TERMINATION AGREEMENT
This TERMINATION AGREEMENT (this "Agreement") is made and entered into as
of October 2, 1998, between Atrium Corporation, a Delaware corporation ("Atrium
Corp."), Atrium Companies, Inc., a Delaware corporation ("Atrium Co."), Xxxxx,
Muse & Co. Partners, L.P., a Texas limited partnership ("HM LP"), and Hicks,
Muse, Xxxx & Xxxxx Incorporated, a Texas corporation ("HMTF Inc."). This
Agreement is being entered into in connection with that certain Agreement and
Plan of Merger dated as of August 3, 1998 (the "Merger Agreement") by and among
Atrium Corp., D and W Holdings, Inc., a Delaware corporation ("Parent"), D and W
Acquisition Corp., a Delaware corporation ("Sub") and the securityholders named
therein.
RECITALS
A. Atrium Corp., Atrium Co. and HM LP are parties to that certain
Monitoring and Oversight Agreement made and entered into effective as of
November 27, 1996 (the "Monitoring and Oversight Agreement").
B. Atrium Corp., Atrium Co. and HM LP are parties to that certain
Financial Advisory Agreement made and entered into effective as of November 27,
1996 (the "Financial Advisory Agreement").
C. Atrium Corp., HMTF Inc. and the persons listed on SCHEDULE 1 hereto
are parties to that certain Stockholders Agreement, dated November 27, 1996 (the
"Stockholders Agreement").
D. Atrium Corp., HMTF Inc. and the persons listed on SCHEDULE 2 hereto
are parties to certain Buy-Sell Agreements, identified by date on SCHEDULE 2
hereto (collectively, the "Buy-Sell Agreements").
E. Atrium Corp., Atrium Co. and HM LP desire to terminate certain
provisions of (i) the Monitoring and Oversight Agreement, and (ii) the Financial
Advisory Agreement.
F. The Merger Agreement provides that the Stockholders Agreement and the
Buy-Sell Agreements shall be terminated effective as of the Closing and, to
effect such termination, HMTF Inc. is willing to execute, deliver and enter into
this Agreement.
AGREEMENTS
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Atrium Corp., Atrium Co. and HM LP hereby terminate all of the terms
and provisions set forth in the Monitoring and Oversight Agreement other than
Section 5 (to the extent such section would otherwise survive following the
closing of the transactions
contemplated in the Merger Agreement), such termination to be effective as of
the date hereof. Atrium Corp., Atrium Co. and HM LP hereby agree that no
party has breached any provision of the Monitoring and Oversight Agreement
and that from and after its termination hereunder, each of Atrium Corp.,
Atrium Co. and HM LP hereby release each other from any liability they would
otherwise have under the Monitoring and Oversight Agreement, except for any
liability that Atrium Corp. and Atrium Co. have to HM LP with respect to any
amounts owed under the Monitoring and Oversight Agreement as of the date
hereof.
2. Atrium Corp., Atrium Co. and HM LP hereby terminate all of the terms
and provisions set forth in the Financial Advisory Agreement other than Section
5 (to the extent such section would otherwise survive following the closing of
the transactions contemplated in the Merger Agreement), such termination to be
effective as of the date hereof. Atrium Corp., Atrium Co. and HM LP hereby
agree that no party has breached any provision of the Financial Advisory
Agreement and that from and after its termination hereunder, each of Atrium
Corp., Atrium Co. and HMLP hereby release each other from any liability they
would otherwise have under the Financial Advisory Agreement.
3. HMTF Inc. hereby consents to the termination of the Stockholders
Agreement, such termination to be effective as of the date hereof. HMTF Inc.
hereby agrees that no party has breached any term or provision of the
Stockholders Agreement and that from and after its termination hereunder, HMTF
hereby releases each other party to the Stockholders Agreement from any
liability they would otherwise have to HMTF under the Stockholders Agreement.
4. HMTF Inc. hereby consents to the termination of the Buy-Sell
Agreements, such termination to be effective as of the date hereof. HMTF
Inc. hereby agrees that no party to the Buy-Sell Agreements has breached any
term or provision of his, her or its Buy-Sell Agreement and that from and
after its termination hereunder, HMTF hereby releases each other party to
each Buy-Sell Agreement from any liability they would otherwise have to HMTF
under such Buy-Sell Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
IN WITNESS WHEREOF, Atrium Corp., Atrium Co., HM LP and HMTF Inc. have
caused this Agreement to be signed, all as of the date first written above.
ATRIUM CORPORATION
By:
-----------------------------------------------
Xxxxxxx X. Xxxxxxxx,
President and Chief Executive Officer
ATRIUM COMPANIES, INC.
By:
-----------------------------------------------
Xxxxxxx X. Xxxxxxxx,
President and Chief Executive Officer
XXXXX, MUSE & CO. PARTNERS, L.P.
By: HM PARTNERS INC.,
its General Partner
By:
-----------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
HICKS, MUSE, XXXX & XXXXX
INCORPORATED
By:
-----------------------------------------------
Xxxxxx X. Xxxxxxxxxxxx,
Vice President
SCHEDULE 1
Heritage Fund I, L.P.
Xxx Xxxxxxxx
Xxxxxxx X. Xxxxxxxx,
Xxxxxxx X. Xxxxxxxx
Hicks, Muse, Xxxx & Xxxxx Equity Fund III, L.P.
HM3 Coinvestors, L.P.
O. Xxxxxx Xxxxxx, Jr., Trustee of the Xxxx Xxxxxx Xxxxxxxx Trust
O. Xxxxxx Xxxxxx, Jr., Trustee of the Xxx Xxxxxxxx XX Trust
O. Xxxxxx Xxxxxx, Jr., Trustee of the P. Xxxxxxx Xxxxxxxx Trust
Xxx Xxxxxxxx, as custodian for Xxxxxxx Xxxxxxx Xxxxxxxx
SCHEDULE 2
NAME DATE OF AGREEMENT
---- -----------------
Xxxxx Xxxxxxxxxx 11/27/96
Xxxxx Xxxxxxx 11/27/96
Xxxxxx Xxxxx 11/27/96
Xxxx Xxxxxx 11/27/96
Xxxxx Xxxxxxx 11/27/96
Xxxxxxx Xxxxxxxxx 11/27/96
Xxxx Xxxx 11/27/96
Xxxxxxx Xxxxxx 11/27/96
Dow Pointer 11/27/96
Xxxxx Xxxxxx 11/27/96
Xxxxx XxXxxxx 09/19/97
Xxxx Xxxxxxxx 03/27/98
Xxxxxx Xxxxxx 03/27/98
Xxxxxxx Xxxxxxxx 03/27/98
