EXHIBIT 10.29
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT (this "Agreement"), dated as of October 25, 2000,
by and among D and W Holdings, Inc., a Delaware corporation ("Holdings"), and
Atrium-Co Capital Partners LLC, a Delaware limited liability company (the
"Stockholder").
RECITALS :
WHEREAS, the Stockholder desires to subscribe for and purchase from
Holdings, and Holdings desires to issue to the Stockholder, such number of
shares of Series A Common Stock, par value $.01 per share, of Holdings (the
"Holdings Shares") as provided herein in exchange for the payment of the amounts
set forth herein.
NOW, THEREFORE, in consideration of the mutual premises, agreements and
covenants set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. SUBSCRIPTION; PAYMENT. On the terms and subject to the conditions
set forth in this Agreement, in reliance on the representations and warranties
of Holdings and in consideration of the issuance to the Stockholder of the
number of Holdings Shares set forth opposite the name of the Stockholder on
SCHEDULE A hereto, the Stockholder agrees to purchase from Holdings, at the
Closing, the number of Holdings Shares set forth opposite the name of the
Stockholder on SCHEDULE A hereto at the aggregate purchase price (the "Purchase
Price") in the form of cash, as set forth opposite the name of the Stockholder
on SCHEDULE A hereto.
2. ISSUANCE AND DELIVERY OF HOLDINGS SHARES. On the terms and subject
to the conditions set forth in this Agreement, in reliance on the
representations and warranties of the Stockholder and in consideration of the
payment to Holdings by the Stockholder of the Purchase Price set forth opposite
the name of the Stockholder on SCHEDULE A hereto, Holdings agrees to accept the
payment of the Purchase Price and to issue and deliver to the Stockholder, at
the Closing, as the case may be, the number of Holdings Shares set forth
opposite the name of the Stockholder on SCHEDULE A hereto.
3. CLOSING. (a) Subject to the terms and conditions of this Agreement,
the closing of the transactions provided for herein (the "Closing") shall be
held at the offices of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as the parties hereto agree, on
or about October 19, 2000.
(b) At the Closing:
(i) the Stockholder shall deliver to Holdings the Purchase
Price set forth opposite the name of such Stockholder on SCHEDULE A hereto; and
(ii) Holdings shall deliver to the Stockholder certificates
evidencing the number of Holdings Shares to be issued to such Stockholder as set
forth on SCHEDULE A hereto.
4. REPRESENTATIONS AND WARRANTIES AND OTHER AGREEMENTS OF THE
STOCKHOLDER. As an inducement to Holdings to enter into this Agreement and to
consummate the transactions contemplated hereby, the Stockholder represents and
warrants to Holdings that, with respect to such Stockholder and the Holdings
Shares to be issued to such Stockholder hereunder, the following are true and
correct as of the date hereof and as of the date of the Closing:
(a) The Stockholder has full legal capacity to enter into and
deliver this Agreement and to perform its obligations hereunder. This Agreement
has been duly and validly executed and delivered by the Stockholder and
constitutes such Stockholder's legal, valid and binding obligation, enforceable
against the Stockholder in accordance with its terms, except as enforceability
is limited by (i) principles of equity that may restrict the availability of
specific performance and other equitable remedies (whether such enforceability
is considered in a proceeding in equity or at law), and (ii) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent
transfer and other laws applicable to creditors' rights generally.
(b) The Stockholder is an "accredited investor," as such term is
defined in Regulation D under the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder (the "Act").
(c) The Stockholder is able to bear the economic risks of holding
the Holdings Shares for an indefinite period of time, has adequate means of
providing for the Stockholder's current needs and possible contingencies without
any need to sell the Holdings Shares and can afford to suffer the complete loss
of any investment in Holdings.
(d) The Stockholder has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of an
investment in Holdings and protecting the Stockholder's interests in connection
with an investment in Holdings or the Stockholder has been advised by a
representative possessing such knowledge and experience.
(e) The Stockholder and the Stockholder's representatives have
carefully reviewed all documents filed by Atrium Companies, Inc. with the
Securities and Exchange Commission since January 1, 1999 and information
relating to Holdings and its subsidiaries previously provided to the Stockholder
by Holdings (together, the "Information Circular"), and that certain Amended and
Restated Stockholders Agreement, dated as of the date hereof, by and between
Holdings and the Stockholder attached hereto as Exhibit A (the "Stockholders
Agreement"), and any exhibits and amendments thereof or supplements thereto, and
the Stockholder understands all of the risks related to making an investment in
Holdings. The Stockholder has had the
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opportunity to obtain any additional information necessary to verify the
accuracy of the information contained in such documents and to evaluate the
merits and income tax consequences of the investment in Holdings. All inquiries
made by the Stockholder and the Stockholder's representatives with respect to
Holdings and its subsidiaries and the purchase of the Holdings Shares have been
answered. No representations or warranties have been made to the Stockholder or
the Stockholder's representatives concerning the Holdings Shares or Holdings or
its prospects, subsidiaries or other matters except for those set forth in this
Agreement. In making the decision to purchase the Holdings Shares, the
Stockholder has not relied on any information provided by Holdings other than
(i) the representations and warranties contained in this Agreement and (ii)
information derived solely from the Stockholder's independent investigations.
(f) The Stockholder recognizes that the Stockholder's investment
in Holdings involves a high degree of risk and that no federal or state agency
has passed upon the accuracy or adequacy of the Information Circular or upon the
Holdings Shares or made any finding or determination as to the fairness of an
investment in Holdings.
(g) The Stockholder is aware that the Stockholder must bear the
economic risk of the Stockholder's investment in Holdings for an indefinite
period of time because (i) the Holdings Shares have not been registered under
the Act or under the securities laws of any state, and therefore cannot be sold
unless they are subsequently registered under the Act and any applicable state
securities laws or unless an exemption from such registration is available, and
(ii) the Stockholders' Agreement provides that a Stockholder may transfer and
assign the Stockholder's Holdings Shares only upon the satisfaction of certain
conditions.
(h) The Stockholder is acquiring the Holdings Shares solely for
the Stockholder's own account for investment and not with a view to the
distribution or resale thereof.
(i) The Stockholder has not offered or sold any portion of the
Stockholder's Holdings Shares and has no present intention of reselling or
otherwise disposing of any of the Stockholder's Holdings Shares.
(j) The Stockholder has been advised by Holdings and agrees that
(i) there is no existing public market for the Holdings Shares and there is no
assurance that there will be any market for the Holdings Shares in the future,
(ii) Rule 144 promulgated under the Act ("Rule 144") is not presently available
with respect to offers or sales of any securities of Holdings, (iii) when and if
the Holdings Shares may be disposed of without registration under the Act in
reliance on Rule 144, certain persons considered to be affiliates of Holdings
will be able to dispose of the Holdings Shares only in limited amounts in
accordance with the terms and conditions of such rule, and subject to the terms
and conditions of this Agreement and the Stockholders' Agreement, (iv)
securities laws of jurisdictions outside the United States may restrict the
Stockholder's ability to dispose of the Holdings Shares in such
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jurisdictions and Holdings may impose restrictions on transfers of the Holdings
Shares to avoid its violation of such laws, (v) a restrictive legend may be
placed on instruments representing the Holdings Shares, and (vi) a notation
shall be made in the appropriate records of Holdings indicating that the
Holdings Shares are subject to restrictions on transfer and, if Holdings should
at some time in the future engage the services of a stock transfer agent,
appropriate stop transfer restrictions may be issued to such transfer agent with
respect to the Holdings Shares.
(k) The Stockholder will not, directly or indirectly, offer,
transfer, sell, assign, pledge or otherwise dispose of the Holdings Shares or
any portion thereof except in compliance with the Act and the Stockholders'
Agreement. The Stockholder agrees and acknowledges that, in the event the
Stockholder is permitted to offer, transfer, sell, assign, pledge or otherwise
dispose of the Holdings Shares or any portion thereof pursuant to the
Stockholders' Agreement (i) any such offer, transfer, sale, assignment, pledge
or other disposition will be pursuant to an effective registration statement
under the Act and under all applicable state securities laws, or (ii) the
Stockholder will furnish Holdings with an opinion of counsel, which opinion and
counsel shall be reasonably satisfactory to Holdings, to the effect that no such
registration is required because of the availability of an exemption from
registration under the Act and under all applicable state securities laws.
(l) The Stockholder agrees that if, subject to the terms and
conditions of the Stockholders' Agreement, any of the Holdings Shares are to be
disposed of in accordance with Rule 144 or otherwise by the Stockholder, the
Stockholder shall promptly notify Holdings of such intended disposition and
shall deliver to Holdings, at or prior to the time of such disposition, such
documentation as Holdings may reasonably request in connection with such
disposition and, in the case of a disposition pursuant to Rule 144, shall
deliver to Holdings an executed copy of any notice on Form 144 required to be
filed with the Securities and Exchange Commission.
(m) The Stockholder has not received, paid or given, directly or
indirectly, any commission or remuneration for or on account of any sale, or the
solicitation of any sale, of the Holdings Shares.
(n) The Stockholder has received and, by execution hereof,
acknowledges that, (i) he has accepted the offer to sell the Holdings Shares in
the state indicated on the signature page hereto, (ii) the address set forth on
the signature page hereto is the address where such Stockholder is a resident
and domiciliary (not a temporary or transient resident), (iii) the Stockholder
is not acquiring the Holdings Shares as an agent or otherwise for any other
person, and (iv) the Stockholder is a citizen of the United States.
(g) The Stockholder is aware that no filing is being made by the
Company with respect to the Holdings Shares with the New York Attorney General
since the offer of the Holdings Shares to the Subscriber pursuant to this
Agreement is not a "public offering" within the meaning of the New York General
Business Law.
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5. REPRESENTATIONS AND WARRANTIES OF HOLDINGS. As an inducement to the
Stockholder to enter into this Agreement and to consummate the transactions
contemplated hereby, Holdings represents and warrants to the Stockholder that
the following are true and correct as of the date hereof and as of the date of
the Closing:
(a) Holdings is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) When issued in accordance with the terms and conditions
hereof, all of the Holdings Shares issued pursuant to this Agreement shall be
validly issued, fully paid and non-assessable.
(c) Holdings has all requisite corporate power and authority to
enter into and deliver this Agreement and to perform its obligations hereunder,
and has duly authorized the execution, delivery and performance of this
Agreement by all necessary corporate action. This Agreement has been duly and
validly authorized, executed and delivered by Holdings and constitutes Holdings'
legal, valid and binding obligation, enforceable in accordance with its terms,
except as enforceability is limited by (i) principles of equity that may
restrict the availability of specific performance and other equitable remedies
(whether such enforceability is considered in a proceeding in equity or at law),
and (ii) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, fraudulent transfer and other laws applicable to creditors' rights
generally.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF HOLDINGS. The obligations of
Holdings to consummate the transactions contemplated by this Agreement shall be
subject, at its election, to the fulfillment, performance or occurrence prior to
or at the Closing to Holdings' reasonable satisfaction, of each of the following
conditions:
(a) REPRESENTATIONS AND WARRANTIES. Each representation and
warranty made by the Stockholder in this Agreement or in any document delivered
pursuant to the provisions hereof shall be true and correct at and as of the
time of Closing.
(b) PERFORMANCE OF OBLIGATIONS AND CONDITIONS. The Stockholder
shall have performed and complied with all obligations and conditions required
by this Agreement to be performed or complied with prior to or at the Closing,
including, but not limited to, the payment of the Purchase Price.
(c) NO PROHIBITIONS. No injunction, stay or restraining order
shall be in effect prohibiting the consummation of the transactions contemplated
by this Agreement.
(d) STOCKHOLDERS' AGREEMENT. The Stockholder shall have executed
and delivered the Stockholders' Agreement attached as Exhibit A hereto.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE STOCKHOLDER. The
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obligations of the Stockholder to consummate the transactions contemplated by
this Agreement shall be subject, at its election, to the fulfillment,
performance or occurrence prior to or at the Closing to the Stockholder's
reasonable satisfaction, of each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. Each representation and
warranty made by Holdings in this Agreement or in any document delivered
pursuant to the provisions hereof shall be true and correct at and as of the
time of Closing.
(b) PERFORMANCE OF OBLIGATIONS AND CONDITIONS. Holdings shall have
performed and complied with all obligations and conditions required by this
Agreement to be performed or complied with by Holdings prior to or at the
Closing.
(c) NO PROHIBITIONS. No injunction, stay or restraining order
shall be in effect prohibiting the consummation of the transactions contemplated
by this Agreement.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties set forth in this Agreement shall survive execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby and
shall remain in full force and effect. All of the same shall be deemed to have
been relied upon by the party to which made
9. INDEMNITY. The Stockholder recognizes that the issuance of Holdings
Shares to such Stockholder will be based upon the Stockholder's representations
and warranties set forth above, and the Stockholder agrees on demand to
indemnify and hold harmless Holdings and its affiliates, and their respective
affiliates, officers, directors, employees, stockholders, representatives and
agents from and against any claims, damages, losses, liabilities, costs and
expenses, including, without limitation, any settlement costs and any reasonable
legal expenses incurred in connection with investigating or defending any
actions or threatened actions sustained or required to be paid by reason of,
arising out of or caused by (i) any misrepresentation or breach of any
representation or warranty made by the Stockholder in this Agreement; (ii) any
failure by the Stockholder to fulfill any covenants or agreements set forth in
this Agreement, or (iii) the sale or distribution of any Holdings Shares by the
Stockholder in violation of the Act, any applicable state securities or blue sky
laws or the Stockholders' Agreement.
The indemnification contained in this Section 9 shall survive the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby.
10. MISCELLANEOUS.
(a) FURTHER ASSURANCES. Each party hereto shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as any other party hereto reasonably may request in order to carry out
the intent and accomplish the purposes of this Agreement.
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(b) ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement and the
Stockholders' Agreement constitute the entire agreement among the parties hereto
with respect to the subject matter hereof, supersede all prior and
contemporaneous agreements and understandings, if any, of the parties with
respect thereto, may not be amended or supplemented except by an instrument or
counterparts thereof in writing signed by the parties hereto and may not be
discharged except by such written instrument or by performance. No waiver of any
term or provision of this Agreement shall be effective unless in writing signed
by the party to be charged and such waiver shall not be effective as to any
other provision of this Agreement.
(c) BINDING EFFECT. This Agreement shall be binding on and inure
to the benefit of the parties hereto and, subject to the terms and provisions
hereof, their respective heirs, legal representatives, successors and permitted
assigns. Neither this Agreement nor any rights, interests or obligations
hereunder may be assigned by any Stockholder without the prior written consent
of the Company.
(d) INVALIDITY OF PROVISION. The invalidity or unenforceability of
any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including that
provision, in any other jurisdiction.
(e) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which taken together shall be deemed one and the same
instrument.
(f) NOTICES. All notices or other communications given or made
hereunder shall be in writing and, unless otherwise provided herein, shall be
deemed to have been given when received by the party to whom such notice is to
be given at its address set forth below, or such other address for the party as
shall be specified by notice given pursuant hereto:
If to Holdings:
D and W Holdings, Inc.
c/o Ardshiel, Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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If to a Stockholder:
To the address set forth below such Stockholder's
signature on the signature page hereto.
With a copy to:
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Attention: ▇▇▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(g) HEADINGS. The descriptive headings of the several sections of
this Agreement are inserted for convenience only and do not constitute part of
this Agreement.
(h) THIRD PARTY BENEFICIARIES. Except as otherwise expressly set
forth herein, no individual or entity shall be a third-party beneficiary of the
representations, warranties, covenants and agreements made by any party hereto.
(i) GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the laws
of the State of Delaware without regard to the principles of conflict of laws.
(j) SCHEDULES. All Schedules referred to in this Agreement are
intended to be and are hereby specifically made a part of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date and year first above written.
D AND W HOLDINGS, INC.
By: ________________________________
Name:
Title:
ATRIUM CO-CAPITAL PARTNERS LLC
___________________________________
Name:
Address: Atrium Co-Capital Partners LLC
c/o Ardshiel, Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE A
AGGREGATE
PURCHASE PRICE
(AT RATE OF Number of
Name $1.30 PER SHARE) Holdings Shares
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Atrium-Co Capital $5,000,000 3,846,153
Partners LLC shares