EXHIBIT 10.26
SUBSCRIPTION AGREEMENT
This Subscription Agreement (this "Agreement") is made and entered into
as of August 15, 2000 by and between D and W Holdings, Inc., a Delaware
corporation (the "Company"), and GE Investment Private Placement Partners II, a
Limited Partnership, a Delaware limited partnership (the "Subscriber").
W I T N E S S E T H:
WHEREAS, the Subscriber desires to subscribe for and purchase, and the
Company desires to issue and sell to the Subscriber, 3,846,153 shares of Common
Stock, par value $.01 per share, of the Company (the "Shares") at the purchase
price of $1.30 per share or an aggregate purchase price of $5,000,000 (the
"Aggregate Purchase Price").
NOW, THEREFORE, in consideration of the mutual agreements and benefits
to accrue to the Company and the Subscriber and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. SUBSCRIPTION. Subject to the terms and conditions of this
Agreement, the Subscriber hereby subscribes for and agrees to purchase, and
the Company hereby accepts such subscription and agrees to issue and sell to
the Subscriber, the Shares for the Aggregate Purchase Price.
2. DELIVERIES. Upon execution and delivery of this Agreement, and
subject to the terms and conditions hereof, the Company shall deliver to the
Subscriber a certificate representing the Shares, against payment of the
Aggregate Purchase Price by the Subscriber.
3. REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER. The Subscriber
represents and warrants to the Company as follows:
(a) The Subscriber 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 in effect thereunder.
(b) The Subscriber is acquiring the Shares solely for its own
account for investment and not with a view to the distribution or resale
thereof.
(c) The execution, delivery and performance by the Subscriber
of this Agreement are within the powers of the Subscriber, have been duly
authorized and will not constitute or result in a breach or default under,
violation of, or conflict with, any law, statute, rule, regulation,
ordinance, order, judgment, injunction, decree, or other similar restriction,
or any contract, agreement, lease, mortgage, deed of trust, instrument,
permit or other undertaking, to which the Subscriber is a party or by which
the Subscriber is bound, any provisions of its articles of incorporation,
by-laws, limited liability company
agreement or similar instruments. The signature of the signatory on behalf of
the Subscriber on this Agreement is genuine, and the signatory has legal
competence and capacity to execute the same. This Agreement constitutes a
legal, valid and binding obligation of the Subscriber, enforceable in
accordance with its terms, except as the enforceability thereof may be
subject to or limited by (a) bankruptcy, insolvency, reorganization,
arrangement, moratorium or other similar laws relating to or affecting rights
of creditors; and (b) general equitable principles, regardless of whether the
issue of enforceability is considered in a proceeding in equity or at law.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Subscriber as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The Company has the necessary right, power and authority
to enter into this Agreement and to carry out the transactions contemplated
hereby, and this Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be subject to or limited by (a) bankruptcy,
insolvency, reorganization, arrangement, moratorium or other similar laws
relating to or affecting rights of creditors; and (b) general equitable
principles, regardless of whether the issue of enforceability is considered
in a proceeding in equity or at law.
(c) When issued in accordance with the terms and conditions
hereof, all of the Shares issued pursuant to this Agreement shall be validly
issued, fully paid and nonassessable. Neither the execution nor delivery of
this Agreement nor fulfillment of nor compliance with the terms and
provisions of this Agreement by the Company, will conflict with, or result in
any violation of, or result in the creation of any lien upon any of the
properties or assets of the Company or any of its subsidiaries pursuant to,
or require any consent, approval or other action by any court or
administrative or governmental body or any other person pursuant to, the
Certificate of Incorporation or By-laws of the Company or any of its
subsidiaries, any award of any arbitrator or any order, judgment, decree,
statute, law, rule or regulation to which the Company or any of its
subsidiaries is subject.
(d) The issue or delivery of the Shares will not require any
consent, approval or authorization of, or any notice to, or filing,
registration or qualification with, any court or administrative or
governmental body other than with respect to applicable state securities or
blue sky laws for which the appropriate consents, approvals or authorizations
have been obtained and the appropriate notices, filings, registrations or
qualifications have been made.
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5. FURTHER ASSURANCES. Each party hereto will, upon reasonable
request of the other party, execute and deliver any additional documents
necessary or desirable to complete the transactions described herein.
6. MISCELLANEOUS.
(i) GOVERNING LAW. This Agreement shall be governed by, and
enforceable in accordance with, the laws of the State of New York,
without reference to principles of conflict of laws.
(ii) AMENDMENTS, ETC. All amendments or waivers of any
provisions of this Agreement may only be made pursuant to a written
instrument executed by the parties hereto or their successors and
permitted assigns.
(iii) SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Agreement made by or on behalf of any of the parties hereto
shall bind and inure to the benefit of the successors and permitted
assigns of such party; PROVIDED, HOWEVER, that no party hereto may
assign any of its rights or obligations under this Agreement without
the written consent of the other parties hereto.
(iv) COUNTERPARTS. This Agreement may be executed in two
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(v) THIRD PARTY BENEFICIARIES. This Agreement shall not, and
shall not be deemed to, confer any right or remedy upon any person
other than the parties hereto and their respective successors and
permitted assigns.
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IN WITNESS WHEREOF, this Agreement has been executed by or on behalf of
each of the parties hereto as of the date first above written.
D AND W HOLDINGS, INC.
By_________________________________
Name:
Title:
GE INVESTMENT PRIVATE PLACEMENT
PARTNERS II, A LIMITED PARTNERSHIP
BY: GE INVESTMENT MANAGEMENT
INCORPORATED, Its General Partner
By_________________________________
Name:
Title:
