EXHIBIT 10.25
EXCHANGE AND SUBSCRIPTION AGREEMENT
This Exchange and Subscription Agreement, is made and entered into as of July
31, 2000 (this "Agreement"), by and among D and W Holdings, Inc., a Delaware
corporation (the "Company"), GE Investment Private Placement Partners II, a
Limited Partnership, a Delaware limited partnership ("GEIPPPII"), and Ardatrium
L.L.C., a Delaware limited liability company ("Ardatrium") (each of GEIPPPII and
Ardatrium is hereinafter referred to individually as a "Subscriber" and
collectively as the "Subscribers").
W I T N E S S E T H:
WHEREAS, as of the date hereof, each of GEIPPPII and Ardatrium owns 12% Senior
Discount Debentures Due 2010 of Atrium Corporation, a Delaware corporation (the
"Debentures"), acquired by each of GEIPPPII and Ardatrium pursuant to the
Securities Purchase Agreement dated October 2, 1998 by and among the Company,
GEIPPPII and Ardatrium;
WHEREAS, each of GEIPPPII and Ardatrium has agreed to sell, assign and transfer
all of its outstanding Debentures in such amounts set forth opposite such
Subscriber's name on Schedule 1 attached hereto in exchange for the number of
shares of Common Stock, par value $.01 (the "Common Stock"), of the Company set
forth opposite such Subscriber's name on Schedule 1 attached hereto
(collectively, the "Shares");
NOW, THEREFORE, in consideration of the mutual agreements and benefits to accrue
to the Company and the Subscribers and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. EXCHANGE. Upon the execution and delivery of this Agreement, and
subject to the terms and conditions hereof, (a) each of GEIPPPII and
Ardatrium hereby sells, assigns and transfers to the Company, and the Company
hereby accepts, all of such Subscriber's right, title and interest in and to
all Debentures owned by such Subscriber and (b) the Company hereby issues to
each of GEIPPPII and Ardatrium and each of GEIPPPII and Ardatrium hereby
accepts, in exchange for such Subscriber's Debentures, a number of Shares,
set forth next to such Subscriber's name on Schedule 1 attached hereto, with
a fair market value equal to the Accreted Value (as defined in the Indenture,
dated October 2, 0000, xxxxxxx xxx Xxxxxxx xxx Xxxxxx Xxxxxx Trust Company of
New York, as trustee (the "Indenture")) of the Subscriber's Debentures (which
Accreted Value of the Subscriber's Debentures is equal to the fair market
value of the Subscriber's Debentures), at a rate of $1.30 per share of Common
Stock.
2. DELIVERIES. Upon execution and delivery of this Agreement, and
subject to the terms and conditions hereof, the Company shall deliver to each
Subscriber a certificate representing the number of Shares set forth opposite
such Subscriber's name on Schedule 1 attached hereto and each of GEIPPPII and
Ardatrium shall deliver to the Company the Debentures in the amounts set
forth opposite such Subscriber's name on Schedule 1 attached hereto,
accompanied by a duly executed instrument of assignment as required by the
terms of the Indenture and the Debentures.
3. REPRESENTATIONS AND WARRANTIES OF SUBSCRIBERS. Each Subscriber
severally and not jointly represents and warrants to the Company as follows:
(a) Such Subscriber is the sole owner of such Subscriber's
Debentures free and clear of any liens, claims, security interests, and
encumbrances of any kind or nature whatsoever and will have the complete
power to transfer and deliver the Debentures to the Company, as contemplated
by this Agreement, free and clear of all liens, claims, security interests,
mortgages, charges, options, pledges and encumbrances (collectively,
"Encumbrances"). Upon transfer to the Company by such Subscriber of its
Debentures, the Company will have good and marketable title to such
Debentures, free and clear of all Encumbrances.
(b) Such 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.
(c) Such Subscriber is acquiring the Shares solely for such
Subscriber's own account for investment and not with a view to the
distribution or resale thereof.
(d) The execution, delivery and performance by such Subscriber of
this Agreement are within the powers of such 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 such Subscriber is a party or by which
such Subscriber is bound, any provisions of its articles of incorporation,
by-laws, limited liability company agreement or similar instruments. The
signature of such 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 such 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 Subscribers as follows:
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(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. Except as set forth on Schedule 5(f),
the execution, delivery and performance of this Agreement by the Company will
not violate (with or without the giving of notice or the lapse of time or
both) or require any consent or approval, filing or notice under and will not
conflict with, or result in the breach or termination of any provision of, or
constitute a default under, or result in the acceleration of the performance
of the obligations of the Company under the Company's Certificate of
Incorporation or By-laws or under any material indenture, mortgage, deed of
trust, lease, license agreement, contract, instrument or other agreement, or
any law, order, judgment or decree to which Holdings is a party or by which
Holdings is bound.
(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.
5. STOCKHOLDERS AGREEMENT. The execution by GEIPPPII of this Agreement
shall constitute written consent for purposes of Section 5.04 of the
Stockholders Agreement dated October 2, 1998 by and among the Company and
each of the individuals or entities signatory thereto (the "Stockholders
Agreement"), to any and all actions required to be taken to effectuate the
purposes of this Agreement, to the extent such actions are subject to the
consent requirement of Section 5.04 of the Stockholders Agreement.
6. FURTHER ASSURANCES. The parties hereto, will, upon reasonable
request of another party, execute and deliver any additional documents
necessary or desirable to complete the transactions described herein.
7. MISCELLANEOUS.
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(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.
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:
ARDATRIUM L.L.C.
By:__________________________________
Name:
Title:
SCHEDULE 1
OUTSTANDING PRINCIPAL ACCRETED VALUE
SUBSCRIBER AMOUNT OF DEBENTURES OF DEBENTURES SHARES
---------- --------------------- -------------- ------
GEIPPPII $ $
Ardatrium $ $
