EXHIBIT 10.58
SUBSCRIPTION AGREEMENT
This Subscription Agreement, is made and entered into as of May 16, 2001 (this
"Agreement"), between Atrium Corporation, a Delaware corporation (the "Company")
and Ardatrium L.L.C., a Delaware limited liability company (the "Subscriber").
WITNESSETH:
WHEREAS, the Subscriber desires to subscribe for and purchase, and the Company
desires to issue and sell to the Subscriber, 26,923 shares of Class A Common
Stock, par value $.01 per share, of the Company, (subject to adjustment as
described below, the "Shares") at the purchase price of $1.30 per share (subject
to adjustment as described below, the "Price Per Share") or an aggregate
purchase price of $35,000 (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, at the Price Per Share, for the Aggregate Purchase Price.
2. Adjustment. In the event the Company issues shares of common stock
in an equity financing prior to August 15, 2001, then, to the extent the
purchase price per share of common stock issued in such financing is less than
$1.30 per share, the Price Per Share shall automatically and retroactively be
adjusted to such purchase price per share such that the Company shall be deemed
to have issued additional Shares as part of this subscription so that the
adjusted Price Per Share, when multiplied by the number of shares issued and
deemed to be issued to the Subscriber as part of this subscription equals the
Aggregate Purchase Price. In the event of an adjustment pursuant to this Section
2, that portion of the Aggregate Purchase Price in excess of the result of
multiplying the adjusted Price Per Share by the original number of Shares issued
to the Subscriber under this Agreement (i.e., excluding the shares deemed issued
as per this Section 2) shall be allocated to the additional Shares that shall
have been deemed to have been issued as part of this subscription, such that the
Aggregate Purchase Price shall be deemed to have been paid to purchase the
entire number of Shares at the adjusted Price per Share.
3. Amendment to May 2, 2001 Subscription Agreement. Section 2 of the
Subscription Agreement, dated as of May 2, 2001, between the Company and the
Subscriber pursuant to which the Subscriber subscribed for and purchased and the
Company issued and sold 11,538 shares of Class A Common Stock of the Company,
subject to adjustment as described therein, is hereby amended to change the
reference to "June 30, 2001" in the first sentence thereof to "August 15, 2001".
4. 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. In the event of an adjustment
pursuant to Section 2 hereof, the Company shall deliver to the Subscriber an
additional certificate representing the additional Shares referenced in said
Section 2.
5. 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
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.
6. 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.
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(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
agreement, instrument, 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.
7. Further Assurances. The parties hereto, will, upon reasonable
request of any other party hereto, execute and deliver any additional documents
necessary or desirable to complete the transactions described herein.
8. 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 or
more 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.
ATRIUM CORPORATION
By
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Name:
Title:
ARDATRIUM L.L.C.
By
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Name:
Title:
