EXHIBIT 10.59
ASSIGNMENT AND SUBSCRIPTION AGREEMENT
This Assignment and Subscription Agreement, is made and entered into as of May
16, 2001 (this "Agreement"), among Atrium Corporation, a Delaware corporation
(the "Company") and Xxxxxxx Capital, LLC, a limited liability company (the
"Subscriber") and The Xxxxxxx Company, Inc. ("Xxxxxxx").
WITNESSETH:
WHEREAS, pursuant to a Subscription Agreement, dated May 2, 2001, between
Xxxxxxx and the Company (the "May 2 Subscription Agreement") Xxxxxxx subscribed
for and purchased, and the Company issued and sold to Xxxxxxx, 1,153,846 shares
of Class A Common Stock, par value $.01 per share ("Class A Common Stock"), of
the Company, (subject to adjustment as described therein, the "Transfer Shares")
at the purchase price of $1.30 per share (subject to adjustment as described
therein) or an aggregate purchase price of $1,500,000;
WHEREAS, the Subscriber desires to subscribe for and purchase, and the Company
desires to issue and sell to the Subscriber, 2,692,307 additional shares of
Class A Common Stock 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
$3,500,000 (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
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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 Subscription Agreement. Section 2 of the May 2
Subscription Agreement is hereby amended to change the reference to "June 30,
2001" in the first sentence thereof to "August 15, 2001".
4. Transfer. Subject to Section 5 hereof and in accordance with Section
3.05 of the Amended and Restated Stockholders Agreement, dated October 25, 2000,
by and among D and W Holdings, Inc. (now known as Atrium Corporation) and each
of the individuals and entities signatory thereto (the "Stockholders
Agreement"), Xxxxxxx hereby assigns and transfers to the Subscriber, and the
Subscriber hereby accepts and receives from Xxxxxxx, the Transfer Shares.
5. Stockholders Agreement. The Subscriber hereby agrees to become
subject to and bound by the terms of the Stockholders Agreement and to be deemed
to be a Stockholder (as defined in the Stockholders Agreement) under the
Stockholders Agreement. The Subscriber also hereby agrees that it will only
transfer the Transfer Shares to Xxxxxxx or any of Xxxxxxx'x Permitted
Transferees (as defined in the Stockholders Agreement) or otherwise in
accordance with the terms of the Stockholders Agreement. Xxxxxxx hereby agrees
that in accordance with Section 3.06 of the Stockholders Agreement, in the event
the Subscriber ceases to be an Affiliate of Xxxxxxx, Xxxxxxx will repurchase
such Transfer Shares from the Subscriber.
6. Deliveries. Upon execution and delivery of this Agreement, and
subject to the terms and conditions hereof, (i) the Company shall deliver to the
Subscriber a certificate representing the Shares, against payment of the
Aggregate Purchase Price by the Subscriber and (ii) Xxxxxxx shall deliver to the
Subscriber a certificate representing the Transfer Shares duly endorsed for
transfer. In the event of an adjustment pursuant to Section 2 hereof or pursuant
to Section 2 of the May 2 Subscription Agreement, the Company shall deliver to
the Subscriber an additional certificate representing the additional Shares or
Transfer Shares referenced in each such Section 2.
7. 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 and the Transferred
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
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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.
8. Representations and Warranties of Xxxxxxx. Xxxxxxx represents and
warrants to the Company as follows:
(a) The Subscriber is an Affiliate (as defined in the Stockholders
Agreement) of Xxxxxxx and the Transfer is permitted by and made in accordance
with the Stockholder Agreement.
(b) The execution, delivery and performance by Xxxxxxx of this
Agreement are within the powers of Xxxxxxx, 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 Xxxxxxx is a party or by which Xxxxxxx is bound, any provisions of its
articles of incorporation, by-laws, limited liability company agreement or
similar instruments. The signature of Xxxxxxx 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 Xxxxxxx,
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.
9. 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)
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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
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.
10. 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.
11. 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. Except for the provisions of
Section 5 hereof for which the Stockholders under the Stockholders
Agreement shall be
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deemed to be 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:
XXXXXXX CAPITAL, LLC
By
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Name:
Title:
THE XXXXXXX COMPANY, INC.
By
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Name:
Title:
