EXHIBIT 10.16
PARTNERSHIP SUBSCRIPTION AGREEMENT
THIS PARTNERSHIP SUBSCRIPTION AGREEMENT (this "Agreement") is entered into as
of March 29, 1996 by and among PMT CVD Partners, L.P., a California limited
partnership (the "Partnership"), and ________________ (the "Investor").
R E C I T A L S:
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A. The Partnership was recently formed and will be governed in
accordance with the terms and conditions of that certain Agreement of Limited
Partnership dated as of an even date herewith (the "Partnership Agreement") and
entered into by and among the Partnership, the Investor and certain other
investors in the Partnership.
B. The Investor wishes (i) to invest the amount of capital set forth
opposite its name on the signature page hereto (the "Investor's Capital
Investment") and (ii) to subscribe for and acquire Interests, in each case
pursuant to the terms of the Partnership Agreement. To induce the Investor to
make such capital investment, CVD, Inc., a California corporation and the
general partner of the Partnership (the "General Partner"), has agreed to make
the representations and warranties set forth herein.
C. The Company wishes to facilitate the investment by Investor in the
Partnership and all transactions arising therefrom or relating thereto by making
the representation and warranty contained herein.
D. Capitalized terms not otherwise defined herein shall have the
meanings therefor as set forth in the Partnership Agreement.
A G R E E M E N T:
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NOW, THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Closing. On the Closing Date, the Investor will wire transfer the
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Investor's Capital Investment to an account designated by the General Partner,
following receipt by the Investor of a Partnership Agreement that has been
executed by the General Partner on behalf of the Partnership.
2. Representations and Warranties; Investor Acknowledgement; General
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Partner Covenants.
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2.1 The Investor. The Investor represents and warrants to the
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Partnership that:
(a) The Investor's Interests are being acquired for investment
purposes only, for its own account, without a view to the distribution or sale
thereof.
(b) This Agreement and the Partnership Agreement have been duly
authorized, executed and delivered by the Investor and constitute the valid and
legally binding agreements of the Investor, enforceable against the Investor in
accordance with their respective terms, except to the extent that such
enforceability is limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors' rights in general
or by general principles of equity.
(c) No portion of the assets invested by the Investor in the
Partnership consists of assets of an employee benefit plan subject to Title I of
ERISA.
2.2 Investor Acknowledgement. The Investor acknowledge that the
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Partnership may allocate to the Investor income that, for federal income tax
purposes with respect to certain tax exempt entities, may be considered
unrelated taxable business income under Sections 511 through 514 of the Code.
2.3 The General Partner. The General Partner represents and
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warrants to the Investor that:
(a) The Partnership is a duly organized and validly existing
limited partnership under the laws of the State of California with full
partnership power and authority to conduct its business as contemplated in the
Partnership Agreement and the Partnership will be treated as a partnership for
federal income tax purposes.
(b) The General Partner is a corporation duly organized and
validly existing and in good standing under the laws of the State of California.
(c) This Agreement and the Partnership Agreement have been duly
authorized, executed and delivered by the General Partner and, upon due
execution and delivery by the Investor, will constitute the valid and legally
binding agreements of each of the Partnership and the General Partner,
enforceable against such parties in accordance with their respective terms,
except to the extent that such enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights in general or by general principles of equity.
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(d) Each of the General Partner and the Partnership (i) is a
"small concern," as such term is defined in 13 C.F.R. (S)107.3, and (ii)
complies with all applicable size standards set forth in 13 C.F.R. (S)121.802.
2.4 Company Representation and Warranty. The Company represents
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and warrants to the Investor that it has furnished or made available to the
Investor all material information reasonably necessary for the Investor to
consider in making its investment in the Partnership, and the Company has not
furnished to the Investor any such information and has not made any
representations (oral or written) which are incorrect in any material respect or
failed to furnish any additional information necessary to make the information
so furnished not misleading in any material respect.
2.5 General Partner Covenants. The General Partner covenants and
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agrees as follows:
(a) On the Closing Date, the General Partner shall, with
respect to each of the Partnership and the General Partner, deliver (i) an
executed copy of SBA Form 480 - Size Status Declaration, (ii) an executed copy
of SBA Form 652 - Assurance of Compliance for Nondiscrimination and (iii) the
information needed to complete Part A of SBA Form 1031 - Portfolio Financing
Report, to the Limited Partners requesting such information.
(b) The Partnership covenants and agrees that it will use the
proceeds from the sale of the Interests for research and development with
respect to the Business and for general working capital purposes of the
Partnership. The Partnership will provide all Limited Partners requesting such
information with reasonable access to the Partnership's financial records so as
to allow such Limited Partners to confirm that such proceeds were used in the
manner contemplated by this Agreement, such access to include a review by the
Limited Partners of the use of proceeds within ninety (90) days after the date
hereof. The Partnership acknowledges and agrees that, if the proceeds are not
used in the manner contemplated hereby, the Limited Partners shall have the
right to demand the immediate repayment thereof.
3. Miscellaneous.
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3.1 Choice of Law. This Agreement shall be governed by the laws of
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the State of California.
3.2 Counterparts. This Agreement may be executed in any number of
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counterparts with the same effect as if all parties had signed the same
document. All such counterparts shall be deemed an original and shall be
construed together to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
PARTNERSHIP: PMT CVD PARTNERS, L.P.
By: CVD, Inc.,
General Partner
By:
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John W. La Valle
Chief Financial Officer and Secretary
INVESTOR:
By:
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Investor's Capital Investment:
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