, alone or jointly with others, which have arisen or which arise out of the Executive’s employment with the Company, or relate to any matters directly pertaining to the business of the Company or any of its subsidiaries. Included herein as if developed during the employment period is any specialized equipment and software developed for use in the business of the Company. All of the Executive’s right, title and interest in, to, and under all such Inventions, licenses, and right to grant licenses shall be the sole property of the Company. As to all such Inventions, the Executive will, upon request of the Company execute all documents which the Company deems necessary or proper to enable it to establish title to such Inventions or other rights, and to enable it to file and prosecute applications for letters patent of the United States and any foreign country; and do all things (including the giving of evidence in suits and other proceedings) which the Company deems necessary or proper to obtain, maintain, or assert patents for any and all such Inventions or to assert its rights in any Inventions not patented.

 

(f)      Equitable Relief and Other Remedies .  The parties acknowledge and agree that the other party’s remedies at law for a breach or threatened breach of any of the provisions of this Section would be inadequate and, in recognition of this fact, the parties agree that, in the event of such a breach or threatened breach, in addition to any remedies at law, the other party, without posting any bond, shall be entitled to obtain equitable relief in the form of specific performance, temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available.

 

(g)      Reformation .  If it is determined by a court of competent jurisdiction in any state that any restriction in this Section 10 is excessive in duration or scope or is unreasonable or unenforceable under the laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the law of that state.

 

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(h)               Survival of Provisions .  The obligations contained in this Section 10 shall survive the termination or expiration of the Executive’s employment with the Company and shall be fully enforceable thereafter.

 

11.        Conditions .  (a) Any payments or benefits made or provided under this Agreement are subject to the Executive’s:

 

(a)               other than as specifically provided in Section 12 of this Agreement, compliance with the provisions of Section 10 hereof;

 

(b)               delivery to the Company of an executed Agreement and General Release (the “ General Release ”), which shall be substantially in the form attached hereto as Exhibit A (with such changes therein or additions thereto as needed under then applicable law to give effect to its intent and purpose) within twenty one (21) days of presentation thereof by the Company to the Executive (which presentation shall be made by the Company no later than two (2) business days following the Date of Termination); and

 

(c)                delivery to the Company of a resignation from all offices, directorships and fiduciary positions with the Company, its affiliates and employee benefit plans with the General Release.

 

(d)               If the Executive fails to deliver the General Release to the Company, with the documentation described in subsection (c) of this Section 11, within the time specified in subsection (b) of this Section 11, or if he provides such General Release but thereafter revokes it within the seven (7) day period specified in the General Release, all benefits provided for hereunder shall be forfeited and shall not be reinstated for any reason.

 

12.        Miscellaneous .  No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by the Executive and an authorized officer of the Company (other than the Executive).  No waiver by either party hereto at any time of any breach by the other party hereto of, or of any lack of compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.  This Agreement supersedes any other agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof which have been made by either party, except for any Employee Non-Disclosure, Non-Compete and Assignment of Invention Agreement or similar agreement not to compete or similar undertaking otherwise in effect as of the Date of Termination, the terms of which shall control in the event of any conflict with the terms of this Agreement.  The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of Connecticut.  Any payments provided for hereunder shall be paid net of any applicable withholding required under federal, state or local law and any additional withholding to which the Executive has agreed.  The obligations of the Company and the Executive under this Agreement which by their nature may require either partial or total performance after its expiration shall survive any such expiration.

 

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13.        Validity; Counterparts .  The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.  This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.

 

14.        Expenses .  Except as otherwise provided in Section 5(g) of this Agreement, the Executive and the Company shall bear their own respective expenses with respect to this Agreement and all matters arising hereunder or pertaining hereto.

 

15.        Settlement of Disputes .  All claims by the Executive for benefits under this Agreement shall be directed to and determined by the Board and shall be in writing.  Any denial by the Board of a claim for benefits under this Agreement shall be delivered to the Executive in writing and shall set forth the specific reasons for the denial and the specific provisions of this Agreement relied upon.  The Board shall afford a reasonable opportunity to the Executive for a review of the decision denying a claim and shall further allow the Executive to appeal to the Board a decision of the Board within sixty (60) days after notification by the Board that the Executive’s claim has been denied.

 

16.        Arbitration .   Any further dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in Hartford, Connecticut, in accordance with the rules of the American Arbitration Association then in effect; provided, however, that the evidentiary standards set forth in this Agreement shall apply.  Judgment may be entered on the arbitrator’s award in any court having jurisdiction.  Notwithstanding any provision of this Agreement to the contrary, the Executive shall be entitled to seek specific performance of the Executive’s right to be paid until the Date of Termination during the pendency of any dispute or controversy arising under or in connection with this Agreement.

 

17.        Section 409A Compliance .  The Agreement is intended to comply with (or in some instances be exempt from) the requirements of Section 409A of the Code (and Regulations issued thereunder), and shall be interpreted and administered in a manner which is consistent with this intention.  Notwithstanding the foregoing, the Company does not guarantee any particular tax result and the Executive is responsible for payment on any taxes owed by him under this Agreement, including without limit, any taxes under Section 409A.

 

18.        Definitions .  For purposes of this Agreement, the following terms shall have the meanings indicated below:

 

(a)          Actual Bonus ” shall mean the percentage of the Executive’s annual base salary that is established with respect to the applicable year pursuant to the Company’s management incentive plan (or any successor incentive plan adopted by the Board) that the Executive would have earned assuming he continued his employment through the end of such applicable year and fully satisfied personal performance goals, if any.

 

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(b)          Affiliate ” shall have the meaning set forth in Rule 12b-2 promulgated under Section 12 of the Exchange Act.

 

(c)           Applicable Multiplier ” shall mean that multiplication factor set forth in column B of Schedule A in the event that the Date of Termination occurs other than during a Change in Control Severance Period, or column C of Schedule A in the event the Date of Termination occurs during the Change in Control Severance Period.

 

(d)          Applicable Severance Period ” shall mean the period of 12 months multiplied by the relevant Applicable Multiplier immediately following the Date of Termination.

 

(e)           Base Salary Reduction ” shall have the meaning set forth in Section 18(s)(i) of this Agreement.

 

(f)            Beneficial Owner ” shall have the meaning set forth in Rule 13d-3 and 13d-5 under the Exchange Act.

 

(g)           Board ” shall mean the Board of Directors of the Company.

 

(h)          Cause ” shall have the meaning set forth in the Executive’s Employment Agreement, if applicable, and otherwise shall mean (i) the Executive’s failure or refusal to follow the reasonable instructions of the Executive’s supervisor (or for the CEO, the Company’s Board of Directors) (other than due to Executive’s Disability), which failure or refusal is not cured within 30 days following written notice; (ii) the Executive’s conviction of a felony or of a misdemeanor if such misdemeanor involves moral turpitude or misrepresentation, including a plea of guilty or nolo contendere ; (iii) the Executive’s unlawful use (including being under the influence) or possession of illegal drugs on the Company’s or any of its Subsidiaries’ premises; (iv) the Executive’s commission of any act of fraud, embezzlement, misappropriation of funds, intentional misrepresentation, breach of fiduciary duty or other act of dishonesty materially detrimental to the Company or any of its Subsidiaries; or (v) the Executive’s intentional wrongful act or gross negligence that has a materially detrimental effect on the Company or its Subsidiaries.  For purposes of this Agreement, any termination of Executive’s employment due to Executive’s death or Disability shall be deemed a termination by the Company for Cause.

 

(i)              Change in Control ” shall mean the first to occur of any one of the following events:

 

(i)          any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing 35% or more of either (1) the total fair market value of the then outstanding shares of common stock of the Company or (2) the then outstanding securities of the Company generally entitled to vote in the election of directors of the Company, excluding any Person who becomes such a Beneficial Owner in connection with a transaction described in clause (1) of paragraph (iii) below; or

 

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(ii)         during any twelve (12) month period, individuals who, as of the beginning of such period, constitute the Board (the “ Incumbent Board ”) cease to constitute at least a majority of the Board; provided, that any person becoming a director of the Company subsequent to the beginning of such period whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of the Company and whose appointment or election was not approved by at least a majority of the directors of the Company in office immediately before any such contest, or

 

(iii)        there is consummated a merger or consolidation of the Company with any other business entity, other than (1) a merger or consolidation which would result in the securities of the Company generally entitled to vote in the election of directors of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into such securities of the surviving entity or any parent thereof), in combination with the ownership of any trustee or other fiduciary holding such securities under an employee benefit plan of the Company or any Subsidiary of the Company, at least 50.1% of the securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation and generally entitled to vote in the election of directors of the Company or such surviving entity or any parent thereof, or (2) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing 50.1% or more of the then outstanding securities of the Company generally entitled to vote in the election of directors of the Company; or

 

(iv)        the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated the sale or disposition by the Company of all or substantially all of the Company’s assets, other than a sale or disposition by the Company of all or substantially all of the Company’s assets to an entity where the outstanding securities generally entitled to vote in the election of directors of the Company immediately prior to the sale continue to represent (either by remaining outstanding or by being converted into such securities of the surviving entity or any parent thereof) 50.1% or more of the outstanding securities of such entity generally entitled to vote in the election of directors immediately after such sale; or

 

(v)         any other event which the Board of Directors declares to be a Change in Control.

 

12



 

(j)             Change in Control Severance Period ” shall mean the period commencing ninety (90) days prior to the execution of any definitive purchase and sale, merger or other acquisition agreement resulting in a Change in Control through the first anniversary following the closing of such Change in Control, or, in the case of any other type of Change in Control, the period of one (1) year beginning on the date of the occurrence of such Change in Control through the first anniversary thereof.

 

(k)          Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time and Regulations issued thereunder.

 

(l)              Company ” shall mean [STR Holdings, Inc.] , and, except in determining under Section 18(i) hereof whether or not any Change in Control of the Company has occurred, shall include any successor to its business and/or assets.

 

(m)      Date of Termination ” shall have the meaning set forth in Section 6(b) of this Agreement.

 

(n)          Disability ” shall have the meaning set forth in the Employment Agreement between the Executive and the Company, if any, and otherwise shall be deemed the reason for the termination by the Company of the Executive’s employment, if, as a result of the Executive’s incapacity due to physical or mental illness, the Executive shall have been absent from the full-time performance of the Executive’s duties with the Company for a period of six (6) consecutive months, the Company shall have given the Executive a Notice of Termination for Disability, and, within thirty (30) days after such Notice of Termination is given, the Executive shall not have returned to the full-time performance of the Executive’s duties.

 

(o)          Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended from time to time.

 

(p)          Executive ” shall mean the individual named in the first paragraph of this Agreement.

 

(q)          Executive’s Position ” shall mean the position held by the Executive as set forth in column A of Schedule A.

 

(r)             General Release” shall have the meaning set forth in Section 11(b) of this Agreement.

 

(s)            Good Reason ” for termination by the Executive of the Executive’s employment shall mean the occurrence (without the Executive’s express written consent) during the Term of this Agreement, of any one of the following acts by the Company, or failures by the Company to act.  As set forth below, subsection (i) contains the elements of Good Reason, and subsection (ii) sets forth certain terms and conditions applicable to termination by the Executive for Good Reason;

 

(i)                                      (A)           (1)  A material diminution in the nature or status of the Executive’s responsibilities from those in effect immediately prior to such diminution resulting from, among other things, (1) the assignment

 

13



 

to the Executive of any duties inconsistent with the Executive’s duties and the Executive’s Position, immediately prior to such assignment, or (2) during a Change in Control Severance Period, the failure of the Company to ensure that the Executive maintains substantially the same duties and position during such Change in Control Severance Period, with the Company and each other entity that may then be a direct or indirect parent of the Company owning directly or indirectly a majority of the outstanding capital stock of the Company, as the Executive was assigned or held immediately prior to such Change in Control Severance Period;

 

(B)                                A material reduction by the Company, during the period of one (1) year immediately prior to the Date of Termination, in either or both of (1) the Executive’s annual base salary (a “Base Salary Reduction”); or (2) the target bonus percentage set forth in the Company’s management incentive plan, in each case as in effect on the date of this Agreement or as the same may be increased from time to time;

 

(C)                                The relocation of the Executive’s principal place of employment to a location more than (fifty) 50 miles from the Executive’s principal place of employment immediately prior to such relocation or the Company’s requiring the Executive to be based anywhere other than such principal place of employment (or permitted relocation thereof) except for required travel on the Company’s business to an extent substantially consistent with the Executive’s business travel obligations immediately prior thereto;

 

(D)                                The failure by the Company to pay to the Executive any portion of the Executive’s current compensation, or to pay to the Executive any portion of an installment of deferred compensation under any deferred compensation program of the Company, within thirty (30) days of the date such compensation is due;

 

(E)                                 The failure by the Company to continue in effect any material compensation plan in which the Executive participates immediately prior to such failure which is material to the Executive’s total compensation, unless an equitable arrangement (embodied in an ongoing substitute or alternative plan) has been made with respect to such plan, or the failure by the Company to continue the Executive’s participation therein (or in such substitute or alternative plan) on a basis not materially less favorable, both in terms of the amount or timing of payment of benefits provided and the level of the Executive’s participation relative to other participants, as existed immediately prior to such failure;

 

14



 

(F)                                  The failure by the Company to continue to provide the Executive with benefits substantially similar to those enjoyed by the Executive under any of the Company’s benefit plans, including without limitation, life insurance, health and accident, or disability plans in which the Executive was participating immediately prior to such failure, the taking of any other action by the Company which would directly or indirectly materially reduce any of such benefits or deprive the Executive of any material fringe benefit enjoyed by the Executive immediately prior to such action, or the failure by the Company to provide the Executive with the number of paid vacation days to which the Executive is entitled on the basis of years of service with the Company in accordance with the Company’s normal vacation policy in effect at the time of such failure; or

 

(G)                                Any material breach by the Company of the Executive’s Employment Agreement.

 

(ii)            (A)          For purposes of this Agreement, any purported termination of the Executive’s employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 6(a) of this Agreement shall not be effective.

 

(B)                                The Executive’s right to terminate the Executive’s employment for Good Reason shall not be affected by the Executive’s incapacity due to physical or mental illness.

 

(C)                                For purposes of any determination regarding the existence of Good Reason, any claim by the Executive that Good Reason exists shall be presumed to be correct unless the Company establishes to the Board by clear and convincing evidence that Good Reason does not exist.

 

(D)                                Notwithstanding any provision of this Section 18(r) to the contrary, none of the foregoing provisions of this Section 18(r) shall constitute Good Reason unless (A) no later than ninety (90) days following the occurrence of any of the events set forth in Section 18(r)(i) above, the Executive provides written notice to the Company of such event containing a description thereof and stating the subsection of Section 18(r)(i) above under which such event constitutes Good Reason (the “Good Reason Notice”) and the Company shall not have cured such event within thirty (30) days following its receipt of such notice, and (B) no later than one hundred eighty (180) days, but no earlier than thirty (30) days, following the Company’s receipt of such Good Reason Notice, the Executive gives the Company a Notice of Termination satisfying

 

15



 

the requirements of Section 6(a) of this Agreement with respect to the event constituting Good Reason described in such Good Reason Notice.

 

(t)             Incumbent Board ” shall have the meaning set forth in Section 18(h)(ii) of this Agreement.

 

(u)          Lump Sum Amount ” shall have the meaning set forth in Section 5(c) of this Agreement.

 

(v)          “Notice of Termination ” shall have the meaning set forth in Section 6(a) of this Agreement.

 

(w)        “Periodic Payments” shall have the meaning set forth in Section 5(b) of this Agreement.

 

(x)          Person ” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the Company or any of its direct or indirect Subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, (iv) or a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions and with substantially the same voting rights as their ownership and voting rights with respect to the Company.

 

(y)          Pro Rata Bonus ” shall have the meaning set forth in Section 5(b) of this Agreement.

 

(z)           Qualifying Severance Payments” shall mean Severance Payments that, in the aggregate, do not exceed two times the lesser of (i) the Executives annual rate of base salary for the taxable year immediately preceding the year during which the Date of Termination occurs, determined in accordance with Section 1.409A-1(a)(9)(iii)(A)(1) of the Regulations under Code Section 409A, or (ii) the limit under the Code Section 401(a)(17) on compensation under a qualified retirement plan for the year in which the Date of Termination occurs.

 

(aa)   Qualifying Termination ” shall have the meaning set forth in Section 5(a) of this Agreement.

 

(bb)   Severance Payments ” shall have the meaning set forth in Section 5(a) of this Agreement.

 

(cc)     “Specified Employee” shall have the meaning as defined in Section 409A of the Code and Section 1.409A-1(i) of the Regulations issued under the Code.

 

(dd)   Subsidiary ” shall mean any corporation of which the Company owns, directly or indirectly, a majority of securities entitled to vote in the election of directors.

 

(ee)     Target Bonus ” shall mean the percentage of the Executive’s annual base salary that is established with respect to the applicable year pursuant to the Company’s management

 

16



 

incentive plan (or any successor incentive plan adopted by the Board) calculated as if the performance of the Executive meets the Executive’s Target performance amount with respect to all performance objectives (irrespective of actual performance).

 

(ff)       Target Bonus Amount ” shall have the meaning set forth in Section 5(c) of this Agreement.

 

(gg)     Term ” shall mean the period of time described in Section 2 of this Agreement.

 

17



 

IN WITNESS WHEREOF , the parties have executed this agreement as of the date and year first above written.

 

 

[STR HOLDINGS, INC.]

 

 

 

 

 

By:

 

 

 

Name:Robert S. Yorgensen

 

 

Title:  President & Chief Executive Officer

 

 

 

 

 

THE EXECUTIVE

 

 

 

 

 

 

 

Name:

 

 

 

Address:

 

 

 

 

 

 

 

 

 

18



 

Exhibit A

 

FORM OF AGREEMENT AND GENERAL RELEASE

 

This Agreement and General Release (“Release”) is entered into by and between STR HOLDINGS, INC. (“Company”) and                          (“Executive”) to resolve any and all disputes concerning his employment with Company and his separation from employment on                         . Accordingly, in exchange for the consideration and mutual promises set forth herein, the parties do hereby agree as follows:

 

1.                      Effective close of business on                         , Executive’s employment with Company will terminate, and all salary continuation and benefits will cease other than those to which Executive is entitled in consideration for this Release as set forth in Executive’s Change in Control Agreement with Company (“Agreement”), which is incorporated by reference, and as a matter of law (e.g., COBRA benefits).

 

2.                      In consideration for Executive’s executing this Release of any and all legal claims he might have against the STR Parties (as defined below), subject to the exceptions set forth herein, and the undertakings described herein, and to facilitate his transition to other employment, Company agrees to provide Executive with the compensation and severance payments consideration detailed in Sections 4 and 5 of the Agreement.

 

3.                      Neither Company nor Executive admits any wrongdoing of any kind, and both agree that neither they nor anyone acting on their behalf will disclose this Release, or its terms and conditions. Notwithstanding the foregoing, Executive is not barred from disclosing this Release to his legal, financial and personal advisors or to those persons essential for Executive to (a) implement or enforce his rights under this Release and the Agreement in which the Release is incorporated; (b) defend himself in a lawsuit, investigation or administrative proceeding; (c) file tax returns; or (d) advise a prospective employer, business partner or insurer of the contractual restrictions on his post-Company employment.

 

4.                      In exchange for the undertakings by Company described in the above paragraphs:

 

a.                                        Executive, for himself, his heirs, executors, administrators and assigns, does hereby release, acquit and forever discharge Company, its subsidiaries, affiliates and related entities, as well as all of their respective officers, stockholders, stockholder representatives, directors, members, partners, trustees, employees, attorneys, representatives and agents (collectively, the “STR Parties”), from any and all claims, demands, actions, causes of action, liabilities, obligations, covenants, contracts, promises, agreements, controversies, costs, expenses, debts, dues, or attorneys’ fees of every name and nature, whether known or unknown, without limitation, at law, in equity or administrative, against the STR Parties that he may have had, now has or may have against the STR Parties by reason of any matter or thing arising from the beginning of the world to the day and date of this Release, including any claim relating to the termination of his employment with any STR Party. Those claims, demands, liabilities and obligations from which Executive releases the STR Parties include, but are not limited to, any claim, demand or action, known or unknown, arising out of any transaction, act or omission related to Executive’s employment by any STR Party and Executive’s separation from such employment, sounding in tort or contract and/or any cause of action arising

 



 

under federal, state or local statute or ordinance or common law, including, but not limited to, the federal Age Discrimination In Employment Act of 1967, Title VII of the Civil Rights Act of 1964, as amended, the Americans With Disabilities Act, the Family and Medical Leave Act, the Equal Pay Act, the Worker Adjustment and Retraining Notification Act, the Fair Labor Standards Act, the Connecticut Civil Rights Law, as well as any similar state or local statute(s), in each case as any such law may be amended from time to time and any claims to have been or to be considered as a “whistleblower” or other protected person under Federal or state law, including Section 806 of the Corporate and Criminal Fraud Accountability Act. The foregoing shall, in accordance with applicable law, not prohibit or prevent Executive from filing a charge with the United States Equal Employment Opportunity Commission (“EEOC”) and/or any state or local agency equivalent, and/or prohibit or prevent Executive from participating in any investigation of any charge filed by others, albeit that he understands and agrees that he shall not be entitled to seek monetary compensation for himself from the filing and/or participation in any such charge.  This Release does not apply to:  (i) any exculpatory provision or right to indemnification or contribution under the Company’s Certificate of Incorporation or Bylaws or under any federal or state law, or under any Indemnification Agreement with the Company or related to any directors’ and officers’ insurance policy maintained by the Company for the benefit of its officers and directors; (ii) any rights to the receipt of employee benefits which vested on or prior to the date of this Release; (iii) the right to receive compensation and severance payments consideration detailed in Sections 4 and 5 of the Agreement, the right to reimbursement of expenses under Section 5(g)of the Agreement, and any other rights of Executive under the Agreement which expressly survive termination; (iv) the right to continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act; or (v) any rights of Executive as a stockholder of the Company or attendant to Executive’s ownership of any stock options or other equity securities in the Company or its successors or assigns and any options or warrants related thereto or under any stock option plan or other equity incentive plan of the Company and any award agreements related thereto.

 

b.                                        Executive expressly acknowledges that his attorney has advised him regarding, and he is familiar with the fact that certain state statutes provide that general releases do not extend to claims that the releaser does not know or suspect to exist in his favor at the time he executes such a release, which if known to him may have materially affected his execution of the release. Being aware of such statutes, Executive hereby expressly waives and relinquishes any rights or benefits he may have under such statutes, as well as any other state or federal statutes or common law principles of similar effect, and hereby acknowledges that no claim or cause of action against any STR Party shall be deemed to be outside the scope of this Release whether mentioned herein or not.

 

c.                                         Executive hereby acknowledges that he is executing this Release pursuant to the Agreement, and that the compensation and severance consideration to be provided to Executive pursuant to Sections 4 and 5 of the Agreement is in addition to what he would have been entitled to receive in the absence of this Release. Executive hereby acknowledges that he is executing this Release voluntarily and with full knowledge of all relevant information and any and all rights he may have. Executive hereby acknowledges that he has been advised to consult with an independent attorney of his own choosing in connection with this Release to explain to him the legal effect of the terms and conditions

 



 

of this Release and that Executive has consulted such an attorney for such purpose. Executive acknowledges that he has read this Release in its entirety. Executive further states that he fully understands the terms of this Release and that the only promises made to him in return for signing this Release are stated herein and in the Agreement in which this Release is incorporated.  Executive hereby acknowledges that he is voluntarily and knowingly agreeing to the terms and conditions of this Release without any threats, coercion or duress, whether economic or otherwise, and that Executive agrees to be bound by the terms of this Release. Executive acknowledges that he has been given at least twenty-one (21) days to consider this Release, and that if Executive is age forty (40) or over, Executive understands that he has seven (7) days following his execution of this Release in which to revoke his agreement to comply with this Release by providing written notice of revocation to the Vice President of Human Resources of the Company.

 

d.                                        Executive further hereby covenants and agrees that this General Release shall be binding in all respects upon himself, his heirs, executors, administrators, assigns and transferees and all persons claiming under them, and shall inure to the benefit of all of the officers, directors, agents, employees, stockholders, members and partners and successors in interest of Company, as well as all parents, subsidiaries, affiliates, related entities and representatives of any of the foregoing persons and entities.

 

e.                                         Executive agrees that he will not disparage or materially criticize any STR Parties or make or publish any communication that reflects adversely upon any of them, including communications concerning the Company itself and its current or former directors, officers, employees or agents.

 

5.                      If any provision of this Release is found to be invalid, unenforceable or void for any reason, such provision shall be severed from the Release and shall not affect the validity or enforceability of the remaining provisions.  This Release shall be interpreted, enforced and governed by the laws of the State of Connecticut, without regard to the choice of law principles thereof.

 



 

IN WITNESS WHEREOF, I have signed this General Release this      day of                                                           , 201    .

 

 

 

By:

 

 

 

 

 

 

Name:

 

 

Subscribed and sworn to before me this      day of                     , 201    .

 

 

 

 

 

Notary Public

 

My Commission Expires                                       

 



 

SCHEDULE A

 

Applicable Multipliers During Severance Periods

 

(A)
Name/Position

 

(B)
Applicable Multiplier
(Not During Change
in Control Severance
Period)

 

(C)
Applicable Multiplier
(During Change in
Control Severance
Period)

 

 

 

1.0

 

1.25

 

 


Exhibit 10.3

 

[Executive Form]

10/1/12

 

STR HOLDINGS, INC.
2009 Equity Incentive Plan

 

NONQUALIFIED STOCK OPTION AWARD AGREEMENT

 

THIS AGREEMENT (the “Award Agreement”) is made effective as of [                          ] (the “Date of Grant”) between STR Holdings, Inc., a Delaware corporation (with any successor, the “Company”), and [                  ] (the “Participant”):

 

R   E C I T A L S :

 

WHEREAS, the Company has adopted the STR Holdings, Inc. 2009 Equity Incentive Plan (the “Plan”), which Plan is incorporated herein by reference and made a part of this Award Agreement.  Capitalized terms not otherwise defined herein shall have the same meanings as in the Plan; and

 

WHEREAS, the Committee has determined that it would be in the best interests of the Company and its stockholders to grant the option provided for herein to the Participant pursuant to the Plan and the terms set forth herein.

 

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

 

1.                                       Grant of the Option .  The Company hereby grants to the Participant the right and option (the “Option”) to purchase, on the terms and conditions hereinafter set forth, all or any part of an aggregate of [                  ] Shares, subject to adjustment as set forth in the Plan.  The Option is intended to be a nonqualified stock option, and is not intended to be treated as an option that complies with Section 422 of the Internal Revenue Code of 1986, as amended.

 

2.                                       Option Price .  The purchase price of the Shares subject to the Option shall be $[        ] per Share (the “Option Price”), subject to adjustment as set forth in the Plan.

 

3.                                       Vesting   Subject to the Participant’s continued Service on each vesting date, the Option shall vest (subject to accelerated vesting set forth in Sections 4 or 5 below) on each anniversary of the Date of Grant as follows: (i) twenty five (25%) of the Shares shall vest on the first anniversary of the Date of Grant; (ii) twenty five (25%) of the Shares shall vest on the second anniversary of the Date of Grant; and (iii) fifty (50%) of the Shares shall vest on the third anniversary of the Date of Grant.

 

At any time, the portion of the Option which has become vested is hereinafter referred to as the “Vested Portion.”  The Vested Portion of the Option shall remain exercisable for the period set forth in Section 6.

 

4.                                       Change of Control.   Upon the occurrence of a Change of Control, any outstanding portion of the Option, to the extent not previously cancelled or forfeited, that is not (i) assumed by the Company (if it is the surviving company or corporation) or by the surviving company or corporation or its parent or (ii) substituted by the surviving company or corporation or its parent with a stock option with substantially the same terms as the Option, shall, to the extent unvested, immediately vest in full, so long as the Participant’s Service has not been terminated before the commencement of the Change of Control Period (as hereinafter defined).

 



 

For purposes of this Section 4, (x) the Option shall not be considered assumed if following any such assumption (or proposed assumption) the shares of stock underlying the Option are not (or would not be) publicly traded on the New York Stock Exchange (“NYSE”), NASDAQ or another established securities market and (y) substitution of the Option with a stock option to purchase shares of stock which are not publicly traded on the NYSE, NASDAQ or another established securities market will result in a failure of the Option to be considered substituted with a stock option with substantially similar terms.

 

5.                                       Forfeiture .

 

(a)                                  If the Participant’s Service is terminated by the Participant for Good Reason or by the Company without Cause, the unvested portion of the Option, to the extent not previously cancelled or forfeited, that would have vested had the Participant been employed for an additional twelve (12) months from the date of termination of employment shall vest immediately upon such date of termination; provided however, in the event that the Participant’s Service is terminated by the Participant for Good Reason or by the Company without Cause, during the Change of Control Period (as hereinafter defined), the unvested portion of the Option to the extent not previously cancelled or forfeited, shall vest immediately upon such date of termination.  Thereafter, the Option shall, to the extent not then vested, be cancelled by the Company without consideration and the Vested Portion of the Option shall remain exercisable for the period set forth in Section 6.

 

(b)                                  If the Participant’s Service is terminated for any reason other than pursuant to clause 5(a) above, the Option shall, to the extent not then vested, be cancelled by the Company without consideration and the Vested Portion of the Option shall remain exercisable for the period set forth in Section 6.

 

6.                                       Exercise of Option .

 

(a)                                  Period of Exercise .  Subject to the provisions of the Plan and this Award Agreement, the Participant may exercise all or any part of the Vested Portion of the Option at any time prior to the earliest to occur of:

 

(i)                                      the tenth anniversary of the Date of Grant;

 

(ii)                                   the date that is ninety (90) days following termination of the Participant’s Service for any reason other than death, Permanent Disability or Cause;

 

(iii)                                the date that is one (1) year following termination of the Participant’s Service due to death or Permanent Disability;

 

(iv)                               the date of termination of the Participant’s Service due to Cause.

 

(b)                                  Method of Exercise .

 

(i)                                      Subject to Section 4, the Vested Portion of the Option may be exercised by delivering to the Company at its principal office written notice of intent to so exercise; provided that the Option may be exercised with respect to whole Shares only.  Such notice shall specify the number of Shares for which the Option is being exercised and shall be accompanied by payment in full of the Option Price.  In the event the Option is

 

2



 

being exercised by the Participant’s representative, the notice shall be accompanied by proof (satisfactory to the Committee) of the representative’s right to exercise the Option.  The payment of the Option Price may be made at the election of the Participant (A) in cash or its equivalent (e.g., by cashier’s check), (B) to the extent permitted by the Committee, in Shares having a Fair Market Value equal to the aggregate Option Price for the Shares being purchased and satisfying such other requirements as may be imposed by the Committee, (C) partly in cash and, to the extent permitted by the Committee, partly in such Shares, (D) by reducing the number of Shares otherwise deliverable upon the exercise of the Option by the number of Shares having a Fair Market Value equal to the Option Price, or (E) if there is a public market for the Shares at such time, subject to such requirements as may be imposed by the Committee, through the delivery of irrevocable instructions to a broker to sell Shares obtained upon the exercise of the Option and to deliver promptly to the Company an amount out of the proceeds of such sale equal to the aggregate Option Price for the Shares being purchased.  The Committee may prescribe any other method of payment that it determines to be consistent with applicable law.  Neither the Participant nor the Participant’s representative shall have any rights to dividends or other rights of a stockholder with respect to Shares subject to an Option until the Participant has given written notice of exercise of the Option, paid in full for such Shares and, if applicable, has satisfied any other conditions imposed by the Committee pursuant to the Plan.

 

(ii)                                   Notwithstanding any other provision of the Plan or this Award Agreement to the contrary, the Option may not be exercised prior to the completion of any registration or qualification of the Option or the Shares under applicable securities or other laws, or under any ruling or regulation of any governmental body or national securities exchange that the Committee shall in its sole discretion determine to be necessary or advisable.

 

(iii)                                Upon the Company’s determination that the Option has been validly exercised as to any of the Shares, the Company shall issue certificates in the Participant’s name for such Shares.  However, the Company shall not be liable to the Participant for damages relating to any delays in issuing the certificates to him, any loss of the certificates, or any mistakes or errors in the issuance of the certificates or in the certificates themselves.

 

(iv)                               In the event of the Participant’s death, the Vested Portion of the Option shall remain exercisable during the period set forth in Section 6 by the Participant’s executor or administrator, or the person or persons to whom the Participant’s rights under this Award Agreement shall pass by will or by the laws of descent and distribution as the case may be.  Any heir or legatee of the Participant shall take rights herein granted subject to the terms and conditions hereof.

 

7.                                       No Right to Continued Service .  The granting of the Option evidenced hereby and this Award Agreement shall impose no obligation on the Company or any Affiliate to continue the Service of the Participant and shall not lessen or affect any right that the Company or any Affiliate may have to terminate the Service of such Participant.

 

8.                                       Securities Laws/Legend on Certificates .  The issuance and delivery of Shares shall comply with all applicable requirements of law, including (without limitation) the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder, state

 

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securities laws and regulations, and the regulations of any stock exchange or other securities market on which the Company’s securities may then be traded.  If the Company deems it necessary to ensure that the issuance of securities under the Plan is not required to be registered under any applicable securities laws, each Participant to whom such security would be issued shall deliver to the Company an agreement or certificate containing such representations, warranties and covenants as the Company may deem necessary which satisfies such requirements. The certificates representing the Shares shall be subject to such stop transfer orders and other restrictions as the Committee may deem reasonably advisable, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.

 

9.                                       Transferability .  The Option may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant other than by will or by the laws of descent and distribution, and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or any Affiliate; provided that the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance.  No such permitted transfer of the Option to heirs or legatees of the Participant shall be effective to bind the Company unless the Committee shall have been furnished with written notice thereof and a copy of such evidence as the Committee may deem necessary to establish the validity of the transfer and the acceptance by the transferee or transferees of the terms and conditions hereof.  During the Participant’s lifetime, the Option is exercisable only by the Participant.

 

10.                                Adjustment of Option .  Adjustments to the Option (or any of the Shares underlying the Option) shall be made in accordance with the terms of the Plan.

 

11.                                Definitions .  For purposes of this Award Agreement:

 

“Cause” shall have the meaning set forth in the Participant’s employment agreement with the Company or any of its Subsidiaries, if applicable, and otherwise shall mean (i) the Participant’s failure or refusal to follow the reasonable instructions of the Participant’s supervisor (or for the CEO, the Company’s Board of Directors) (other than due to the Participant’s Permanent Disability), which failure or refusal is not cured within thirty (30) days following written notice; (ii) the Participant’s conviction of a felony or of a misdemeanor if such misdemeanor involves moral turpitude or misrepresentation, including a plea of guilty or nolo contendere; (iii) the Participant’s unlawful use (including being under the influence) or possession of illegal drugs on the Company’s or any of its Subsidiaries’ premises; (iv) the Participant’s commission of any act of fraud, embezzlement, misappropriation of funds, intentional misrepresentation, breach of fiduciary duty or other act of dishonesty materially detrimental to the Company or any of its Subsidiaries; or (v) the Participant’s intentional wrongful act or gross negligence that has a materially detrimental effect on the Company or its Subsidiaries.

 

“Change of Control Period” shall mean the period commencing ninety (90) days prior to the execution of any definitive purchase and sale, merger or other acquisition agreement resulting in a Change of Control through the first anniversary following the closing of such Change of Control, or, in the case of any other type of Change of Control, the period of one (1) year beginning on the date of the occurrence of such Change of Control through the first anniversary thereof.

 

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“Good Reason” for termination by the Participant of the Participant’s Service shall have the meaning set forth in the Participant’s employment agreement with the Company or any of its Subsidiaries, if applicable, and otherwise shall mean the occurrence (without the Participant’s express written consent), of any one of the following acts by the Company, or failures by the Company to act.  As set forth below, subsection (i) contains the elements of Good Reason, and subsection (ii) sets forth certain terms and conditions applicable to termination by the Participant for Good Reason;

 

(i)                                      (A)           A material diminution in the nature or status of the Participant’s responsibilities from those in effect immediately prior to such diminution resulting from, among other things, (1) the assignment to the Participant of any duties inconsistent with the Participant’s duties and the Participant’s position, immediately prior to such assignment, or (2) during the Change of Control Period, the failure of the Company to ensure that the Participant maintains substantially the same duties and position during such period, with the Company and each other entity that may then be a direct or indirect parent of the Company owning directly or indirectly a majority of the outstanding capital stock of the Company, as the Participant was assigned or held immediately prior to the Change of Control Period;

 

(B)           A material reduction by the Company, during the period of one (1) year immediately prior to the date of the Participant’s termination of Service, in either or both of (1) the Participant’s annual base salary; or (2) the target bonus percentage set forth in the Company’s management incentive plan, in each case as in effect on the date of this Award Agreement or as the same may be increased from time to time;

 

(C)           The relocation of the Participant’s principal place of Service to a location more than fifty (50) miles from the Participant’s principal place of employment immediately prior to such relocation or the Company’s requiring the Participant to be based anywhere other than such principal place of employment (or permitted relocation thereof) except for required travel on the Company’s business to an extent substantially consistent with the Participant’s business travel obligations immediately prior thereto;

 

(D)           The failure by the Company to pay to the Participant any portion of the Participant’s current compensation, or to pay to the Participant any portion of an installment of deferred compensation under any deferred compensation program of the Company, within thirty (30) days of the date such compensation is due;

 

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(E)            The failure by the Company to continue in effect any material compensation plan in which the Participant participates immediately prior to such failure which is material to the Participant’s total compensation, unless an equitable arrangement (embodied in an ongoing substitute or alternative plan) has been made with respect to such plan, or the failure by the Company to continue the Participant’s participation therein (or in such substitute or alternative plan) on a basis not materially less favorable, both in terms of the amount or timing of payment of benefits provided and the level of the Participant’s participation relative to other participants, as existed immediately prior to such failure;

 

(F)            The failure by the Company to continue to provide the Participant with benefits substantially similar to those enjoyed by the Participant under any of the Company’s benefit plans, including without limitation, life insurance, health and accident, or disability plans in which the Participant was participating immediately prior to such failure, the taking of any other action by the Company which would directly or indirectly materially reduce any of such benefits or deprive the Participant of any material fringe benefit enjoyed by the Participant immediately prior to such action, or the failure by the Company to provide the Participant with the number of paid vacation days to which the Participant is entitled on the basis of years of service with the Company in accordance with the Company’s normal vacation policy in effect at the time of such failure; or

 

(G)                                Any material breach by the Company of the Participant’s employment agreement with the Company or any of its Subsidiaries.

 

(ii)                                   (A)                                For purposes of this Award Agreement, any purported termination of the Participant’s Service which is not effected pursuant to a written notice of termination indicating the specific termination provision relied upon (e.g., Cause, death, etc.) and setting forth in reasonable detail the facts and circumstances claimed to provide a basis for such a termination shall not be effective.

 

(B)           The Participant’s right to terminate the Participant’s Service for Good Reason shall not be affected by the Participant’s incapacity due to physical or mental illness.

 

(C)                                For purposes of any determination regarding the existence of Good Reason, any claim by the Participant that Good Reason exists shall be presumed to be correct unless the Company

 

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establishes to the Board by clear and convincing evidence that Good Reason does not exist.

 

(D)                                Notwithstanding any provision of this definition of Good Reason to the contrary, none of the foregoing provisions of this definition of Good Reason shall constitute Good Reason unless (1) no later than ninety (90) days following the occurrence of any of the events set forth in subsection (i) of this definition of Good Reason above, the Participant provides written notice to the Company of such event containing a description thereof and stating the subsection of subsection (i) of this definition of Good Reason above under which such event constitutes Good Reason (the “Good Reason Notice”) and the Company shall not have cured such event within thirty (30) days following its receipt of such notice, and (2) no later than one hundred eighty (180) days, but no earlier than thirty (30) days, following the Company’s receipt of such Good Reason Notice, the Participant gives the Company written notice of the Participant’s intent to terminate Service due to the occurrence of the event constituting Good Reason described in such Good Reason Notice.

 

“Permanent Disability” shall have the meaning set forth in the Participant’s employment agreement with the Company or its Affiliates, if any, or if the Participant is not a party to an employment agreement with a definition of “Permanent Disability,” then “Permanent Disability” means any physical or mental disability rendering the Participant unable to perform his or her duties for a period of at least one hundred twenty (120) days out of any twelve (12) month period, as determined by a doctor approved by the Company.

 

“Share” means a share of common stock of the Company or such other class or kind of shares or other securities resulting from the application of Section 12.1 of the Plan.

 

12.                                Withholding .  The Participant may be required to pay to the Company or any Affiliate and the Company shall have the right and is hereby authorized to withhold, any applicable withholding taxes in respect of the Option, its exercise or any payment or transfer under or with respect to the Option and to take such other action as may be necessary in the opinion of the Committee to satisfy all obligations for the payment of such withholding taxes.

 

13.                                Notices . Any notification required by the terms of this Award Agreement shall be given in writing and shall be deemed effective upon personal delivery or within three (3) days of deposit with the United States Postal Service, by registered or certified mail, with postage and fees prepaid.  A notice shall be addressed to the Company, Attention: Secretary, at its principal executive office and to the Participant at the address that he or she most recently provided to the Company.

 

14.                                Entire Agreement .  This Award Agreement and the Plan constitute the entire contract between the parties hereto with regard to the subject matter hereof.  They supersede any other agreements, representations or understandings (whether oral or written and whether express or implied) which relate to the subject matter hereof.

 

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15.                                Waiver .  No waiver of any breach or condition of this Award Agreement shall be deemed to be a waiver of any other or subsequent breach or condition whether of like or different nature.

 

16.                                Successors and Assigns .  The provisions of this Award Agreement shall inure to the benefit of, and be binding upon, the Company and its successors and assigns and upon the Participant, the Participant’s assigns and the legal representatives, heirs and legatees of the Participant’s estate, whether or not any such person shall have become a party to this Award Agreement and agreed in writing to be joined herein and be bound by the terms hereof.

 

17.                                Choice of Law; Jurisdiction; Waiver of Jury Trial THIS AWARD AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF DELAWARE WITHOUT REGARD TO CONFLICTS OF LAWS.

 

SUBJECT TO THE TERMS OF THIS AWARD AGREEMENT, THE PARTIES AGREE THAT ANY AND ALL ACTIONS ARISING UNDER OR IN RESPECT OF THIS AWARD AGREEMENT SHALL BE LITIGATED IN THE FEDERAL OR STATE COURTS IN DELAWARE.  BY EXECUTING AND DELIVERING THIS AWARD AGREEMENT, EACH PARTY IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION OF SUCH COURTS FOR ITSELF, HIMSELF OR HERSELF AND IN RESPECT OF ITS, HIS OR HER PROPERTY WITH RESPECT TO SUCH ACTION.  EACH PARTY AGREES THAT VENUE WOULD BE PROPER IN ANY OF SUCH COURTS, AND HEREBY WAIVES ANY OBJECTION THAT ANY SUCH COURT IS AN IMPROPER OR INCONVENIENT FORUM FOR THE RESOLUTION OF ANY SUCH ACTION.

 

EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AWARD AGREEMENT.

 

18.                                Option Subject to Plan .  By entering into this Award Agreement the Participant agrees and acknowledges that the Participant has received and read a copy of the Plan.  The Option is subject to the Plan.  The terms and provisions of the Plan as it may be amended from time to time are hereby incorporated herein by reference (subject to the limitation set forth in Section 19).  In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail.  The Participant has had the opportunity to retain counsel, and has read carefully, and understands, the provisions of the Plan and the Award Agreement.

 

19.                                Amendment .  The Committee may amend or alter this Award Agreement and the Option granted hereunder at any time; provided that, subject to Articles 11, 12 and 13 of the Plan, no such amendment or alteration shall be made without the consent of the Participant if such action would materially diminish any of the rights of the Participant under this Award Agreement or with respect to the Option.

 

20.                                Severability . The provisions of this Award Agreement are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.

 

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21.                                Signature in Counterparts .  This Award Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

 

[ SIGNATURE PAGE FOLLOWS ]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Award Agreement.

 

 

 

STR HOLDINGS, INC.

 

 

 

 

 

 

 

 

By:

 

 

 

 

Name: Robert S. Yorgensen

 

 

 

Title:    President and Chief Executive Officer

 

 

 

 

 

 

Agreed and acknowledged as of the date first above written:

 

 

 

 

 

 

 

 

 

 

 

PARTICIPANT