REPURCHASE AGREEMENT
Exhibit 10.33
This Repurchase Agreement (this “Agreement”) is made and entered into as of January 2,
2006, by and between Xxxxxxx X. Xxxxx (the “Employee”) and AMH Holdings II, Inc., a
Delaware corporation (the “Company”).
WHEREAS, in connection with two recapitalization transactions that closed on March 4, 2004 and
December 22, 2004, respectively, (i) AMH Holdings, Inc., a Delaware corporation (“AMH”) was
established as the direct parent company AMHI, (ii) the Company was established as the direct
parent company of AMH, (iii) all of the currently outstanding shares of stock issued to the
Employee upon the exercise of options granted pursuant to the 2002 Award Agreement have become
shares of the Class B, Series II (Non-Voting) Common Stock of the Company (“B-II Company Common
Stock”), (iv) the Employee has agreed, pursuant to an Agreement dated as of December 22, 2004,
to exchange all of the shares of stock issuable upon the exercise of his currently unexercised
options granted pursuant to the 2002 Award Agreement for shares of B-II Company Common Stock and
(v) pursuant to an AMH Holdings II, Inc. Stock Option Award Agreement, dated December 22, 2004 (the
“2004 Award Agreement” and, together with the 2002 Award Agreement, the “Award
Agreements”), between the Employee and the Company, the Employee was granted options to
purchase additional shares of B-II Company Common Stock, subject to the terms and conditions of the
2004 Award Agreement and of the AMH Holdings II, Inc. 2004 Stock Option Plan (the “2004 Option
Plan”);
(a) The Employee hereby acknowledges and agrees that the Current FMV represents the current
fair market value of the B-II Company Common Stock as of the date hereof and accordingly, pursuant
to Section 5(b) of each applicable Award Agreement, does hereby sell, assign, transfer and convey
unto the Company,
shares of B-II Company Common Stock, such shares constituting all of the
currently outstanding shares of capital stock of the Company issued upon the exercise of options
granted pursuant to either of the Award Agreements, as applicable (collectively the
“Repurchased Stock”). Contemporaneously with the execution and delivery of this Agreement,
the Employee shall deliver to the Company any and all stock certificates representing the
Repurchased Stock, together with duly executed stock powers endorsed in blank or such other
instruments of transfer as are reasonably acceptable to the Company.
(b) The Employee hereby notifies the Company that he will not exercise any outstanding options
which are currently exercisable pursuant to the terms of either Award Agreement, hereby waives any
applicable post-termination exercise period in respect of such options as provided in Section 2(d)
of the applicable Award Agreement, and hereby agrees that all of such unexercised options are
hereby unconditionally and irrevocably forfeited by the Employee.
The Employee hereby represents and warrants to the Company as follows:
(a) The Employee has the legal capacity to execute this Agreement and to consummate the
transactions contemplated hereby. The Employee has duly executed and delivered this Agreement and
this Agreement constitutes a legal, valid and binding obligation of the Employee, enforceable
against the Employee in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance or other similar laws affecting the
enforcement of creditors’ rights generally and general equitable principles.
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(b) Neither the execution and delivery by the Employee of this Agreement, nor the consummation
of the transactions contemplated hereby, nor compliance by the Employee with any of the provisions
hereof, will conflict with or result in any violation of or default under, or give rise to a right
of termination, cancellation or acceleration of any obligation or loss of a material benefit under,
(a) any judgment or law applicable to the Employee or (b) any material contract to which the
Employee is a party or by which any of his assets or property are bound.
(c) The Employee is the sole record and beneficial owner of, and possesses good and marketable
title to, all of the Repurchased Stock, free and clear of any and all liens, security interests,
charges, pledges, encumbrances, restrictions, claims or interests of any kind or nature. The
Repurchased Stock constitutes all of the shares of capital stock of the Company or any of its
affiliates owned of record or beneficially by the Employee or any other person or entity claiming
through the Employee.
The Company hereby represents and warrants to the Employee as follows:
(a) The Company has been duly incorporated, is validly existing and in good standing under the
laws of its jurisdiction of incorporation, with all requisite corporate power and authority to own
its properties and conduct its business as now conducted.
(b) The Company has all requisite power and authority to execute this Agreement and consummate
the transactions contemplated hereby. The execution and delivery by the Company of this Agreement
and the consummation of the transactions contemplated hereby have been duly authorized by all
necessary corporate action of the Company. The Company has duly executed and delivered this
Agreement and this Agreement constitutes its legal, valid and binding obligation, enforceable
against the Company in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, or other similar laws
affecting the enforcement of creditors’ rights generally and by general equitable principles.
(c) The execution and delivery by the Company of this Agreement does not, and the consummation
of the transactions contemplated hereby and compliance by the Company with the terms hereof will
not, conflict with or result in any violation of any provision of (i) the certificate of
incorporation or by-laws of the Company or (ii) any judgment or law applicable to the Company or
its properties or assets.
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9. Governing Law. This Agreement, and the legal relations between the parties hereto,
shall be governed by and construed in accordance with the laws of the State of New York applicable
to agreements executed and to be performed solely within such state.
If to the Employee to:
Xx. Xxxxxxx X. Xxxxx
0000 Xxxxxx Xxxx
Xxxxx, Xxxx 00000
0000 Xxxxxx Xxxx
Xxxxx, Xxxx 00000
If to the Company, to:
AMH Holdings II, Inc.
0000 Xxxxx Xxxx
Xxxxxxxx Xxxxx, Xxxx 00000
0000 Xxxxx Xxxx
Xxxxxxxx Xxxxx, Xxxx 00000
with a copy (which shall not constitute notice) to:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
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Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
11. Jurisdiction. Any legal action or proceeding with respect to this Agreement may
be brought in the courts of the United States or America for the Southern District of New York and,
by execution and delivery of this Agreement, the Employee hereby accepts for himself and in respect
of his property, generally and unconditionally, the jurisdiction of the aforesaid courts. The
Employee further irrevocably consents to the service of process out of any of the aforementioned
courts in any action or proceeding by the mailing of copies thereof by guaranteed overnight courier
to the Employee at his address set forth in Section 10 hereof, such service to become effective
seven (7) days after such mailing. Nothing herein shall affect the right of the Company to serve
process in any other manner permitted by law or to commence legal proceedings or otherwise proceed
against the Employee in any other jurisdiction. The Employee hereby irrevocably waives any
objection which he may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Agreement brought in the courts referred
to above and hereby further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in an inconvenient
forum.
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AMH HOLDINGS II, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
XXXXXXX X. XXXXX, as the Employee | ||||