EXECUTION COPY
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STOCK PURCHASE AGREEMENT
By and Among
AMH HOLDINGS, INC.,
HARVEST PARTNERS, INC., as Sellers' Representative,
Each of the Other Parties Named Herein as a Seller,
And
AM HOLDING LIMITED,
AM EQUITY LIMITED,
AM INVESTMENTS LIMITED,
ASSOCIATED EQUITY LIMITED
And
ASSOCIATED INVESTMENTS LIMITED
as Purchasers
Dated as of December 5, 2004
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TABLE OF CONTENTS
PLEASE UPDATE
Page
ARTICLE I DEFINITIONS..........................................................3
Section 1.1. Definitions...................................................3
Section 1.2. Additional Defined Terms......................................7
Section 1.3. Construction..................................................9
Section 1.4. Exhibits and Disclosure Letters...............................9
Section 1.5. Knowledge.....................................................9
ARTICLE II PURCHASE AND SALE OF PREFERRED STOCK...............................10
Section 2.1. Purchase and Sale of Preferred Stock.........................10
Section 2.2. Closing......................................................10
Section 2.3. Payment of Purchase Price; Delivery of Shares of
Preferred Stock............................................10
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY.....................11
Section 3.1. Due Organization, Good Standing and Corporate Power..........11
Section 3.2. Authorization; Noncontravention..............................11
Section 3.3. Capital Stock................................................12
Section 3.4. Consents and Approvals.......................................13
Section 3.5. Company Reports and Financial Statements.....................13
Section 3.6. Absence of Certain Changes; Undisclosed Liabilities..........14
Section 3.7. Compliance with Laws.........................................15
Section 3.8. Litigation...................................................15
Section 3.9. Employee Benefit Plans.......................................15
Section 3.10. Labor Matters...............................................17
Section 3.11. Taxes.......................................................17
Section 3.12. Intellectual Property.......................................18
Section 3.13. Broker's or Finder's Fee....................................19
Section 3.14. Certain Contracts and Arrangements..........................20
Section 3.15. Environmental Laws and Regulations..........................20
Section 3.16. Insurance...................................................21
Section 3.17. Restricted Payments.........................................21
Section 3.18. Exclusivity of Representations..............................21
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF EACH SELLER......................22
Section 4.1. Due Organization, Good Standing and Corporate Power..........22
Section 4.2. Authorization; Noncontravention..............................22
Section 4.3. Consents and Approvals.......................................23
Section 4.4. Ownership and Title..........................................23
Section 4.5. Litigation...................................................23
Stock Purchase Agreement
Section 4.6. Broker's or Finder's Fee.....................................23
Section 4.7. Exclusivity of Representations...............................23
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS....................23
Section 5.1. Due Organization, Good Standing and Corporate Power..........23
Section 5.2. Authorization; Noncontravention..............................24
Section 5.3. Consents and Approvals.......................................24
Section 5.4. Broker's or Finder's Fee.....................................24
Section 5.5. Funds........................................................25
Section 5.6. Litigation...................................................25
Section 5.7. Investment Intent............................................25
Section 5.8. No Outside Reliance..........................................26
Section 5.9. Purchaser Status.............................................26
Section 5.10. Exclusivity of Representations..............................26
ARTICLE VI ADDITIONAL AGREEMENTS..............................................26
Section 6.1. Access to Information Concerning Properties and Records......26
Section 6.2. Confidentiality..............................................27
Section 6.3. Conduct of the Business of the Company Pending the Closing
Date.......................................................27
Section 6.4. Commercially Reasonable Efforts..............................29
Section 6.5. Exclusive Dealing............................................29
Section 6.6. Antitrust Laws...............................................30
Section 6.7. Other Consents...............................................30
Section 6.8. Public Announcements.........................................31
Section 6.9. Notification of Certain Matters..............................31
Section 6.10. Certain Transactions........................................31
Section 6.11. Fees........................................................32
Section 6.12. Charter Amendment...........................................32
Section 6.13. Ancillary Documents and Transactions........................32
Section 6.14. Appointment of Sellers' Representative......................36
Section 6.15. Bonus Payments; Acceleration of Options.....................37
ARTICLE VII CONDITIONS PRECEDENT..............................................38
Section 7.1. Conditions to the Obligations of Each Party..................38
Section 7.2. Conditions to the Obligations of the Purchasers..............39
Section 7.3. Conditions to the Obligations of Sellers.....................41
Section 7.4. Frustration of Closing Conditions............................41
ARTICLE VIII TERMINATION AND ABANDONMENT......................................41
Section 8.1. Termination..................................................41
Section 8.2. Effect of Termination........................................41
Stock Purchase Agreement
ARTICLE IX MISCELLANEOUS......................................................42
Section 9.1. Fees and Expenses............................................42
Section 9.2. Survival of Representations, Warranties and Covenants........42
Section 9.3. Notices......................................................42
Section 9.4. Entire Agreement.............................................44
Section 9.5. Disclosure...................................................44
Section 9.6. Binding Effect; Benefit; Assignment..........................44
Section 9.7. Amendment; Waiver............................................45
Section 9.8. Counterparts.................................................45
Section 9.9. Applicable Law...............................................45
Section 9.10. Severability................................................45
Section 9.11. Specific Enforcement........................................46
Section 9.12. Waiver of Jury Trial........................................46
Section 9.13. Rules of Construction.......................................46
Section 9.14. Additional Purchasers.......................................46
____________________________________________________________
-- Form of Charter Amendment
Exhibit B -- Form of Company Certificate of Designations
Exhibit C -- Form of Harvest Promissory Note
Exhibit D -- Form of Investcorp Promissory Note
Exhibit E -- Form of Holdings Charter
Exhibit F -- Holdings Certificate of Designations
Exhibit G -- Form of Dividend Promissory Note
Exhibit H -- Form of Management Bonus Promissory Note
Exhibit I -- Form of Management Bonus Holdback Promissory Note
Exhibit J -- Form of Holdings Option Plan
Exhibit K -- Option Award Agreement
Exhibit L -- Form of Harvest Management Agreement
Exhibit M -- Form of Investcorp Management Advisory Agreement
Exhibit N -- Form of Investcorp Financing Advisory Agreement
Exhibit O -- Form of Investcorp M&A Advisory Agreement
Exhibit P -- Form of Restructuring Agreement
Exhibit Q -- Form of Holdings Stockholders Agreement
Exhibit R -- Senior Credit Facility Commitment Letter
Exhibit S -- Mezzanine Note Financing Commitment Letter
Exhibit T -- Form of Transaction Fees Opinion
Exhibit U -- Form of Solvency and Fairness Opinion
Exhibit V -- Form of Joinder Agreement
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is entered into as of
December 5, 2004 by and among (i) AMH Holdings, Inc., a Delaware corporation,
(the "Company"), (ii) Harvest Partners, Inc., a New York corporation, as
Sellers' Representative (the "Sellers' Representative"), (iii) each of the
parties identified as a "Seller" in the first column of Schedule I hereto (each
such party, a "Seller" and, collectively, the "Sellers"), (iv) AM Holding
Limited, a Cayman Islands corporation, ("Purchaser I"), (v) AM Equity Limited, a
Cayman Islands corporation ("Purchaser II"), (vi) AM Investments Limited, a
Cayman Islands corporation ("Purchaser III"), (vii) Associated Equity Limited, a
Cayman Islands corporation ("Purchaser IV") and (viii) Associated Investments
Limited, a Cayman Islands corporation ("Purchaser V" and, collectively with
Purchaser I, Purchaser II, Purchaser III and Purchaser IV, the "Purchasers" and,
collectively with Sellers' Representative, Sellers and the Company, the
"Parties").
W I T N E S S E T H:
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WHEREAS, the Sellers desire to restructure the Company to re-allocate
the voting and non-voting capital stock of the Company among the Sellers;
WHEREAS, pursuant to a resolution of the Board to be taken prior to
the Closing, subject to Section 6.15 hereof, the vesting of 100% of the
performance-based options (each a "Performance-Vested Option") to purchase
shares of Class A Common Stock of the Company, par value $0.01 per share (the
"Existing Class A Common Stock"), granted pursuant to the AMH Holdings, Inc.
2004 Option Plan (the "Company Option Plan") shall be accelerated and shall be
exercisable as of immediately prior to the Closing;
WHEREAS, immediately after the acceleration of the vesting of the
Performance-Based Options, each holder of options granted pursuant to the
Company Option Plan (each an "Option Exercise Seller") desires to exercise, in
accordance with the terms of the Company Option Plan, all of his or her
Performance-Vested Options and such amount of his or her time-based options to
purchase Existing Class A Common Stock of the Company (such number of time-based
options, with the Performance-Vested Options, the "Exercise Options") as is
required in order to receive the number of shares of Existing Class A Common
Stock of the Company (the "Option Exercise Shares") set forth on Schedule I
hereto (all options to purchase shares of capital stock of the Company granted
pursuant to the Company Option Plan other than the Exercise Options are
collectively referred to herein as the "Unexercised Company Options");
WHEREAS, each Seller (other than the Option Exercise Sellers) owns as
of the date hereof, and each Option Exercise Seller will own upon the exercise
of the Exercise Options, beneficially and of record (i) the number of shares of
Existing Class A Common Stock set forth opposite the name of such Seller in the
second column of Schedule I hereto and (ii) the number of shares of Class B
Common Stock of the Company, par value $0.01 per share (the "Existing Class B
Common Stock"), set forth opposite the name of such Seller in the third column
of Schedule I hereto (the shares of Existing Class A Common Stock owned by the
Management Sellers
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(before giving effect to the exercise of Exercise Options held by the
Management Sellers) are referred to herein as the "Management Shares");
WHEREAS, upon the terms and subject to the conditions set forth in
this Agreement, prior to the Closing hereunder, the certificate of incorporation
of the Company shall be amended and restated pursuant to Section 242 of the
Delaware General Corporation Law (as amended, the "DGCL"), substantially in the
form attached hereto as Exhibit A (the "Charter Amendment"), in order to
reclassify (the "Reclassification"):
(a) each outstanding share of Existing Class A Common Stock of the
Company held by any Harvest-Related Seller as (i) one share of Class A, Series I
(Voting) Convertible Preferred Stock of the Company, par value $0.01 per share
(the "Voting Preferred Stock") and (ii) one share of Class B, Series I (Voting)
Common Stock of the Company, par value $0.01 per share (the "Class B Voting
Common Stock");
(b) each outstanding share (other than any Option Exercise Shares and
any Management Shares) of Existing Class A Common Stock or Existing Class B
Common Stock of the Company, as applicable, held by Sellers who are not Harvest
Related Sellers as (i) one share of Class A, Series II (Non-Voting) Convertible
Preferred Stock of the Company, par value $0.01 per share (the "Non-Voting
Preferred Stock" and, collectively with the Voting Preferred Stock, the
"Preferred Stock") and (ii) one share of Class B, Series II (Non-Voting) Common
Stock of the Company, par value $0.01 per share (the "Class B Non-Voting Common
Stock" and, collectively with the Class B Voting Common Stock, the "Class B
Common Stock");
(c) each Option Exercise Share as two shares of Non-Voting Preferred
Stock; and
(d) each Management Share as two shares of Class B Non-Voting Common
Stock.
WHEREAS, the Charter Amendment shall create (i) a series of authorized
common stock of the Company, the shares of which are issuable upon conversion of
the Voting Preferred Stock, consisting of 500,000 shares of Class A, Series I
(Voting) Common Stock of the Company, par value $0.01 per share (the "Class A
Voting Common Stock" and (ii) a series of authorized common stock of the
Company, the shares of which are issuable upon conversion of the Non-Voting
Preferred Stock, consisting of 1,614,019 shares of Class A, Series II
(Non-Voting) Common Stock of the Company, par value $0.01 per share (the "Class
A Non-Voting Common Stock" and, collectively with the Class A Voting Common
Stock, the "Class A Common Stock"; the Class A Common Stock and the Class B
Common Stock, collectively, the "Common Stock");
WHEREAS, upon the terms and subject to the conditions set forth in
this Agreement, prior to the Closing hereunder, the Company shall cause to be
filed with the Secretary of State of the State of Delaware, pursuant to Section
151 of the DGCL, a Certificate of Designations substantially in the form
attached hereto as Exhibit B (the "Company Certificate of Designations"),
describing the powers, preferences and relative optional and other special
rights and qualifications, limitations and restrictions pertaining to the
Preferred Stock;
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WHEREAS, upon the effectiveness of the Charter Amendment and the
Company Certificate of Designations and the exercise by each Option Exercise
Seller of all of his or her Exercise Options, each Seller shall own,
beneficially and of record, (i) the number of shares of Voting Preferred Stock
set forth opposite the name of such Seller in the fourth column of Schedule I
hereto, (ii) the number of shares of Non-Voting Preferred Stock set forth
opposite the name of such Seller in the fifth column of Schedule I hereto, (iii)
the number of shares of Class B Voting Common Stock set forth opposite the name
of such Seller in the sixth column of Schedule I hereto and (iv) the number of
shares of Class B Non-Voting Common Stock set forth opposite the name of such
Seller in the seventh column of Schedule I hereto; and
WHEREAS, upon the terms and subject to the conditions contained in
this Agreement, the Sellers desire to sell to the Purchasers, and the Purchasers
desire to purchase and acquire from the Sellers, all of the shares of Preferred
Stock that will be owned by the Sellers at the Closing;
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants, representations, warranties and agreements herein contained,
and for other good and valuable consideration the receipt and adequacy of which
is hereby acknowledged, the Parties do hereby agree, intending to be legally
bound, as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. When used in this Agreement, the following
terms shall have their respective meanings as defined below.
"Affiliate" of any Person shall mean any Person directly or indirectly
controlling, controlled by, or under common control with, such Person; provided,
that, for the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities,
by Contract or otherwise.
"AMHI" shall mean Associated Materials Holdings Inc., a Delaware
corporation and a direct wholly-owned Subsidiary of the Company.
"AMI" shall mean Associated Materials Incorporated, a Delaware
corporation and a direct wholly-owned Subsidiary of AMHI.
"AMI Indenture" shall mean the Indenture, dated as of April 23, 2002,
between Wilmington Trust Company, as Trustee, and AMI, providing for the
issuance of AMI's outstanding 9 3/4% Senior Subordinated Notes, due 2012, as
amended, supplemented or otherwise modified.
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"Antitrust Authorities" shall mean the Federal Trade Commission, the
Antitrust Division of the United States Department of Justice, the attorneys
general of the several states of the United States, the Commission of
Competition appointed under the Competition Act and any other Governmental
Entity having jurisdiction with respect to the transactions contemplated hereby
pursuant to applicable Antitrust Laws.
"Antitrust Laws" shall mean the Sherman Act, as amended, the Clayton
Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, the
Competition Act, as amended, and all other federal, state and foreign statutes,
rules, regulations, orders, decrees, administrative and judicial doctrines, and
other laws that are designed or intended to prohibit, restrict or regulate
actions having the purpose or effect of monopolization or restraint of trade.
"Applicable Seller Percentage" shall mean, with respect to each
Seller, the applicable percentage figure set forth opposite the name of such
Seller in the eighth column of Schedule I hereto.
"Board" shall mean the Board of Directors of the Company.
"Business Day" shall mean any day except a Saturday, a Sunday or any
other day on which commercial banks are required or authorized to close in New
York, New York.
"Code" shall mean the United States Internal Revenue Code of 1986, as
amended, and the regulations promulgated and the rulings issued thereunder.
"Commission" shall mean the U.S. Securities and Exchange Commission.
"Company Indenture" shall mean the Indenture, dated as of March 4,
2004, between Wilmington Trust Company, as Trustee, and the Company, providing
for the issuance of the Company's outstanding 11 1/4% Senior Discount Notes, due
2014, as amended, supplemented or otherwise modified.
"Competition Act" shall mean the Competition Act (Canada) as amended,
and the regulations promulgated thereunder.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"GAAP" shall mean generally accepted accounting principles of the
United States of America consistently applied, as in effect from time to time.
"Governmental Entity" shall mean any domestic or foreign court,
arbitral tribunal, administrative agency or commission or other governmental or
regulatory agency or authority or any securities exchange.
"Harvest" shall mean Harvest Partners, Inc., a New York corporation.
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"Harvest-Related Sellers" shall mean, collectively, Harvest Partners
III, L.P., Harvest Partners III Beteilingungsgesellschaft Burgerlichen Rechts
(Mit Haftungsbeschrankung), Harvest Partners IV, L.P. and Harvest Partners IV,
GmbH & Co. KG.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, and the rules and regulations promulgated thereunder.
"Indentures" shall mean the AMI Indenture and the Company Indenture,
collectively.
"Intellectual Property" shall mean any of the following, whether
protected, created or arising under the laws of the United States or any other
jurisdiction: (a) patents and patent applications and rights in respect of
utility models and industrial designs, (b) registered and unregistered
trademarks and service marks, trade names and similar rights and applications to
register any of the foregoing, (c) copyrights (whether registered or
unregistered) and mask works, and applications for registration of copyrights or
mask works, (d) internet domain names and (e) know-how, processes, technical
data, specifications and other proprietary or confidential information that
derives economic value from not being generally known to other persons who can
obtain economic value through its disclosure.
"Law" shall mean any statute, law, ordinance, rule or regulation of
any Governmental Entity.
"Material Adverse Effect" shall mean:
(a) with respect to the Company, any event, circumstance, change,
condition, development or occurrence, either individually or in the aggregate
with all other events, circumstances, changes, conditions, developments or
occurrences having, or that would reasonably be expected to have, a material
adverse effect on the assets, liabilities, results of operations, financial
condition or business of the Company and its Subsidiaries, taken as a whole;
provided, that, none of the following shall, in any case, be deemed to
constitute a "Material Adverse Effect," nor shall any of the following be
considered in determining whether a "Material Adverse Effect" has occurred: (i)
changes (x) in economic, financial market, regulatory or political conditions
generally or (y) generally affecting the building products/siding and windows
industry or principal markets in which Company or any of its Subsidiaries
conducts business that, in the case of clause (y), do not adversely affect
Company and its Subsidiaries, taken as a whole, disproportionately to other
companies in the building products/siding and windows industry, (ii) changes in
laws, rules, regulations, or orders of any Governmental Entity or
interpretations thereof by any Governmental Entity or changes in accounting
requirements or principles, (iii) the announcement or pendency of the
transactions contemplated by this Agreement, (iv) the consummation of the
transactions contemplated hereby or any actions by any of the Parties or the
Company taken pursuant to this Agreement or in connection with the transactions
contemplated hereby, or (v) any natural disaster or any act of terrorism,
sabotage, military action or war (whether or not declared) or any escalation or
worsening thereof; in each case, which do not adversely affect Company and its
Subsidiaries, taken as a whole, disproportionately to other Persons affected
thereby.
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(b) with respect to any Seller, any change or effect having a material
adverse effect on the ability of such Seller to perform its obligations under
this Agreement or to consummate the transactions contemplated hereby on a timely
basis; and
(c) with respect to any Purchaser, any change or effect having a
material adverse effect on the ability of such Purchaser to perform its
obligations under this Agreement or to consummate the transactions contemplated
hereby on a timely basis.
"Management Sellers" shall mean, collectively, Michael Caporale, Jr.,
Kenneth L. Bloom, D. Keith LaVanway and Dennis W. Vollmershausen.
"Net Debt" shall mean the consolidated indebtedness of the Company,
net of cash and cash equivalents of the Company and its Subsidiaries, in each
case immediately prior to, and without giving effect to, the Closing, as
reflected in the Net Debt Certificate delivered by the Company to the Purchasers
two Business Days prior to the Closing Date.
"Net Debt Certificate" shall mean the certificate, prepared in good
faith by the Company and signed by its Chief Financial Officer, setting forth
the estimated Net Debt.
"Note Purchaser" shall mean each purchaser of Mezzanine Notes pursuant
to a Securities Purchase Agreement.
"Order" shall mean any judgment, order, injunction, decree, writ,
permit or license of any Governmental Entity or any arbitrator.
"Person" shall mean and include an individual, a partnership, a
limited liability partnership, a joint venture, a corporation, a limited
liability company, a trust, an unincorporated organization, a group and a
Governmental Entity.
"Purchase Price" shall mean $150,000,000 less 50% of the amount, if
any, by which Net Debt exceeds $550,000,000.
"Senior Credit Agreement" shall mean the Amended and Restated Credit
Agreement, dated as of August, 29, 2003 and as amended on March 4, 2004, among
AMI, Gentek Building Products Limited, AMHI, the financial institutions and
other Persons from time to time parties thereto, UBS AG, Stamford Branch, as the
U.S. administrative agent and Canadian term administrative agent, Canadian
Imperial Bank of Commerce, as the Canadian revolving administrative agent,
Credit Suisse First Boston, acting through its Cayman Islands Branch, as the
syndication agent, and CIBC World Markets Corp., as the documentation agent.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Significant Subsidiaries" shall mean AMHI, AMI, and Gentek Holdings,
Inc. (and for purposes of Sections 3.7, 3.9, 3.10 and 3.11, Significant
Subsidiaries shall be deemed to include Gentek Building Products Limited and
Gentek Building Products Inc.).
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"Subsidiary" shall mean, with respect to any Person (a) any
corporation more than fifty percent (50%) of whose stock of any class or classes
having by the terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the time stock
of any class or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is owned by such Person
directly or indirectly through one or more Subsidiaries of such Person and (b)
any partnership, association, joint venture or other entity in which such Person
directly or indirectly through one or more Subsidiaries of such Person has more
than a fifty percent (50%) equity interest.
"Third Party" shall mean any Person other than a Party.
"Transaction Documents" shall mean, collectively, the Restructuring
Agreement, the Holdings Stockholders Agreement, the Investcorp Management
Agreements and the Harvest Management Agreement.
Section 1.2. Additional Defined Terms. In addition to the terms
defined in Section 1.1, the following terms shall have the respective meanings
assigned thereto in the sections indicated below.
Section Defined Term Section
Defined Term
Additional Purchasers Section 9.14 Holdings Option Plan Section 6.13(b)
Agreement Preamble Holdings Stockholders Section 6.13(a)(iii)
Agreement
Amended and Restated Senior Credit Section 7.1(c) III Section 6.13(c)(ii)
Agreement
AMHI Section 6.13(a) Investcorp Advisory Section 6.13(c)(ii)
Agreements
Balance Section 6.13(a) Investcorp Financing Section 6.13(c)(ii)
Advisory Agreement
Balance Payment Date Section 6.13(a) Investcorp Management Section 6.13(c)(ii)
Advisory Agreement
Charter Amendment Recitals Investcorp M&A Advisory Section 6.13(c)(ii)
Agreement
Citigroup Section 3.13 Joinder Agreement Section 9.14
Class A Common Stock Recitals Liens Section 3.12(b)
Class A Non-Voting Common Stock Recitals Material Contracts Section 3.14
Class A Voting Common Stock Recitals Management Bonus Section 6.13(a)
Promissory Note
Class B Common Stock Recitals Management Bonuses Section 6.13(a)
Class B Non-Voting Common Stock Recitals Management Shares Recitals
Class B Voting Common Stock Recitals Mezzanine Notes Section 7.1(a)
Closing Section 2.2 Multiemployer Plan Section 3.9
Closing Date Section 2.2 Non-Voting Preferred Stock Recitals
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Section Defined Term Section
Defined Term
Closing Date Option Award Agreement Section 6.13(c)(i) Option(s) Section 3.3
Commission Filings Section 3.5(a) Option Exercise Seller Recitals
Common Stock Recitals Option Exercise Shares Recitals
Parties Preamble
Company Preamble Performance Vested Options Recitals
Company Certificate of Designation Recitals Permits Section 3.7(b)
Company Disclosure Letter Section 1.5 Preferred Stock Recitals
Company Option Plan Recitals Purchaser I Preamble
Company Property Section 3.15(b) Purchaser II Preamble
Confidentiality Agreement Section 6.2 Purchaser III Preamble
Consent Section 6.7 Purchaser IV Preamble
Contracts Section 3.14 Purchaser V Preamble
DGCL Recitals Purchasers Preamble
Purchasers Fee Section 6.11(b)
Dividend Promissory Note Section 6.13(a) Reclassification Recitals
Employee Benefit Plans Section 3.9 Registered IP Section 3.12(a)
Restructuring Agreement Section 6.13(c)(iii)
End Date Section 8.1(b)(ii) Returns Section 3.11(a)
Environmental Law Section 3.15(b) Restricted Payments Section 6.13(a)
Basket Amount
ERISA Section 3.9 Securities Purchase Section 7.1(c)
Agreement
Exercise Options Recitals Seller(s) Preamble
Existing Class A Common Stock Recitals
Existing Class B Common Stock Recitals
Existing Option Plan Recitals Sellers' Representative Preamble
Fee Section 6.11 Solvency Opinion Section 7.1(c)
Taxes Section 3.11(a)
Filing(s) Section 6.7 Time-Vested Options Recitals
Harvest Fee Section 6.11(a) Transaction Dividend Section 6.13(a)
Harvest Management Agreement Section 6.13(c)(ii) Transaction Fees Opinion Section 7.1(c)
Hazardous Materials Section 3.15(b) Unaudited Company Balance Section 3.5(c)
Sheet
Holdings Section 6.13(a) Unaudited Company Balance Section 3.5(c)
Sheet Date
Unexercised Company Recitals
Options
Holdings Certificate of Designations Section 6.13(a) Voting Preferred Stock Recitals
Holdings Charter Section 6.13(a) Withholding Amount Section 6.13(b)
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Section 1.3. Construction. In this Agreement, unless the context
otherwise requires:
(a) any reference in this Agreement to "writing" or comparable
expressions includes a reference to facsimile transmission or comparable
means of communication, but shall not refer to email or other electronic
communication;
(b) the phrases "delivered" or "made available", when used in this
Agreement, shall mean that the information referred to has been physically
or electronically delivered to the relevant parties (including, in the case
of "made available" to Purchaser, material that has been posted, retained
and thereby made available to Purchaser throughout the period commencing on
October 4, 2004 through the Closing Date through the on-line "virtual data
room" established by the Company through Citigroup);
(c) words expressed in the singular number shall include the plural
and vice versa; words expressed in the masculine shall include the feminine
and neuter gender and vice versa;
(d) references to Articles, Sections, Exhibits, the preamble and
recitals are references to articles, sections, exhibits, the preamble and
recitals of this Agreement, and the descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only,
do not constitute a part of this Agreement and shall not affect in any way
the meaning or interpretation of this Agreement;
(e) reference to "day" or "days" are to calendar days;
(f) references to "the date hereof" shall mean as of the date of this
Agreement;
(g) the words "hereof", "herein", "hereto" and "hereunder", and words
of similar import, when used in this Agreement, shall refer to this
Agreement as a whole and not to any provision of this Agreement;
(h) this "Agreement" or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may be, such
other agreement or document as the same may have been, or may from time to
time be, amended, varied, novated or supplemented;
(i) "include", "includes," and "including" are deemed to be followed
by "without limitation" whether or not they are in fact followed by such
words or words of similar import; and
(j) references to dollars or "$" are to United States of America
dollars.
Section 1.4. Exhibits and Disclosure Letters. The Exhibits and the
Company Disclosure Letter to this Agreement are incorporated into and form an
integral part of this Agreement. If an Exhibit is a form of agreement, such
agreement, when executed and delivered by the parties thereto, shall constitute
a document independent of this Agreement.
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Section 1.5. Knowledge. When any representation, warranty, covenant or
agreement contained in this Agreement is expressly qualified by reference to the
"Knowledge of the Company" or words of similar import, it shall mean the actual
knowledge of the individuals set forth in Section 1.5 of the disclosure letter
delivered by the Company to Purchaser upon or prior to entering into this
Agreement (the "Company Disclosure Letter").
ARTICLE II
PURCHASE AND SALE OF PREFERRED STOCK
Section 2.1. Purchase and Sale of Preferred Stock. On the terms and
subject to the conditions set forth in this Agreement, at the Closing, each
Seller shall sell, assign and transfer to the Purchasers, and the Purchasers
shall purchase and acquire from each Seller all of the shares of Preferred Stock
owned by such Seller as of the Closing (as set forth opposite the name of such
Seller in the fourth and fifth columns of Schedule I hereto) with the aggregate
number of shares to be purchased by each such Purchaser as set forth on Schedule
II hereto.
Section 2.2. Closing. Unless this Agreement shall have been terminated
and the transactions contemplated hereby shall have been abandoned pursuant to
Article VIII, and subject to the satisfaction or waiver of all of the conditions
set forth in Article VII, the closing of the purchase and sale of the Preferred
Stock contemplated by Section 2.1 (the "Closing") shall take place at 10:00 A.M.
at the offices of White & Case LLP, 1155 Avenue of the Americas, New York, New
York 10036-2787, as soon as practicable, but in any event within three (3)
Business Days after the last of the conditions set forth in Article VII shall
have been satisfied or waived, other than those conditions that by their nature
are to be satisfied at the Closing (but subject to the fulfillment or waiver of
those conditions at the Closing), or at such other date, time or place as
Sellers' Representative and the Purchasers shall agree in writing. The date on
which the Closing occurs is herein referred to as the "Closing Date".
Section 2.3. Payment of Purchase Price; Delivery of Shares of
Preferred Stock.
(a) The Company shall deliver to the Purchasers the Net Debt
Certificate two Business Days prior to the Closing Date.
(b) At the Closing, in full consideration for the purchase by the
Purchasers of the shares of Preferred Stock to be purchased from each Seller,
the Purchasers shall pay the Purchase Price to Sellers' Representative on behalf
of the Sellers (for the ratable benefit of each Seller in accordance with its
Applicable Seller Percentage) by wire transfer of immediately available funds to
the account of Sellers' Representative designated in writing to the Purchasers
at least two (2) Business Days prior to the Closing Date.
(c) At the Closing, each Seller shall deliver to the Purchaser I, on
behalf of all Purchasers (and each Purchaser hereby agrees that such delivery to
Purchaser I shall constitute delivery to such Purchaser of its applicable number
of shares of Preferred Stock), all certificates representing the shares of
Preferred Stock owned by such Seller, each duly endorsed in blank or accompanied
by either stock powers duly executed in blank by such Seller or such other
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instruments of transfer as are reasonably acceptable to the Purchasers, with all
necessary transfer tax and other revenue stamps, affixed and canceled.
(d) At the Closing, Sellers' Representative shall pay to each Seller,
by wire transfer of immediately available funds to the account of such Seller
designated in writing to Sellers' Representative at least two Business Days
prior to the Closing Date, an amount equal to the Purchase Price multiplied by
such Seller's Applicable Seller Percentage.
(e) Upon the surrender by Purchaser I to the Company of the
certificates representing the shares of Preferred Stock delivered to Purchaser I
pursuant to Section 2.3(c), the Company shall, at the Closing, (i) cause such
certificates to be duly canceled, (ii) deliver to the Purchasers one or more
certificate(s), issued in the names of the Purchasers and representing, in the
aggregate, the number of shares of Preferred Stock purchased by each Purchaser
pursuant to Section 2.3(b), as set forth in Schedule II hereto and (iii) cause
the books and records of the Company to reflect the record ownership by each
Purchaser of such shares of Preferred Stock.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3. The Company hereby represents and warrants to the
Purchasers (and, solely with respect to the representations and warranties
contained in Sections 3.1, 3.2 and 3.4, to the Sellers), except (a) as set forth
in the Company Disclosure Letter or (b) as disclosed in any Commission Filings
filed or amended prior to the date hereof, if the applicability of any such
disclosure in the Commission Filings to the subject matter of any representation
and warranty contained in this Article III is reasonably apparent, as follows:
Section 3.1. Due Organization, Good Standing and Corporate Power. Each
of the Company and its Significant Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and each such Person has all requisite power
(corporate or otherwise) and authority to own, lease and operate its properties
and to carry on its business as now being conducted. The Company and each of its
Significant Subsidiaries is duly qualified or licensed to do business and is in
good standing in each jurisdiction in which the property owned, leased or
operated by it, or the nature of the business conducted by it makes such
qualification necessary, except in such jurisdictions where the failure to be so
qualified or licensed and in good standing does not have a Material Adverse
Effect on the Company. The Company has made available to Purchasers prior to the
date hereof complete and correct copies of the Company's certificate of
incorporation and the Company's By-laws and the comparable governing documents
of each of its Significant Subsidiaries, in each case, as amended and in full
force and effect as of the date hereof.
Section 3.2. Authorization; Noncontravention. The Company has the
requisite corporate power and authority to execute and deliver this Agreement
and each other Transaction Document to be executed and delivered by the Company,
to perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance of this Agreement, and of each other Transaction Document
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to be executed and delivered by the Company, and the consummation by the Company
of the transactions contemplated hereby and thereby, have been duly authorized
and approved by the Board and, except as contemplated by Section 6.12, no other
corporate action on the part of the Company is necessary to authorize the
execution, delivery and performance of this Agreement and such other Transaction
Documents by the Company and the consummation of the transactions contemplated
hereby and thereby. This Agreement has been, and each other Transaction Document
to be executed and delivered by the Company, when delivered in accordance with
the terms hereof, will be, duly executed and delivered by the Company and,
assuming that this Agreement and each other Transaction Document constitutes a
valid and binding obligation of each other party thereto, constitutes a valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, except to the extent that its enforceability may be
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
by general equitable principles. Except as set forth in Section 3.2 of the
Company Disclosure Letter, the execution and delivery and performance of this
Agreement by the Company do not, and the execution and delivery and performance
by the Company of each other Transaction Document to be executed and delivered
by the Company, will not (a) conflict with any of the provisions of the
certificate of incorporation or by-laws or other equivalent charter documents,
as applicable, of the Company or any of its Significant Subsidiaries, in each
case, as amended to the date of this Agreement, (b) conflict with or result in a
breach of, or default under (with or without notice or lapse of time, or both),
any contract, agreement, indenture, mortgage, deed of trust, lease or other
instrument to which the Company or any of its Significant Subsidiaries is a
party or by which the Company, any of its Significant Subsidiaries or any of
their respective assets are bound or subject or (c) subject to the consents,
approvals, authorizations, declarations, filings and notices referred to in
Section 3.4, contravene any domestic or foreign Law or any Order currently in
effect, which, in the case of clauses (b) and (c) above, would have,
individually or in the aggregate, a Material Adverse Effect on the Company.
Section 3.3. Capital Stock. (a) As of the date hereof, the authorized
capital stock of the Company consists of (i) 2,500,000 shares of Existing Class
A Common Stock, (ii) 2,500,000 shares of Existing Class B Common Stock and (iii)
3,000,000 shares of the 8% Series A Cumulative Redeemable Preferred Stock, par
value $0.01 per share. As of the date hereof, (w) 1,672,352 shares of Existing
Class A Common Stock are issued and outstanding, (x) 19,118 shares of Existing
Class B Common Stock are issued and outstanding, (y) no shares of Preferred
Stock are issued and outstanding and (z) 422,549 shares of Existing Class A
Common Stock are subject to issuance upon exercise of Exercise Options. All
issued and outstanding shares of capital stock of the Company and each of its
Subsidiaries have been duly authorized and validly issued and are fully paid and
nonassessable, and are not subject to any preemptive rights. Except as set forth
in this Section 3.3, as of the date hereof, no shares of capital stock or other
equity securities of the Company are issued, reserved for issuance or
outstanding. Except as described in this Section 3.3, as set forth in Section
3.3 of the Company Disclosure Letter or as contemplated by this Agreement, the
Company is not party to any outstanding option, warrant, call, subscription or
other right (including any preemptive right), agreement or commitment which
obligates the Company to issue, sell or transfer, or repurchase, redeem or
otherwise acquire, any shares of the capital stock of the Company.
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(b) Immediately after the Reclassification, the shares of Class B
Common Stock and the shares of Preferred Stock held by each Seller will be duly
authorized, validly issued, fully-paid and nonassessable. The shares of
Preferred Stock that are being purchased by the Purchasers hereunder, when
issued, sold and delivered in accordance with the terms of the Charter Amendment
and this Agreement, and the shares of Class A Common Stock, when issued upon the
conversion of the Preferred Stock in accordance with the terms of the Company
Certificate of Designations, will be duly authorized, validly issued,
fully-paid, and nonassessable.
(c) After giving effect to the transactions contemplated by this
Agreement and the Restructuring Agreement, assuming that the Holdings Charter
and the Holdings Certificate of Designations are accepted for filing by the
Secretary of State of the State of Delaware, and upon the exercise by each
Option Exercise Seller of all of his or her Exercise Options, the authorized,
issued and outstanding equity capitalization of Holdings at the Closing will be
as set forth on Schedule I.
Section 3.4. Consents and Approvals. No consent, approval or
authorization of, or declaration or filing with, or notice to, any Governmental
Entity or any other third party is required with respect to the Company or any
of its Significant Subsidiaries in connection with the execution and delivery by
the Company of this Agreement or any other Transaction Document to be executed
and delivered by the Company or the consummation by the Company of the
transactions contemplated hereby or thereby, except for (a) compliance with any
applicable requirements of the Securities Act and the Exchange Act, (b)
compliance with any applicable requirements of any applicable state securities,
blue sky or takeover laws, (c) those set forth in Section 3.4 of the Company
Disclosure Letter and (d) any other consents, filings, authorizations or
approvals which, if not made or obtained, would not have, individually or in the
aggregate, a Material Adverse Effect on the Company.
Section 3.5. Company Reports and Financial Statements. (a) Since May
17, 2004, AMI has filed all material forms, reports, schedules, statements and
other documents with the Commission relating to periods commencing on or after
such date required to be filed by it pursuant to the Exchange Act as in effect
on the dates of such filings and the rules and regulations of the Commission
thereunder in effect on such dates and applicable to such filings (such forms,
reports, schedules, statements and other documents (including all exhibits and
schedules thereto and documents incorporated by reference therein), in each
case, as amended, being hereinafter referred to as the "Commission Filings"),
and, as of their respective dates, the Commission Filings complied in all
material respects with all applicable requirements of the Exchange Act and the
rules and regulations of the Commission promulgated thereunder, except to the
extent superceded or amended by a Commission Filing filed subsequently but prior
to the date hereof. The Commission Filings do not, as of the date of the
effectiveness of the Registration Statement on Form S-4 filed with the
Commission on May 14, 2004 and as of the date of filing in the case of any other
Commission Filings, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they were
made, not misleading, except as set forth in or amended by a subsequent
Commission Filing.
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(b) Each of the consolidated financial statements of AMI contained in
the Commission Filings have been prepared in accordance with GAAP (except (i) as
may be indicated therein or in the notes or schedules thereto and (ii) in the
case of unaudited quarterly financial statements, as permitted by the rules and
regulations of the Commission) and present fairly, in all material respects, the
consolidated financial position of AMI as of the dates thereof and the
consolidated results of its operations and changes in cash flows for the periods
then ended (subject, in the case of unaudited quarterly statements, to normal
year-end audit adjustment).
(c) The Company has heretofore delivered or caused to be delivered to
Purchasers (i) the audited consolidated balance sheet of AMHI and its
Subsidiaries as at January 3, 2004, and the related audited combined statements
of operations, shareholders' equity and cash flows for the fiscal year then
ended, all certified by the auditors, (ii) the unaudited consolidated balance
sheet of AMHI and its Subsidiaries as at October 2, 2004 and the related
unaudited consolidated statements of operations, shareholders' equity and cash
flows for the nine (9) month period then ended (the unaudited consolidated
balance sheet of AMHI and its Subsidiaries as at October 2, 2004 (the "Unaudited
Company Balance Sheet Date") is hereinafter referred to as the "Unaudited
Company Balance Sheet") and (iii)(x) the unaudited balance sheet of the Company
as at October 2, 2004 and (y) the related unaudited statements of operations,
shareholders' equity and cash flows for the nine (9) month period then ended on
a pro forma basis. The financial statements referred to in this clause (c)
(other than the financial statements referred to in subclause (iii)(y) of this
clause (c)), including the footnotes thereto, except as described therein, have
been prepared in accordance with GAAP consistently followed throughout the
periods indicated and present in all material respects the consolidated
financial position and consolidated results of operation of AMHI and its
Subsidiaries or the Company, as the case may be, as of the dates and for the
periods indicated (except, in the case of the unaudited financial statements,
for the absence of notes thereto and subject to year-end adjustments and
otherwise described therein).
Section 3.6. Absence of Certain Changes; Undisclosed Liabilities. (a)
Since the Unaudited Company Balance Sheet Date, (i) the businesses of the
Company and each of its Significant Subsidiaries have been conducted in all
material respects in the ordinary course and (ii) except as set forth in Section
3.6 of the Company Disclosure Letter, neither the Company nor any of its
Significant Subsidiaries have:
(A) materially increased the compensation of any officer or granted
any general salary or benefits increase to their respective employees, other
than in the ordinary course of business;
(B) acquired any business or Person, by merger or consolidation,
purchase of substantial assets or equity interests, or by any other manner, in a
single transaction or a series of related transactions, or entered into any
contract, letter of intent or similar arrangement with respect to the foregoing;
(C) changed their accounting principles, practices or methods except
as required by Law or GAAP;
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(D) made any material Tax election or settlement and/or compromise of
any material Tax liability or incurred any material liability for Taxes other
than in the ordinary course of business or filing of a claim for refund of an
amount of Taxes; or
(E) incurred any material liabilities, whether accrued, contingent,
absolute, determined, determinable or otherwise, other than (i) liabilities
disclosed on the Unaudited Company Balance Sheet, (ii) liabilities that would
not be required under GAAP to be reflected on the Unaudited Company Balance
Sheet or in the footnotes thereto, (iii) liabilities incurred in connection with
the performance of the Transaction Documents and (iv) liabilities incurred in
the ordinary course of business consistent with the past practices of the
Company and its Subsidiaries.
(b) Since January 3, 2004, there has not been a Material Adverse
Effect on the Company.
Section 3.7. Compliance with Laws. (a) The operations of the Company
and its Significant Subsidiaries are not being conducted in violation of any Law
or Order applicable to the Company or its Significant Subsidiaries, except for
violations that do not have, individually or in the aggregate, a Material
Adverse Effect on the Company.
(b) The Company and its Significant Subsidiaries hold all federal,
state, local and foreign permits, approvals, licenses, authorizations,
certificates, rights, exemptions and orders from Governmental Entities (the
"Permits") that are necessary for the operation of the business of the Company
and/or its Significant Subsidiaries as now conducted, except to the extent that
any such failure to hold Permits or any such default does not have, individually
or in the aggregate, a Material Adverse Effect on the Company. As of the date of
this Agreement, no suspension or cancellation of any of the Permits is pending
or, to Knowledge of the Company, threatened in writing, except where the
suspension or cancellation of any of the Permits, individually or in the
aggregate, does not have a Material Adverse Effect on the Company.
Section 3.8. Litigation. Except as set forth in Section 3.8 of the
Company Disclosure Letter, as of the date of this Agreement, there is no action,
suit, proceeding at law or in equity, or any arbitration or any administrative
or other proceeding (or to the Knowledge of the Company, any investigation) by
or before any Governmental Entity, pending, or, to the Knowledge of the Company,
threatened, against or affecting the Company or any of its Subsidiaries, or any
of their respective properties or rights which would have, individually or in
the aggregate, a Material Adverse Effect on the Company.
Section 3.9. Employee Benefit Plans. Each employee benefit plan within
the meaning of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and each other material benefit, severance,
termination, retention, change in control, employment, stock option, stock
purchase and stock-based or compensation plan, program or arrangement maintained
by the Company and/or any of its Significant Subsidiaries, or to which the
Company and/or any of its Significant Subsidiaries contributes (or has an
obligation to contribute) or is a party (collectively, the "Employee Benefit
Plans") is listed in Section 3.9 of the Company Disclosure Letter. Except as set
forth in Section 3.9 of the Company Disclosure Letter: (a) each Employee Benefit
Plan (other than any Employee Benefit Plan that is a
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"multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a
"Multiemployer Plan")) is in material compliance with applicable Law and has
been administered and operated in all material respects in accordance with its
terms; (b) each Employee Benefit Plan (other than any Multiemployer Plan) which
is intended to be "qualified" within the meaning of Section 401(a) of the Code
has received, or has timely requested, a favorable determination letter from the
Internal Revenue Service and, to the Knowledge of the Company, no event has
occurred and no condition exists that would reasonably be expected to result in
the revocation of any such determination; (c) no Employee Benefit Plan covered
by Title IV of ERISA (other than any Multiemployer Plan) has been terminated and
no proceedings have been instituted to terminate or appoint a trustee to
administer any such plan; (d) no "reportable event" (as defined in Section 4043
of ERISA) has occurred with respect to any Employee Benefit Plan covered by
Title IV of ERISA (other than any Multiemployer Plan), other than with respect
to the transactions contemplated by this Agreement; (e) no Employee Benefit Plan
(other than any Multiemployer Plan) subject to Section 412 of the Code or
Section 302 of ERISA has incurred any accumulated funding deficiency within the
meaning of Section 412 of the Code or Section 302 of ERISA, or obtained a waiver
of any minimum funding standard or an extension of any amortization period under
Section 412 of the Code or Section 303 or 304 of ERISA; (f) neither the Company
nor any of its Significant Subsidiaries, nor, to the Knowledge of the Company,
any other "disqualified person" or "party in interest" (as defined in Section
4975(e)(2) of the Code and Section 3(14) of ERISA, respectively) has engaged in
any transactions in connection with any Employee Benefit Plan that would
reasonably be expected to result in the imposition of a penalty pursuant to
Section 502(i) of ERISA or a tax pursuant to Section 4975 of the Code, which
would result in a material liability of the Company; (g) the Company and its
Significant Subsidiaries have made all contributions to each Multiemployer Plan
required by the terms of each such Multiemployer Plan or any applicable
collectively bargained agreement; (h) neither the Company nor any of its
Significant Subsidiaries has, to the Knowledge of the Company, incurred any
unsatisfied withdrawal liability under Part 1 of Subtitle E of Title IV of ERISA
to any Multiemployer Plan; (i) no claim, action or litigation has been made,
commenced or, to the Knowledge of the Company, threatened in writing with
respect to any Employee Benefit Plan (other than routine claims for benefits
payable in the ordinary course, and appeals of such denied claims), which would
result in a material liability of the Company; (j) all contributions required to
be made as of the date of this Agreement to the Employee Benefit Plans have been
made or provided for; (k) there are no pending, nor has Company or any
Significant Subsidiary received, written notice of any threatened, audits,
investigations or administrative proceedings against or otherwise involving any
of the Employee Benefit Plans (other than routine claims for benefits that could
not, individually, or in the aggregate, reasonably be expected to result in a
material liability of the Company or a Significant Subsidiary); (l) the number
of employees for which Company and its Significant Subsidiaries contribute to
Multiemployer Plans does not exceed 100 employees as of the date of this
Agreement, and the aggregate contributions of the Company and its Significant
Subsidiaries to all such Multiemployer Plans for the calendar year 2003 did not
exceed $200,000; (m) the execution of this Agreement and the consummation of the
transactions contemplated hereby will not result in the payment or acceleration
of any benefits or amounts under any Employee Benefit Plan; (n) except for
continuation health coverage required under applicable law, the Company and its
Significant Subsidiaries have no present or future obligation to make any
material payment to or under any "employee welfare plan" (as defined in Section
3(1) of ERISA) which provides benefits to retirees or to otherwise provide
post-employment or
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retiree health, life insurance or other welfare benefits; and (o) there has been
no partial wind-up of any Canadian pension plan that could subject the Company,
any of its Subsidiaries or any such plan to material liability.
Section 3.10. Labor Matters. As of the date of this Agreement, except
as set forth in Section 3.10 of the Company Disclosure Letter, no employee of
the Company nor any of its Significant Subsidiaries is represented by any union
or any collective bargaining agreement. As of the date of this Agreement, no
labor organization and, to the Knowledge of the Company, no group of employees
of the Company or any of its Significant Subsidiaries has made a pending demand
for recognition or certification, and there are no representation or
certification proceedings or petitions seeking a representation proceeding
presently pending or, to the Knowledge of the Company, threatened to be brought
or filed with the National Labor Relations Board or any other labor relations
tribunal or authority. Except for such matters which do not have, individually
or in the aggregate, a Material Adverse Effect on the Company, as of the date of
this Agreement, there is no unfair labor practice, labor dispute (other than
routine individual grievances) or labor arbitration proceeding pending or, to
the Knowledge of Company, threatened against the Company or its Significant
Subsidiaries relating to their respective businesses.
Section 3.11. Taxes. (a) Tax Returns. The Company and each of its
Significant Subsidiaries has filed or caused to be filed, or shall file or cause
to be filed all material returns, statements, forms and reports (including
amendments thereto) for Taxes (the "Returns") that are required to be filed by,
or with respect to, the Company and its Significant Subsidiaries on or prior to
the Closing Date (taking into account any applicable extension of time within
which to file). "Taxes" shall mean all taxes, assessments, charges, duties,
fees, levies or other governmental charges including all United States federal,
state, local, foreign and other income, franchise, profits, capital gains,
capital stock, transfer, sales, use, occupation, property, excise, severance,
windfall profits, stamp, license, payroll, withholding and other taxes,
assessments, charges, duties, fees, levies or other governmental charges of any
kind whatsoever (whether payable directly or by withholding and whether or not
requiring the filing of a Return), all estimated taxes, deficiency assessments,
additions to tax, penalties and interest.
(b) Payment of Taxes. All material Taxes and material Tax liabilities
of the Company and its Significant Subsidiaries that are due and payable on or
prior to the Closing Date have been (or will be) paid on or prior to the Closing
Date or accrued on the books and records of the Company and its Significant
Subsidiaries in accordance with GAAP.
(c) Other Tax Matters. Except as set forth in Section 3.11(c) of the
Company Disclosure Letter:
(i) neither the Company nor any of its Significant Subsidiaries is
currently the subject of an audit or other examination (or has, to the
Knowledge of the Company, received written notice of any threatened audit
or examination) of Taxes by the tax authorities of any nation, state or
locality nor has the Company or any of its Significant Subsidiaries
received any written notices from any taxing authority relating to any
issue which could materially affect the Tax liability of such Company or
any of its Significant Subsidiaries;
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(ii) neither the Company nor any of its Significant Subsidiaries has
(A) entered into a written agreement or waiver extending any statute of
limitations relating to the payment or collection of a material amount of
Taxes of the Company or any of its Significant Subsidiaries that has not
expired or (B) is presently contesting the material Tax liability of the
Company or any of its Significant Subsidiaries before any court, tribunal
or agency;
(iii) all material Taxes that the Company or any of its Significant
Subsidiaries is (or was) required by Law to withhold or collect in
connection with amounts paid or owing to any employee, independent
contractor, creditor, stockholder or other Third Party have been duly
withheld or collected, and have been paid over to the proper authorities to
the extent due and payable;
(iv) the Company has not been a "United States real property holding
corporation" within the meaning of Section 897(c)(2) of the Code during the
applicable period specified in Section 897(c)(1)(A) of the Code;
(v) neither the Company nor any of its Significant Subsidiaries has
taken any reporting position on a Tax Return, which reporting position (a)
if not sustained would be reasonably likely, absent disclosure, to give
rise to a penalty for substantial understatement of federal income Tax
under Section 6662 of the Code (or any similar provision of state, local or
foreign Tax law), and (b) has not adequately been disclosed on such Tax
Return in accordance with Section 6662(d)(2)(B) of the Code (or similar
provision of state, local or foreign Tax law); and
(vi) neither the Company nor any of its Significant Subsidiaries has
any liability for Taxes of any person (other than members of the affiliated
group, within the meaning of Section 1504(a) of the Code, filing
consolidated federal income Tax Returns of which the Company is the common
parent) under Treasury Regulation ss. 1.1502-6 (or similar provision of
state, local or foreign law) as a transferee or successor, by contract or
otherwise.
Section 3.12. Intellectual Property. (a) Section 3.12(a) of the
Company Disclosure Letter sets forth an accurate and complete list of all
registered trademarks and registered servicemarks, patents, and registered
copyrights, and any pending applications to register any of the foregoing
(including any pending patent applications), owned (in whole or in part) by the
Company or any of its Significant Subsidiaries (including registered copyrights
that are exclusively licensed from third parties), identifying for each whether
it is owned by or, in the case of registered copyrights, exclusively licensed to
the Company or the relevant Significant Subsidiary (the Intellectual Property
required to be listed in Section 3.12(a) of the Disclosure Schedule being
referred to as the "Registered IP"). Except as set forth in Section 3.12(a) of
the Company Disclosure Letter or as would not have a Material Adverse Effect on
the Company, no Registered IP is or has been involved in any interference,
reissue, reexamination, opposition or cancellation proceeding.
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(b) Except as set forth in Section 3.12(b) of the Company Disclosure
Letter or as does not have a Material Adverse Effect on the Company, the Company
or one of its Significant Subsidiaries owns or possesses adequate licenses or
other valid rights to use, free and clear of any and all liens, security
interests, charges, pledges, encumbrances, restrictions or other adverse claims
or interests of any kind or nature ("Liens"), all Registered IP and all other
material Intellectual Property used in the business of the Company or any of its
Significant Subsidiaries, which constitutes all of the material Intellectual
Property that is necessary for the conduct of the Company's or its Significant
Subsidiaries' businesses as currently conducted.
(c) Except as set forth in Section 3.12(c) of the Company Disclosure
Letter or as would not have a Material Adverse Effect on the Company, neither
the Company nor any of its Significant Subsidiaries has received any written
notice or written claim challenging the ownership, use, validity or
enforceability of any Registered IP or of any other material Intellectual
Property used by the Company or any of its Significant Subsidiaries.
(d) Except as set forth in Section 3.12 of the Company Disclosure
Letter, each of the Company and its Significant Subsidiaries has taken
commercially reasonable steps to (i) protect its rights in its material
Intellectual Property and (ii) maintain the confidentiality of all information
that constitutes a material trade secret of the Company or any such Significant
Subsidiary.
(e) Except as does not have a Material Adverse Effect on the Company,
(i) the Registered IP is valid and subsisting and, to the Knowledge of the
Company, enforceable and (ii) the Company has not taken any action or failed to
take any action that reasonably would be expected to result in the abandonment,
cancellation, forfeiture, relinquishment, invalidation or unenforceability of
any of the Registered IP.
(f) Except as does not have a Material Adverse Effect on the Company,
the operation of the business of the Company and its Significant Subsidiaries,
has not infringed upon or misappropriated any Intellectual Property of any Third
Party, and neither the Company nor any of its Significant Subsidiaries has
received any written notice or written claim asserting that any such
infringement or misappropriation is or may be occurring or has or may have
occurred. To the Knowledge of the Company, no Third Party is misappropriating or
infringing any Intellectual Property owned by or exclusively licensed to the
Company or any of its Significant Subsidiaries, which misappropriation or
infringement has a Material Adverse Effect on the Company.
(g) Except as set forth in Section 3.12 of the Company Disclosure
Letter, neither the Company nor any of its Significant Subsidiaries has granted
any exclusive license with respect to any material Intellectual Property owned
by such Person.
Section 3.13. Broker's or Finder's Fee. Except for (i) the fees of
Citigroup Global Markets Inc. ("Citigroup") (whose fees and expenses shall be
paid by the Company in accordance with the Company's agreement with such firm)
and (ii) the fees payable to Harvest pursuant to Section 6.11(a) and (iii) the
fees payable to Purchaser pursuant to Section 6.11(b), no agent, broker, Person
or firm acting on behalf of the Company is, or shall be, entitled to any
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broker's fees, finder's fees or commissions from the Company or any of its
Subsidiaries in connection with this Agreement or any of the transactions
contemplated hereby.
Section 3.14. Certain Contracts and Arrangements. (a) As of the date
hereof, other than those Contracts that are set forth in Section 3.14 of the
Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a
party to or bound by any legally enforceable contracts, agreements, arrangements
or instruments ("Contracts") of the following nature (collectively, the
"Material Contracts"):
(i) Contracts that are required to be filed as an exhibit to a
Commission Filing (including Contracts in existence on the date of this
Agreement that would be required to be filed as an exhibit to future
filings with the Commission under the Exchange Act);
(ii) Contracts outside the ordinary course of business involving
payments by or to the Company or any Subsidiary of more than $500,000 in
the year ending December 31, 2004 or in any 12-month period after the date
hereof;
(iii) Contracts that materially restrain, limit or impede the
Company's or its Significant Subsidiaries' ability to compete with or
conduct any business or line of business; and
(iv) any contract for the employment of any officer, employee or
consultant (other than any contract which is terminable without liability
upon notice of 180 days or less), or any contract of employment with a
former officer, employee or consultant, pursuant to which, in any case,
payments in excess of $100,000 in any twelve month period are required to
be made by the Company or any Subsidiary after the date hereof.
(b) Except as does not have a Material Adverse Effect on the Company,
(i) each of the Material Contracts is in full force and effect and (ii) neither
the Company nor any of its Significant Subsidiaries is in breach of or default
under any Material Contract. For all purposes of this Agreement, any collective
bargaining agreement to which the Company or any of its Significant Subsidiaries
is a party shall not be deemed to be a "Material Contract".
Section 3.15. Environmental Laws and Regulations. (a) Except as would
not have, individually or in the aggregate, a Material Adverse Effect on the
Company, (i) the Company and its Significant Subsidiaries are and have been in
compliance with all applicable Environmental Laws and have obtained and are in
compliance with all Permits required of them under such Environmental Laws, (ii)
there are no suits, actions, claims or proceedings pending, or, to the Knowledge
of the Company, threatened against the Company or its Significant Subsidiaries,
any Company Property or any Person whose liability for such matters the Company
may have retained or assumed either contractually or by law under any
Environmental Law and (iii) other than as set forth in Section 3.15(a) of the
Company Disclosure Letter, there are no facts, circumstances or conditions
relating to the past or present business or operations of the Company or its
Significant Subsidiaries, to any Company Property or to any Person whose
liability for such matters the Company may have retained or assumed either
contractually or by
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law, including, without limitation, any manufacture, use, transport, treatment,
storage, disposal, release, or threatened release of Hazardous Materials, that
could give rise to any claim under any Environmental Law.
(b) For purposes of this Agreement, the following terms shall have the
following meanings: (i) "Company Property" shall mean any real property and
improvements thereon currently owned, leased or operated by the Company or its
Significant Subsidiaries, (ii) "Environmental Law" shall mean any Law, Order or
other requirement of Law, including any principle of common law, relating to the
protection of human health or the environment, including but not limited to Laws
regarding the manufacture, use, transport, treatment, storage, disposal, release
or threatened release of Hazardous Materials; and (iii) "Hazardous Materials"
shall mean any solid waste, hazardous waste, pollutant, hazardous substance,
toxic substance, petroleum products, asbestos, urea formaldehyde insulation,
polychlorinated biphenyls or any substance listed, classified or regulated as
hazardous or toxic under such Law, Order or other requirement of any
Environmental Law.
(c) The consummation of the transactions contemplated by this
Agreement does not require any approvals under the New Jersey Industrial Site
Recovery Act.
(d) The representations and warranties in this Section 3.15 are the
sole and exclusive representations and warranties of the Company concerning
environmental matters.
Section 3.16 Insurance. The Company and its Significant Subsidiaries
maintain insurance policies of the type and in such amounts as the Company
reasonably believes is appropriate for the conduct of the business or the
ownership and operation of the assets of Company and its Significant
Subsidiaries. All such insurance policies are in full force and effect in all
material respects. Neither Company nor any Significant Subsidiary has received
any written notice of cancellation or modification in coverage amounts of any
such insurance policies.
Section 3.17. Restricted Payments. As of the Closing Date, Restricted
Payments (as such term is defined in the AMI Indenture) in an aggregate amount
of $41,100,000 may be paid under Section 4.04(a)(3) of the AMI Indenture and no
Restricted Payments (as so defined) have been made under Section 4.04(b)(9) of
the AMI Indenture. After giving effect to the Amended and Restated Senior Credit
Agreement permitting such payments to be made, as of the Closing Date,
Restricted Payments (as such term is defined in the Company Indenture) in an
aggregate amount of $42,300,000 may be paid under Section 4.04(a)(3) of the
Company Indenture and no Restricted Payments (as so defined) have been made
under Section 4.04(b)(6) of the Company Indenture.
Section 3.18 Exclusivity of Representations. THE REPRESENTATIONS AND
WARRANTIES MADE BY THE COMPANY IN THIS ARTICLE III ARE THE EXCLUSIVE
REPRESENTATIONS AND WARRANTIES MADE BY THE COMPANY WITH RESPECT TO THE COMPANY
AND ITS SUBSIDIARIES, INCLUDING THE ASSETS OF EACH OF THEM. THE COMPANY HEREBY
DISCLAIMS ANY OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH
RESPECT TO ITSELF OR ANY OF ITS SUBSIDIARIES. THE COMPANY IS NOT, DIRECTLY OR
INDIRECTLY, MAKING ANY
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REPRESENTATIONS OR WARRANTIES REGARDING ANY PRO-FORMA FINANCIAL INFORMATION,
FINANCIAL PROJECTIONS OR OTHER FORWARD-LOOKING STATEMENTS OF THE COMPANY OR ANY
OF ITS SUBSIDIARIES.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF EACH SELLER
Section 4. Each Seller hereby severally (as to such Seller only and
not jointly) represents and warrants to the Purchasers as follows:
Section 4.1. Due Organization, Good Standing and Corporate Power. Such
Seller is a corporation duly incorporated (or, if not a corporation, duly
organized), validly existing and in good standing (or the equivalent thereof)
under the laws of the jurisdiction in which it is incorporated (or, if not a
corporation, organized).
Section 4.2. Authorization; Noncontravention. Such Seller has the
requisite power and authority to execute and deliver this Agreement and each
other Transaction Document to be executed and delivered by such Seller, to
perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance of this Agreement, and of each other Transaction Document to be
executed and delivered by such Seller, and the consummation by such Seller of
the transactions contemplated hereby and thereby, have been duly authorized and
approved by all necessary action (corporate or otherwise) on the part of such
Seller, and no other action (corporate or otherwise) on the part of such Seller
is necessary to authorize the execution, delivery and performance of this
Agreement and such other Transaction Documents by such Seller and the
consummation of the transactions contemplated hereby and thereby. This Agreement
has been, and each other Transaction Document to be executed and delivered by
such Seller, when delivered in accordance with the terms hereof, will be, duly
executed and delivered by such Seller and, assuming that this Agreement and each
such other Transaction Document constitutes a valid and binding obligation of
each other party thereto, constitutes a valid and binding obligation of such
Seller, enforceable against such Seller in accordance with its terms, except to
the extent that its enforceability may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles.
The execution and delivery and performance of this Agreement by such Seller do
not, and the execution and delivery and performance by such Seller of each other
Transaction Document to be executed and delivered by such Seller will not, (a)
conflict with any of the provisions of the certificate of incorporation or
by-laws or other equivalent charter documents, as applicable, of such Seller, as
amended to the date of this Agreement, (b) conflict with or result in a breach
of, or default under, any material Contract to which such Seller is a party or
by which such Seller or any of its assets are bound or subject or (c) subject to
the consents, approvals, authorizations, declarations, filings and notices
referred to in Section 4.3, contravene any domestic or foreign Law or any Order
currently in effect, which, in the case of clauses (b) and (c) above, would
have, individually or in the aggregate, a Material Adverse Effect on such
Seller.
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Section 4.3. Consents and Approvals. No consent, approval or
authorization of, or declaration or filing with, or notice to, any Governmental
Entity or any other Third Party, is required with respect to such Seller in
connection with the execution and delivery by such Seller of this Agreement and
each other Transaction Document to be executed and delivered by such Seller or
the consummation by such Seller of the transactions contemplated hereby or
thereby, except for (a) compliance with any applicable requirements of the
Securities Act and the Exchange Act, (b) compliance with any applicable
requirements of any applicable state securities, blue sky or takeover laws and
(c) any other consents, filings, authorizations or approvals which, if not made
or obtained, would not have, individually or in the aggregate, a Material
Adverse Effect on such Seller.
Section 4.4. Ownership and Title. As of the date hereof, such Seller
is the record and beneficial owner of the number of shares of Class A Common
Stock and Class B Common Stock set forth opposite the name of such Seller in the
second column of Schedule I hereto, and has good title to such shares, free and
clear of any Liens.
Section 4.5. Litigation. As of the date of this Agreement, there is no
action, suit, proceeding at law or in equity, or any arbitration or any
administrative or other proceeding by or before any Governmental Entity,
pending, or, to the knowledge of such Seller, threatened, against or affecting
such Seller or any of its properties or rights which would have, individually or
in the aggregate, a Material Adverse Effect on such Seller.
Section 4.6. Broker's or Finder's Fee. No agent, broker, Person or
firm acting on behalf of such Seller is, or shall be, entitled to any broker's
fees, finder's fees or commissions for which the Company or Purchaser may be
liable in connection with this Agreement or any of the transactions contemplated
hereby.
Section 4.7. Exclusivity of Representations. THE REPRESENTATIONS AND
WARRANTIES MADE BY EACH SELLER IN THIS ARTICLE IV ARE THE EXCLUSIVE
REPRESENTATIONS AND WARRANTIES MADE BY SUCH SELLER. EACH SELLER HEREBY DISCLAIMS
ANY OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO
ITSELF, THE COMPANY OR ANY OF THE COMPANY'S SUBSIDIARIES.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Section 5. Each Purchaser hereby severally (and not jointly)
represents and warrants to each Seller and the Company as follows:
Section 5.1. Due Organization, Good Standing and Corporate Power. Each
Purchaser is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction in which it is incorporated and has
the requisite corporate power and authority to carry on its business as now
being conducted. Each Purchaser is duly qualified or licensed to do business and
is in good standing in each jurisdiction in which the nature of its
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business or the ownership or leasing of its properties makes such qualification
or licensing necessary, other than in such jurisdictions where the failure to be
so qualified or licensed and in good standing does not have, individually or in
the aggregate, a Material Adverse Effect on Purchaser.
Section 5.2. Authorization; Noncontravention. Each Purchaser has the
requisite corporate power and authority to execute and deliver this Agreement
and each other Transaction Document to be executed and delivered by such
Purchaser, to perform its obligations hereunder and thereunder and to consummate
the transactions contemplated hereby and thereby. The execution, delivery and
performance of this Agreement, and of each other Transaction Document to be
executed and delivered by each Purchaser, and the consummation by each Purchaser
of the transactions contemplated hereby and thereby, have been duly authorized
and approved by all necessary action (corporate or otherwise) on the part of
Purchaser, and no other action (corporate or otherwise) on the part of such
Purchaser is necessary to authorize the execution, delivery and performance of
this Agreement and such other Transaction Documents by such Purchaser and the
consummation of the transactions contemplated hereby and thereby. This Agreement
has been, and each other Transaction Document to be executed and delivered by
such Purchaser, when delivered in accordance with the terms hereof, will be,
duly executed and delivered by Purchaser and, assuming that this Agreement and
each such other Transaction Document constitutes a valid and binding obligation
of each other party thereto, constitutes a valid and binding obligation of such
Purchaser, enforceable against such Purchaser in accordance with its terms,
except to the extent that its enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles. The execution and delivery and performance of this
Agreement by such Purchaser do not, and the execution and delivery and
performance by such Purchaser of each other Transaction Document to be executed
and delivered by such Purchaser will not, (a) conflict with any of the
provisions of the certificate of incorporation or by-laws or other equivalent
charter documents, as applicable, of such Purchaser , as amended to the date of
this Agreement, (b) conflict with or result in a breach of, or default under,
any material Contract to which such Purchaser is a party or by which such
Purchaser or any of its assets are bound or subject or (c) subject to the
consents, approvals, authorizations, declarations, filings and notices referred
to in Section 5.3, contravene any domestic or foreign Law or any Order currently
in effect, which, in the case of clauses (b) and (c) above, would have,
individually or in the aggregate, a Material Adverse Effect on Purchaser.
Section 5.3. Consents and Approvals. No Consent or Filing of or with
any Governmental Entity or any other Third Party is required by or with respect
to Purchaser in connection with the execution and delivery by Purchaser of this
Agreement and each other Transaction Document to be executed and delivered by
Purchaser or the consummation by Purchaser of any of the transactions
contemplated hereby or thereby, except for (a) compliance with any applicable
requirements of any applicable state securities, blue sky or takeover laws and
(b) any other consents, filings, approvals, authorizations or notices which, if
not made or obtained, would not have, individually or in the aggregate, a
Material Adverse Effect on Purchaser.
Section 5.4. Broker's or Finder's Fee. No agent, broker, Person or
firm acting on behalf of the Purchasers is or shall be entitled to any fee,
commission or broker's or finder's fees
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in connection with this Agreement or any of the transactions contemplated hereby
from any of the other parties hereto or from any Affiliate of the other parties
hereto, other than the fees payable by AMI to an Affiliate of the Purchasers
pursuant to Section 6.11(b).
Section 5.5. Funds. At the Closing, the Purchasers will have cash on
hand in an aggregate amount sufficient to enable the Purchasers to timely
perform their obligations hereunder, including to pay the Purchase Price at the
Closing pursuant to Section 2.3.
Section 5.6. Litigation. There is no action, suit, proceeding at law
or in equity, or any arbitration or any administrative or other proceeding by or
before any Governmental Entity pending or, to the knowledge of each Purchaser,
threatened, against or affecting such Purchaser or any of its properties or
rights which would have, individually or in the aggregate, a Material Adverse
Effect on such Purchaser.
Section 5.7. Investment Intent. (a) Each Purchaser is acquiring the
shares of Preferred Stock hereunder for its own account, for investment purposes
only and not with a view toward, or for sale in connection with, any
distribution thereof, nor with any present intention of distributing or selling
any shares of Preferred Stock (or any shares of Common Stock into which such
Preferred Stock may be convertible) in violation of the federal securities Laws
or any applicable foreign or state securities Law.
(b) Each Purchaser qualifies as an "accredited investor," as such term
is defined in Rule 501(a) promulgated pursuant to the Securities Act.
(c) Each Purchaser understands that the shares of Preferred Stock to
be acquired by it pursuant to the terms of this Agreement (and any shares of
Common Stock into which such Preferred Stock may be convertible) involve
substantial risk. Each Purchaser is a highly sophisticated investor, and it and
its officers have substantial and sufficient experience in financial, tax and
business matters and in making investments of the type contemplated by this
Agreement (including investments in securities and equity interests of companies
such as the Company and its Subsidiaries) that such Purchaser is capable of
evaluating the merits and risks of acquiring the shares of Preferred Stock to be
acquired by such Purchaser hereunder (and any shares of Common Stock into which
such Preferred Stock may be convertible). Each Purchaser can afford to bear the
economic risk of its investment in such shares of Preferred Stock (and any
shares of Common Stock into which such Preferred Stock may be convertible),
including a complete loss of the value of such investment, and acknowledges that
it may be required to bear such risk for an indefinite period of time.
(d) Each Purchaser acknowledges and understands that the shares of
Preferred Stock to be acquired by it pursuant to this Agreement (and any shares
of Common Stock into which such Preferred Stock may be convertible) (i) have not
been registered under the Securities Act and (ii) may not be transferred, sold,
offered for sale, pledged, hypothecated or otherwise disposed of without
registration under the Securities Act and any other provision of applicable
state securities Laws or pursuant to an applicable exemption therefrom.
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(e) Each Purchaser acknowledges that the offer and sale of the shares
of Preferred Stock to be acquired by it in the transactions contemplated hereby
have not been accomplished by the publication of any advertisement.
Section 5.8. No Outside Reliance. Each Purchaser acknowledges and
agrees that it has not relied and is not relying upon any statement or
representation (including, without limitation, any statement or representation
regarding internal projections that may have been made to the Purchasers or
their Affiliates) not made in this Agreement or any Schedule hereto or any
certificate or document required to be provided by the Company or any of the
Sellers pursuant to this Agreement in entering into this Agreement. Each
Purchaser acknowledges and agrees, to the fullest extent permitted by Law, that
none of the Company, Sellers' Representative, any Seller, any of their
respective Subsidiaries, or any of their respective directors, officers,
employees, stockholders, partners, Affiliates, controlling Persons, agents,
advisors or representatives shall have any liability or responsibility
whatsoever to Purchasers or their respective directors, officers, employees,
partners, Affiliates, controlling Persons, agents or representatives on any
basis or theory of liability (including in contract or tort, under federal or
state securities laws or otherwise) (other than for fraud) based upon any
information provided or made available, or statements made (including set forth
in management summaries relating to the Company provided to Purchasers, in
materials furnished in the Company's data room, in presentations by the
Company's management or otherwise), to Purchasers or their respective directors,
officers, employees, Affiliates, controlling Persons, advisors, agents or
representatives (or any omissions therefrom), except that the foregoing
limitations shall not apply to the Company insofar as the Company makes the
specific representations and warranties set forth in Article III of this
Agreement.
Section 5.9. Purchaser Status. Each of the Purchasers has a different
ultimate parent entity, as such term is defined by 16 C.F.R. ss. 801.1(3).
Section 5.10. Exclusivity of Representations. THE REPRESENTATIONS AND
WARRANTIES MADE BY PURCHASERS IN THIS ARTICLE V ARE THE EXCLUSIVE
REPRESENTATIONS AND WARRANTIES MADE BY EACH PURCHASER. EACH PURCHASER HEREBY
DISCLAIMS ANY OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH
RESPECT TO ITSELF.
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.1. Access to Information Concerning Properties and Records.
(a) During the period commencing on the date hereof and ending on the earlier of
(i) the Closing Date and (ii) the date on which this Agreement is terminated
pursuant to Section 8.1, the Company shall, and shall cause each of its
Significant Subsidiaries to, upon reasonable notice, afford the Purchasers and
their employees, counsel, accountants, consultants and other authorized
representatives, reasonable access during normal business hours to the officers,
directors, employees, accountants, properties, books and records of the Company
and its Significant Subsidiaries and, during such period, the Company shall
furnish promptly to the
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Purchasers all information concerning its or its Significant Subsidiaries'
business, properties and personnel as the Purchasers may reasonably request;
provided, that the Company may restrict the foregoing access to the extent that
in the reasonable judgment of the Company, any Law applicable to the Company
requires it or its Significant Subsidiaries to restrict access to any of its
business, properties, information or personnel; provided, further, that such
access shall not unreasonably disrupt the operations of the Company or any of
its Subsidiaries. Notwithstanding anything to the contrary contained in this
Agreement, the Company shall not be required to provide any information or
access that it reasonably believes could violate applicable Law, including
Antitrust Laws, rules or regulations or the terms of any confidentiality
agreement or cause forfeiture of attorney/client privilege.
(b) Each Purchaser hereby agrees that it is not authorized to and
shall not (and shall not permit any of its employees, counsel, accountants,
consultants, financing sources and other authorized representatives to) contact
any franchisee, supplier, distributor, or customer of the Company or any of its
Subsidiaries prior to the Closing without the prior consent of the Company,
which consent shall not be unreasonably withheld.
Section 6.2. Confidentiality. Information obtained by the Purchasers
and their respective employees, counsel, accountants, consultants, financing
sources and other authorized representatives pursuant to Section 6.1 shall be
subject to the provisions of the Confidentiality Agreement by and between
Citigroup, as agent for the Company, and Purchaser, dated October 4, 2004 (the
"Confidentiality Agreement"). The terms of the Confidentiality Agreement shall
survive the termination of this Agreement and continue in full force and effect
thereafter and the Confidentiality Agreement shall not be modified, waived or
amended without the written consent of the Company.
Section 6.3. Conduct of the Business of the Company Pending the
Closing Date. The Company agrees that, except as expressly permitted or required
by this Agreement, during the period commencing on the date hereof and ending at
the earlier of (x) the Closing Date and (y) termination of this Agreement
pursuant to Section 8.1:
(a) the Company and each of its Significant Subsidiaries shall conduct
their respective operations in all material respects only in the ordinary course
of business consistent with past practice and, to the extent consistent
therewith, use their commercially reasonable efforts to preserve intact their
respective business organization, keep available the services of their current
senior management as a group and maintain satisfactory relationships with any
Person having significant business relationships with the Company or any of such
Significant Subsidiaries; and
(b) neither the Company nor any of its Significant Subsidiaries shall
effect any of the following without the prior written consent of the Purchasers
(such consent not to be unreasonably withheld, conditioned or delayed):
(i) make any change in or amendment to its certificate of
incorporation or its by-laws (or comparable governing documents), except
for any amendment (including, without limitation, the Charter Amendment)
required in
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connection with the performance by Company or a Significant Subsidiary of
its obligations under this Agreement;
(ii) issue or sell, or authorize to issue or sell, any shares of its
capital stock or any other ownership interests, or issue or sell, or
authorize to issue or sell, any securities convertible into or exchangeable
for, or options, warrants or rights to purchase or subscribe for, or enter
into any arrangement or Contract with respect to the issuance or sale of,
any shares of its capital stock or any other ownership interests except for
the issuance by the Company of Option Exercise Shares pursuant to the terms
of any Exercise Options;
(iii) split, combine, redeem or reclassify, or purchase or otherwise
acquire, any shares of its capital stock or its other securities except for
the acquisition of Options from holders of Options in full or partial
payment of the exercise price payable by such holder upon exercise of
Options and other than in accordance with the terms of this Agreement
(including, without limitation, the Reclassification);
(iv) except as contemplated by Section 6.13, acquire, make any
dividend or distribution to, make any investment in, or make any capital
contributions to, any Person, other than investments or capital
contributions by the Company to any wholly-owned subsidiary of the Company
or by any wholly-owned subsidiary of the Company to another wholly-owned
subsidiary of the Company;
(v) transfer, sell, lease, pledge or otherwise dispose of any of its
properties or assets that are material to its business;
(vi) amend in any material respect or terminate any Material Contract
or enter into a Contract which, had it been entered into prior to the date
hereof, would have been a Material Contract;
(vii) (x) incur any indebtedness, other than short-term indebtedness
or letters of credit incurred in the ordinary course of business or
borrowings under existing credit facilities described in the Commission
Filings or set forth in Section 3.14 of the Company Disclosure Letter or
(y) make any loans or advances to any other Person, other than routine
advances to employees consistent with past practice;
(viii) grant or agree to grant to any officer, employee, director or
consultant of the Company or any of its Significant Subsidiaries any
increase in wages or bonus, severance, profit sharing, retirement, deferred
compensation, insurance or other compensation or benefits, or establish any
new compensation or benefit plans or arrangements, or amend or agree to
amend any existing Employee Benefit Plans, except (w) as may be required
under applicable Law, (x) pursuant to the Employee Benefit Plans or
collective bargaining agreements of the Company or any of its Subsidiaries
in effect on the date hereof, (y) in the ordinary
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course of business and consistent with past practice or (z) pursuant to
employment, retention, change-of-control or similar type agreements
existing as of the date hereof that are disclosed in the Company Disclosure
Letter;
(ix) make any material Tax election not required by law or settle or
compromise any material Tax liability other than in the ordinary course of
business;
(x) other than in the ordinary course of business, (A) waive any
rights of substantial value or (B) cancel or forgive any material
indebtedness for borrowed money owed to the Company or any of its
Significant Subsidiaries, other than indebtedness for borrowed money of the
Company to a wholly-owned Subsidiary of the Company or indebtedness for
borrowed money of a wholly-owned Subsidiary of the Company to the Company
to another wholly-owned Subsidiary of the Company;
(xi) except as may be required by the Commission or any Governmental
Entity or under GAAP, make any material change in its methods, principles
and practices of accounting, including tax accounting policies and
procedures;
(xii) enter into any contract or commitment with respect to capital
expenditures with a value in excess of, or requiring expenditures by
Company and its Significant Subsidiaries in excess of, $250,000,
individually, or enter into contracts or commitments with respect to
capital expenditures with a value in excess of, or requiring expenditures
by Company and its Significant Subsidiaries in excess of, $1,000,000, in
the aggregate, other than in accordance with the capital expenditure
budgets of the Company provided in writing to the Purchasers prior to the
date of this Agreement;
(xiii) sell, pledge or dispose of any stock or other equity interest
owned by it to any other person; or
(xiv) authorize any of, or commit or agree to take any of, the
foregoing actions in respect of which it is restricted by the provisions of
this Section 6.3.
Section 6.4. Commercially Reasonable Efforts. Except as otherwise set
forth in Section 6.6, Section 6.7 and Section 8.1(b)(i), subject to the terms
and conditions set forth herein, and to applicable requirements of Law, each
Party shall cooperate and use their respective commercially reasonable efforts
to take, or cause to be taken, all appropriate action, and do, or cause to be
done, and assist and cooperate with the other Parties in doing, all things
necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated hereby, including
the satisfaction of the respective conditions set forth in Article VII.
Section 6.5. Exclusive Dealing. (a) During the period from the date of
this Agreement until the earlier of (i) the date this Agreement is terminated in
accordance with its terms and (ii) the Closing Date, the Company shall not, and
shall cause its Affiliates and its and
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their respective officers, directors, employees, agents, representatives,
consultants, financial advisors, attorneys, accountants and other agents to
refrain from taking any action to, directly or indirectly, encourage, initiate,
solicit or engage in discussions or negotiations with, or provide any
information to, any Person, other than the Purchasers (and their Affiliates and
representatives), concerning any purchase of any capital stock or any material
asset of the Company or any of its Subsidiaries (other than in connection with
the exercise of any Options outstanding on the date hereof) or any merger,
recapitalization or similar transaction involving the Company or any of its
Subsidiaries.
(b) Immediately following the execution of this Agreement, the Company
shall, and shall cause each of its Subsidiaries, and each of their respective
officers, directors, employees, agents, representatives, consultants, financial
advisors, attorneys, accountants and other agents to cease any existing
discussions or negotiations with any Persons, other than Purchaser (and its
Affiliates and representatives), concerning any purchase of any capital stock or
any material asset of the Company or any of its Subsidiaries (other than in
connection with the exercise of any Options outstanding on the date hereof) or
any merger, recapitalization or similar transaction involving the Company or any
of its Subsidiaries.
Section 6.6. Antitrust Laws. (a) Each Party shall (i) take promptly
all actions necessary to make any filings required of it or any of its
Affiliates under any applicable Antitrust Laws in connection with this Agreement
and the transactions contemplated hereby, (ii) comply at the earliest
practicable date with any formal or informal request for information or
documentary material received by it or any of its Affiliates from any Antitrust
Authority and (iii) cooperate with one another in connection with any filing
under applicable Antitrust Laws and in connection with resolving any
investigation or other inquiry concerning the transactions contemplated by this
Agreement initiated by any Antitrust Authority.
(b) Each party hereto shall use its commercially reasonable efforts to
resolve such objections, if any, as may be asserted with respect to the
transactions contemplated by this Agreement under any Antitrust Law. Without
limiting the generality of the foregoing, in the context of this Section 6.6,
"commercially reasonable efforts" shall include:
(i) in the case of any Party, if such Party receives a formal request
for additional information or documentary material from an Antitrust
Authority, substantially complying with such formal request within sixty
(60) days following the date of its receipt thereof; and
(ii) in the case of the Company only, subject to Purchaser's
compliance with clause (i) above, not frustrating or impeding Purchaser's
strategy or negotiating positions with any Antitrust Authority.
(c) Each Party shall promptly inform the other Parties of any material
communication made to, or received by such party from, any Antitrust Authority
or any other Governmental Entity regarding any of the transactions contemplated
hereby.
Section 6.7. Other Consents. Subject to the terms and conditions
contained herein and except as otherwise set forth in Section 6.6, each of
Sellers (severally and not jointly)
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and the Company shall, and shall cause their respective Subsidiaries to,
cooperate and use their respective commercially reasonable efforts to (a) make,
or cause to be made, all filings or notifications necessary, proper or advisable
under applicable Law (each, a "Filing" and, collectively, the "Filings") and (b)
obtain, prior to the Closing Date, all consents, waivers, approvals,
authorizations, declarations, Orders or registrations (any of the foregoing, a
"Consent") of any Governmental Entity or any other Third Party that are
necessary for the consummation of the transactions contemplated by this
Agreement (and which such Filings and Consents are set forth in Section 6.7 of
the Company Disclosure Letter).
Section 6.8. Public Announcements. The initial press release
announcing the terms of this Agreement shall be a joint press release of the
Purchasers and Sellers' Representative. Thereafter, the Parties each agree to
(i) consult with each other before issuing any press release or otherwise making
any public statement with respect to the transactions contemplated by this
Agreement, (ii) provide to each other Party for review a copy of any such press
release or public statement and (iii) not issue any such press release or make
any such public statement prior to such consultation and review and the receipt
of the prior written consent of the other Parties to this Agreement, which shall
not be unreasonably withheld, unless required by applicable Law.
Section 6.9. Notification of Certain Matters. Purchasers, on the one
hand, and Sellers' Representative, on the other hand, shall use their respective
commercially reasonable efforts to promptly notify each other of (i) any
material actions, suits, claims or proceedings in connection with the
transactions contemplated by this Agreement commenced or, to the knowledge of
Purchasers or the Knowledge of the Company, threatened against the Company or
any of its Significant Subsidiaries or against the Purchasers or the Sellers, as
the case may be, or (ii) the occurrence or non-occurrence of any fact or event
which would be reasonably likely to cause any condition set forth in Article VII
not to be satisfied; provided, that no such notification, nor the obligation to
make such notification, shall affect the representations, warranties or
covenants of any Party or the conditions to the obligations of any Party under
this Agreement.
Section 6.10. Certain Transactions. Without limiting the generality of
Section 6.4, the Purchasers shall not, and shall cause their Affiliates not to,
acquire or agree to acquire by merging or consolidating with, or by purchasing a
substantial portion of the assets of or equity in, or by any other manner, any
business or any corporation, partnership, association or other business
organization or division thereof, or otherwise acquire or agree to acquire any
assets, if the entering into of a definitive agreement relating to, or the
consummation of such acquisition, merger or consolidation would reasonably be
expected to (a) impose any material delay in the obtaining of, or significantly
increase the risk of not obtaining, any Consents of any Governmental Entity
necessary to consummate the transactions contemplated hereby or the expiration
or termination of any applicable waiting period, (b) significantly increase the
risk of any Governmental Entity entering an Order prohibiting the consummation
of the transactions contemplated hereby, (c) significantly increase the risk of
not being able to remove any such Order on appeal or otherwise or (d) materially
delay or prevent the consummation of the transactions contemplated hereby.
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Section 6.11. Fees. Immediately prior to, but subject to the
satisfaction or waiver of each of the conditions to, the Closing, the Company
shall cause AMI to pay:
(a) to Harvest or its designee a fee of $4,875,000 (the "Harvest
Fee"), of which (i) $3,984,150 shall be paid in cash on the Closing Date in
immediately available funds by wire transfer to an account designated in writing
to the Company by Harvest not later than two (2) Business Days prior to the
Closing Date and (ii) $890,850 shall be paid by the issuance of a non-interest
bearing promissory note of AMI for such aggregate principal amount in
substantially the form attached hereto as Exhibit C (the "Harvest Promissory
Note"); and
(b) to a designee (or designees) of the Purchasers pursuant to the
Investcorp Advisory Agreements, aggregate fees totaling $15,000,000.00 (the
"Purchasers Fee"), of which (i) $12,258,923 shall be paid in cash on the Closing
Date in immediately available funds by wire transfer to an account or accounts
designated in writing to the Company by any Purchaser not later than two (2)
Business Days prior to the Closing Date and (ii) $2,741,077 shall be paid by the
issuance of a non-interest bearing promissory notes of AMI totaling $2,741,077
in aggregate principal amount, substantially in the form attached hereto as
Exhibit D (the "Investcorp Promissory Note").
Section 6.12. Charter Amendment. (a) The undersigned Sellers,
constituting the holders of all of the outstanding shares of capital stock of
the Company, acting by written consent in lieu of a meeting of such stockholders
pursuant to Section 228 of the DGCL, hereby adopt and approve the Charter
Amendment subject to (but automatically upon) the satisfaction or waiver of all
of the conditions to the Closing hereunder, and hereby consent to the filing of
the Charter Amendment with the Secretary of State of the State of Delaware
immediately prior to the Closing. Immediately prior to the Closing, the Company
shall cause a certificate pursuant to Section 242(b)(1) of the DGCL to be duly
executed, acknowledged and filed with the Secretary State of the State of
Delaware and, upon the effectiveness of the Charter Amendment, the Company shall
take such other corporate actions as shall be necessary in order to reflect the
record and beneficial ownership by each Seller of the number of shares of
Preferred Stock, Class B Voting Common Stock and Class B Non-Voting Common
Stock, in each case as set forth opposite the name of such Seller on Schedule I
hereto.
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(b) Each Seller hereby acknowledges and agrees that the number of
shares of Voting Preferred Stock, Non-Voting Preferred Stock, Class B Voting
Common Stock and Class B Non-Voting Common Stock to be owned by each Seller upon
the effectiveness of the Charter Amendment shall be as set forth on Schedule I
hereto, and each Seller hereby consents to such allocation of the shares of
Voting Preferred Stock, Non-Voting Preferred Stock, Class B Voting Common Stock
and Class B Non-Voting Common Stock, notwithstanding that such Seller may be
allocated a lesser proportion of Voting Preferred Stock and Voting Class B
Common Stock (or, as applicable, no Voting Preferred Stock or Voting Class B
Common Stock), than is allocated to any other Seller. To the fullest extent
permitted by Law, each Seller hereby waives any and all dissenters or appraisal
rights in connection with the transactions contemplated by this Agreement,
including any of the transactions described in Section 6.13 hereof.
Section 6.13. Ancillary Documents and Transactions. (a) Prior to the
Closing Date, the Sellers shall:
(i) cause AMH Holdings II, Inc. ("Holdings") to file with the
Secretary of State of the State of Delaware an amended and restated
certificate of incorporation of Holdings substantially in the form attached
hereto as Exhibit E (the "Holdings Charter");
(ii) cause to be filed with the Secretary of State of the State of
Delaware a certificate of designations pursuant to Section 151(g) of the
DGCL substantially in the form attached hereto as Exhibit F (the "Holdings
Certificate of Designations");
(iii) cause Holdings to declare, subject to the occurrence of the
Closing hereunder and the consummation of the transactions contemplated by
each Securities Purchase Agreement, a dividend in the aggregate amount of
$96,406,123 (the "Transaction Dividend") on shares of the Class B Common
Stock of Holdings (such shares to be issued, pursuant to the Restructuring
Agreement, on a one-for-one basis in exchange for shares of Class B Common
Stock);
(iv) approve the vesting of the Exercise Options, provided, however
that the vesting of the Exercise Options shall be subject to shareholder
approval meeting the requirements of Section 280G(b)(5) of the Code; and
(v) cause Holdings to pay bonuses to certain senior management
employees of the Company in an aggregate amount equal to $22,000,000 (the
"Management Bonuses"), provided, however, that payment of the Management
Bonuses shall be subject to shareholder approval meeting the requirements
of Section 280G(b)(5) of the Code and to the satisfaction or waiver of each
of the conditions to the Closing, and shall be payable as provided in
Section 6.13(b).
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The Transaction Dividend shall be payable to holders of shares of Class B Common
Stock of Holdings at the Closing as follows: (x) an aggregate amount of
$62,693,623 (the "Transaction Dividend Cash Amount") shall be payable to each
Seller in an amount of cash equal to the Transaction Dividend Cash Amount
multiplied by such Seller's Applicable Seller Percentage and (y) an aggregate
amount of $33,712,500 (the "Transaction Dividend Note Amount") shall be payable
in the form of one or more non-interest bearing promissory notes of Holdings,
each substantially in the form attached hereto as Exhibit G (each a "Dividend
Promissory Note") issued to each Seller in a principal amount equal to the
Transaction Dividend Note Amount multiplied by such Seller's Applicable Seller
Percentage.
(b) Subject to Section 6.13(c) and to the satisfaction or waiver of
each of the conditions to the Closing, (i) a portion of the Management Bonuses
in an aggregate amount equal to $14,025,000 (the "Management Bonus Cash Amount")
shall be paid by Holdings in cash immediately prior to the exercise by each
Option Exercise Seller of all of his or her Exercise Options, (ii) a portion of
the Management Bonuses in an aggregate principal amount equal to $3,954,753
shall be paid by the issuance of one or more non-interest bearing promissory
notes of Holdings, each substantially in the form attached hereto as Exhibit H
(each a "Management Bonus Promissory Note") and (iii) a portion of the
Management Bonuses in an aggregate principal amount equal to $4,020,247 shall be
paid by the issuance of one or more interest bearing promissory notes of
Holdings, each substantially in the form attached hereto as Exhibit I (each a
"Management Bonus Holdback Promissory Note").
(c) Each Option Exercise Seller hereby directs Holdings to pay to the
Company, upon the exercise of his or her Exercise Options, a portion of the
Management Bonus payable to such Option Exercise Seller equal to the aggregate
exercise price payable by such Option Exercise Seller to the Company upon the
exercise of his or her Exercise Options. Each Option Exercise Seller further
acknowledges and agrees that (i) any amount payable by Holdings or AMI in
connection with the transactions contemplated by this Agreement to such Option
Exercise Seller
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will be reduced by the amount of any Taxes required to be withheld by Holdings
or AMI in connection with the transaction contemplated by this Agreement (the
"Withholding Amount") and (ii) to the extent that as of the Closing Date the
Withholding Amount is insufficient to pay such Taxes, the Seller's
Representative shall on the Closing Date deposit with Holdings or AMI, as the
case may be, on behalf of such Option Exercise Seller, a portion of the Purchase
Price payable to such Option Exercise Sellers in an aggregate amount equal to
any remaining amount required to make such Tax payment. All amounts withheld
pursuant to the preceding sentence shall be treated for all other purposes of
this Agreement as if such amounts had been paid to, and received by, each Option
Exercise Seller in accordance with the terms hereof, except that this sentence
shall not apply to calculations of the available Restricted Payments Basket
Amount.
(d) At the Closing, the Parties shall:
(i) cause Holdings to (w) enter into one or more Securities Purchase
Agreements with the Note Purchasers, (x) duly adopt the AMH Holdings II, Inc.
2004 Stock Option Plan substantially in the form attached hereto as Exhibit J
(the "Holdings Option Plan") (y) enter into an Option Award Agreement
substantially in the form attached hereto as Exhibit K (each a "Closing Date
Option Award Agreement") with each of the individuals identified on Schedule III
hereto granting to each such individual, subject to the terms of each applicable
Closing Date Option Award Agreement and of the Holdings Option Plan, options to
purchase Class B Non-Voting Common Stock of Holdings in an aggregate amount for
all such individuals equal to 10% of the outstanding shares of Class B
Non-Voting Common Stock of Holdings and (z) pay the Transaction Dividend;
(ii) cause AMI to enter into (w) the Amended and Restated Management
Agreement between AMI and Harvest, substantially in the form attached hereto as
Exhibit L (the "Harvest Management Agreement"), (x) the Agreement for Management
Advisory, Strategic Planning and Consulting Services between AMI and Investcorp
International Inc. ("III"), substantially in the form attached hereto as Exhibit
M (the "Investcorp Management Advisory Agreement"), (y) the Financing Advisory
Services between AMI and III, substantially in the form attached hereto as
Exhibit N (the "Investcorp Financing Advisory Agreement") and (z) the M&A
Advisory Services Agreement between AMI and III, substantially in the form
attached hereto as Exhibit O (the "Investcorp M&A Advisory Agreement" and,
collectively with the Investcorp Management Advisory Agreement and the
Investcorp Financing Advisory Agreement, the "Investcorp Advisory Agreements");
and
(iii) enter into (x) a Restructuring Agreement substantially in the
form attached hereto as Exhibit P (the "Restructuring Agreement"), pursuant to
which, on the terms and subject to the conditions set forth in the Restructuring
Agreement, each Party shall contribute to Holdings all of the shares of Common
Stock and Preferred Stock owned by such Party in exchange for shares of capital
stock of Holdings established pursuant to the Holdings Charter and the Holdings
Certificate of Designations and (y) a Stockholders Agreement among all
stockholders of Holdings, substantially in the form attached hereto as Exhibit Q
(the "Holdings Stockholders Agreement").
(e) Without limiting the generality of the foregoing and of Sections
6.4 and 6.14, (i) each Party agrees to cause any of such Party's nominees to the
Board of Directors of the
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Company, Holdings or any other Person, as applicable, to vote at any meeting of
such Board of Directors in favor of any of the actions to be taken by any such
Person in furtherance of any of the transactions contemplated by Section 6.12(a)
or this Section 6.13, (ii) following the Closing each Party shall cooperate and
use its commercially reasonable efforts to take or cause to be taken all
appropriate actions necessary or desirable to consummate and make effective each
of the transactions contemplated by this Section 6.13 and (iii) each Seller
hereby grants to Sellers' Representative an irrevocable proxy (which proxy is
coupled with an interest) to vote at any annual or special meeting of
stockholders, or to take any action by written consent in lieu of such meeting,
with respect to all shares of capital stock of the Company owned by such Seller,
as determined by Sellers' Representative, in connection with any and all actions
expressly permitted or required to be taken by the Company or its shareholders
pursuant to this Agreement and subject to the terms and conditions set forth
herein. Notwithstanding the foregoing, the Parties hereby acknowledge that (i)
the representatives of the Purchasers who shall be appointed to the Board of
Directors of Holdings at or shortly after the Closing shall not become members
of the Board of Directors until after the Transaction Dividend has been declared
and paid and (ii) the representatives of the Purchasers who shall be appointed
to the Board of Directors of the Company, Associated Materials Holdings, Inc.
and AMI at or shortly after the Closing will not take part in the consideration
or approval of the Management Bonus or the payment of dividends that are used to
fund payments under the Dividend Promissory Notes.
(f) The Company shall use its commercially reasonable efforts to cause
each Option Exercise Seller to become a party to this Agreement as a Seller by
entering into a Joinder Agreement as promptly as practicable after the date
hereof. In the event that any Option Exercise Seller shall have failed to enter
into a Joinder Agreement prior to the Closing Date (each such Option Exercise
Seller, a "Non-Joining Option Party"), (i) the Company shall cause the terms of
the Company Option Plan and each applicable option award agreement with respect
to the Exercise Options and any Unexercised Company Options held by each
Non-Joining Option Party to be amended in order to provide that all such options
shall be exercisable for shares of Class B Non-Voting Common Stock of Holdings
and (ii) in lieu of the shares of Preferred Stock to be acquired by all
Non-Joining Option Parties as contemplated by Section 2.1, each Seller
(including each Option Exercise Seller who shall have become a party to this
Agreement by entering into a Joinder Agreement prior to the Closing Date) shall
sell to the Purchasers (and each purchaser hereby agrees to purchase from each
Seller) at the Closing, such number of additional shares of Preferred Stock (on
a pro rata basis as among all Sellers party to this Agreement, as will result in
the Purchasers acquiring (x) an aggregate number of shares Voting Preferred
Stock equal to the number of shares of Class B Voting Common Stock to be held by
the Harvest Related Sellers as of immediately after the Closing and (y) an
aggregate amount of 2,114,019 shares of Preferred Stock. The Parties agree to
take such actions as may be necessary or desirable in order to give effect to
the provisions of this Section 6.13(f), including by consenting to any necessary
changes to the form of the Charter Amendment prior to its filing with the
Secretary of State of the State of Delaware.
(g) Each Option Exercise Seller hereby coveants and agrees to enter
into, at the Closing, an agreement among the Option Exercise Sellers, Holdings
and the Harvest Related Sellers, in form and substance reasonably satisfactory
to the Sellers' Representative and the Purchasers, pursuant to which each Option
Exercise Seller shall agree to (i) an automatic contribution to Holdings,
immediately upon the exercise of any of such Option Exercise Seller's
Unexercised Options, of all of the shares of Voting Common Stock of the Company
issuable to such Option Exercise Seller upon such exercise in exchange for an
equivalent number of shares of Class B Non-Voting Common Stock of Holdings and
(ii) immediately upon such contribution and exchange, deliver a joinder
agreement pursuant to which such Option Exercise Seller's shall become parties
to, and agree to be bound by all of the provisions of, the Holdings Stockholders
Agreement.
Section 6.14. Appointment of Sellers' Representative. (a) Each Seller
hereby irrevocably appoints Sellers' Representative as its true and lawful
attorney-in-fact, to act as its representative under this Agreement and, as
such, to act as such Sellers' agent, to take such action on such Seller's behalf
with respect to all actions expressly permitted or required by be taken by
Sellers pursuant to this Agreement and subject to the terms and conditions set
forth herein. Sellers' Representative hereby accepts its appointment as Sellers'
Representative and the authorization set forth above. Sellers' Representative
shall not have any duties or responsibilities except those expressly set forth
in this Agreement, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or shall
otherwise exist against Sellers' Representative.
(b) Without limiting the generality of Section 6.14(a), each Seller
hereby grants to Sellers' Representative, the right, power and authority to take
all actions on behalf of the Sellers as expressly provided in this Agreement,
including, but not limited to, (i) waiving (or deeming to be satisfied) any of
the conditions contained in Article VII to the obligations of the Sellers under
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this Agreement, (ii) accepting delivery of the Purchase Price at the Closing on
behalf of the Sellers, (iii) acting on behalf of such Seller in connection with
any dispute or proceeding related to this Agreement, and (iv) making all other
decisions and taking all other actions on behalf of the Sellers as provided in
this Agreement, each of which decisions and actions shall be binding upon the
Sellers.
(c) The Sellers' Representative shall be entitled to rely, and shall
be fully protected in relying, upon any statements furnished in writing to it by
any Seller or any Purchaser, and the Sellers' Representative shall be entitled
to act on the advice of counsel selected by it. As against any other Seller,
Sellers' Representative shall be fully justified in failing or refusing to take
any action under this Agreement unless it shall have received such advice or
concurrence of such Sellers as it deems appropriate or it shall have been
expressly indemnified to its satisfaction by the Sellers appointing it,
severally according to their respective Applicable Seller Percentages, against
any and all liability and expense that the Sellers' Representative may incur by
reason of taking or continuing to take any such action.
(d) Sellers' Representative shall be entitled to retain counsel and to
incur such expenses as Sellers' Representative deems to be necessary or
appropriate in connection with its performance of its obligations under this
Agreement, and all such fees and expenses (including reasonable attorneys' fees
and expenses) incurred by the Sellers' Representative shall be borne (severally
and not jointly) by the Sellers pro rata according to their respective
Applicable Seller Percentages; provided, that the aggregate amount of fees and
expenses of the Sellers' Representative, in its capacity as such, for which
Sellers shall be liable for reimbursement shall not exceed $100,000. Sellers'
Representative shall have the right to deduct any reimbursement amounts payable
to Sellers' Representative pursuant to this Section 6.14 from the payment of the
applicable portion of the Purchase Price payable to each Seller pursuant to
Section 2.3(c).
(e) Each Seller hereby agrees, severally and not jointly, to indemnify
Sellers' Representative (in its capacity as such) against, and to hold Sellers'
Representative (in its capacity as such) harmless from, any and all losses or
liabilities of whatever kind which may at any time be imposed upon, incurred by
or asserted against Sellers' Representative in such capacity in any way relating
to or arising out of its action or failures to take action pursuant to this
Agreement, the other Transaction Documents or in connection herewith or
therewith in such capacity; provided, however, that (i) Sellers shall not be
obligated to indemnify Sellers' Representative for any such actions or failures
to act that constitute gross negligence or willful misconduct and (ii) and no
Seller shall be obligated to reimburse Sellers' Representative pursuant to this
Section 6.14 in an aggregate amount exceeding the Purchase Price multiplied by
such Seller's Applicable Seller Percentage.
Section 6.15. Bonus Payments; Acceleration of Options. The Company
agrees that (i) no change will be made to the compensation of any employee of
the Company or any of its Subsidiaries and (ii) the vesting of any Option shall
not be accelerated, in either case, in connection with the transactions
contemplated by this Agreement, unless and until shareholder approval meeting
the requirements of Section 280G(b)(5) of the Code and Treasury Regulation
1.280G-1 with respect to such change or such acceleration of the vesting of
Options, as the case may be, is obtained. Within a reasonable period of time
prior to seeking such shareholder approval, the Company will deliver to the
Purchasers and their counsel for review and comment
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a copy of (i) the consent form on which such approval will be obtained and (ii)
the disclosure statement that will accompany such form.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1. Conditions to the Obligations of Each Party. The
respective obligations of each Party to consummate the transactions contemplated
by Section 2.1 are subject to the satisfaction, at or before the Closing, of
each of the following conditions:
(a) Injunctions; Illegality. The consummation of the transactions
contemplated by this Agreement shall not have been restrained, enjoined or
prohibited by any Order and there shall not have been any Law enacted,
promulgated or deemed applicable to such transactions by any Governmental
Entity that prohibits or materially restrains the consummation of such
transactions.
(b) Antitrust Laws; Similar Laws. Any applicable waiting period (or
any extension thereof), filings or approvals under any applicable Antitrust
Laws required to consummate the transactions contemplated by this Agreement
under applicable Law shall have expired, been terminated, been made or been
obtained.
(c) Certain Financing Transactions. (i) the Senior Credit Agreement
shall have been amended and restated in its entirety (the "Amended and
Restated Senior Credit Agreement") and shall contain terms and conditions
consistent with the terms and conditions set forth in the commitment letter
attached hereto as Exhibit R, and the Administrative Agent under the
Amended and Restated Senior Credit Agreement shall have notified AMI that
each of the conditions to the occurrence of the closing under the Amended
and Restated Senior Credit Agreement shall have been satisfied or waived,
(ii) each Note Purchaser shall have entered into a securities purchase
agreement containing terms and conditions consistent with the terms and
conditions set forth in the commitment letter attached hereto as Exhibit S
(each a "Securities Purchase Agreement"), and each Note Purchaser shall
have notified Holdings that each of the conditions of such Note Purchaser
contained in the applicable Securities Purchase Agreement between the
Company and such Note Purchaser shall have been satisfied or waived, and
the Note Purchasers shall be prepared, in the aggregate, to fund the
purchases of the Mezzanine Notes to be issued pursuant to each Securities
Purchase Agreement (the "Mezzanine Notes").
(d) Opinions. The Company shall have received one or more written
opinions of Houlihan Lokey Howard & Zukin Financial Advisors, Inc.
rendering (i) the opinions set forth on Exhibit T hereto (the "Transaction
Fees Opinion") and (ii) the opinions set forth on Exhibit U hereto (the
"Solvency Opinion").
(e) Transaction Fees; Transaction Dividend. The Boards of Directors of
the Company and AMI shall have duly approved the payment of the Harvest Fee
and the
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Purchasers Fee, in each case in accordance with the applicable provisions
of the Company Indenture and the AMI Indenture, and duly declared the
Transaction Dividend.
Section 7.2. Conditions to the Obligations of the Purchasers. The
obligations of the Purchasers to consummate the transactions contemplated by
Section 2.1 are subject to the satisfaction or waiver by the Purchasers on or
prior to the Closing of the following further conditions:
(a) Performance. (i) The Company shall have performed in all material
respects its covenants and obligations under this Agreement required to be
performed by it at or prior to the Closing and (ii) each Seller shall have
performed in all material respects its covenants and obligations under this
Agreement required to be performed by it at or prior to the Closing.
(b) Representations and Warranties. (i) The representations and
warranties of the Company contained in Article III, to the extent qualified
by "material," "Material Adverse Effect" or similar materiality type
qualifications, shall be true and correct in all respects at and as of the
Closing as if made at and as of such time (except that the accuracy of
representations and warranties that by their terms speak as of the date of
this Agreement or some other date will be determined as of such date). The
representations and warranties of the Company contained in Article III that
are not so qualified by "material," "Material Adverse Effect" or similar
materiality type qualifications shall be true and correct at and as of the
Closing as if made at and as of such time (except that the accuracy of
representations and warranties that by their terms speak as of the date of
this Agreement or some other date will be determined as of such date),
except for such failures to be true and correct that do not have,
individually or in the aggregate, a Material Adverse Effect on the Company.
Purchaser shall have received a certificate of the Company, executed by the
Chief Executive Officer and Chief Financial Officer of the Company, as to
the satisfaction of the conditions set forth in Section 7.2(a)(i) and this
Section 7.2(b)(i); and
(ii) The representations and warranties of each Seller contained in
Article IV, to the extent qualified by "material," "Material Adverse
Effect" or similar materiality type qualifications, shall be true and
correct in all respects at and as of the Closing as if made at and as of
such time. The representations and warranties of each Seller contained in
Article IV that are not so qualified by "material," "Material Adverse
Effect" or similar materiality type qualifications shall be true and
correct at and as of the Closing Date as if made at and as of such time,
except for such failures to be true and correct that do not have,
individually or in the aggregate, a Material Adverse Effect on such Seller.
Purchaser shall have received a certificate of each Seller as to the
satisfaction of the conditions set forth in Section 7.2(a)(ii) and this
Section 7.2(b)(ii).
(c) FIRPTA Certificate. Prior to the Closing, the Company shall
deliver to the Purchaser's a statement from the Company meeting the
requirements of Treasury Regulation 1.1445-2(c)(3) that the Company is not
a United States real property interest.
(d) Purchasers Fee. The Purchasers Fee shall have been paid in full.
Stock Purchase Agreement
-40-
Section 7.3. Conditions to the Obligations of Sellers. The obligations
of each Seller to consummate the transactions contemplated by Section 2.1 are
subject to the satisfaction or waiver by Sellers' Representative on or prior to
the Closing of the following further conditions:
(a) Performance. Each Party other than the Sellers shall have
performed in all material respects its covenants and obligations under this
Agreement required to be performed by it at or prior to the Closing;
(b) Representations and Warranties. (i) The representations and
warranties of each Purchaser contained in Article V, to the extent
qualified by "material," "Material Adverse Effect" or similar materiality
type qualifications, shall be true and correct in all respects at and as of
the Closing as if made at and as of such time. The representations and
warranties of each Purchaser contained in Article V that are not so
qualified by "material," "Material Adverse Effect" or similar materiality
type qualifications shall be true and correct at and as of the Closing as
if made at and as of such time, except for such failures to be true and
correct that do not have, individually or in the aggregate, a Material
Adverse Effect on Purchaser. Sellers' Representative shall have received a
certificate of each Purchaser as to the satisfaction of the conditions set
forth in Section 7.3(a) and this Section 7.3(b); and
(ii) The representations and warranties of the Company made to the
Sellers in Section 3.1, 3.2 and 3.4, to the extent qualified by "material,"
"Material Adverse Effect" or similar materiality type qualifications, shall
be true and correct in all respects at and as of the Closing as if made at
and as of such time (except that the accuracy of representations and
warranties that by their terms speak as of the date of this Agreement or
some other date will be determined as of such date). The representations
and warranties of the Company made to the Sellers in Section 3.1, 3.2 and
3.4 that are not so qualified by "material," "Material Adverse Effect" or
similar materiality type qualifications shall be true and correct at and as
of the Closing as if made at and as of such time (except that the accuracy
of representations and warranties that by their terms speak as of the date
of this Agreement or some other date will be determined as of such date),
except for such failures to be true and correct that do not have,
individually or in the aggregate, a Material Adverse Effect on the Company.
Section 7.4. Frustration of Closing Conditions. No Party may rely on
the failure of any condition set forth in this Article VII to be satisfied if
such failure was caused by such Party's failure to act in good faith or such
Party's failure to use its commercially reasonable efforts to cause the Closing
to occur, as required by Section 6.4.
Stock Purchase Agreement
-41-
ARTICLE VIII
TERMINATION AND ABANDONMENT
Section 8.1. Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned, at any time prior to the
Closing:
(a) by mutual consent of Sellers' Representative and the Purchasers;
(b) by either Sellers' Representative, on the one hand, or the
Purchasers, on the other hand:
(i) if any court or other Governmental Entity shall have issued,
enacted, entered, promulgated or enforced any Law or Order (that has
not been vacated, withdrawn or overturned) restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement
and such Law or Order shall have become final and nonappealable; or
(ii) after January 31, 2005 (the "End Date"), if the Closing
shall not have occurred on or prior to the End Date; provided,
however, that no Party may terminate this Agreement pursuant to this
clause (ii) if the failure of any condition in Article VII to be
satisfied or the failure of the Closing to occur on or before the End
Date results from the breach by such Party of this Agreement;
(c) by Sellers' Representative, if: (i) there shall be a breach by the
Purchasers of any representation, warranty, covenant or agreement of the
Purchasers in this Agreement that (x) would result in the failure of a
condition set forth in Section 7.3(a) or 7.3(b) and (y) which is not
curable or, if curable, is not cured upon the occurrence of the earlier of
(A) the thirtieth (30th) day after written notice thereof is given by
Sellers' Representative to the Purchasers and (B) the day that is five (5)
Business Days prior to the End Date; provided, that Sellers' Representative
may not terminate this Agreement pursuant to this Section 8.1(c) if the
Company or any Seller is then in material breach of this Agreement; or
(d) by the Purchasers, if: (i) there shall be a breach by the Company
or any Seller of any representation, warranty, covenant or agreement of the
Company or such Seller, as applicable, in this Agreement that (x) would
result in the failure of a condition set forth in Section 7.2(a) or 7.2(b)
and (y) which is not curable or, if curable, is not cured upon the
occurrence of the earlier of (A) the thirtieth (30th) day after written
notice thereof is given by a Purchaser to Sellers' Representative and (B)
the day that is five (5) Business Days prior to the End Date; provided,
that the Purchasers may not terminate this Agreement pursuant to this
Section 8.1(d) if any Purchaser is then in material breach of this
Agreement.
Section 8.2. Effect of Termination. In the event of the termination of
this Agreement pursuant to any provision of Section 8.1, the terminating Party
shall forthwith give written notice thereof to the other Party (except in the
case of a termination pursuant to Section 8.1(a), in which case no such notice
shall be required) specifying the provision hereof pursuant
Stock Purchase Agreement
-42-
to which such termination is made. Upon termination of this Agreement, all
obligations of the parties under this Agreement (other than under Section 6.2,
Article IX and this Section 8.2) shall be terminated without liability or
penalty on the party of any party or its officers, directors or shareholders to
any other party; provided, however, that no such termination shall relieve any
party from liability for damages resulting from any breach by such party of this
Agreement or otherwise limit any remedy available to a party or parties on
account of any such breach.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Fees and Expenses. All costs and expenses incurred in
connection with this Agreement and the consummation of the transactions
contemplated hereby shall be paid by the Party incurring such costs and
expenses.
Section 9.2. Survival of Representations, Warranties and Covenants.
Neither the representations and warranties of any Party set forth in this
Agreement or in any certificate or other document or instrument delivered prior
to or at the Closing, nor the covenants of any Party set forth in this Agreement
(other than (i) the covenants contained in Sections 6.12(a) and 6.15, which
shall survive until the date that is three months after the Closing Date (ii)
the provisions of Section 6.12(b), 6.13 and 6.14, which shall survive forever,
and (iii) covenants that by their terms contemplate performance after the
Closing) shall survive the occurrence of the Closing, and all of such
representations, warranties and covenants shall expire with, and be terminated
and extinguished by, the Closing. From and after the Closing, no Party shall
have (i) any liability whatsoever with respect to any representation, warranty
or covenant (other than any covenant contained in Sections 6.12, 6.13, 6.14 and
6.15 and any other covenant that by its terms contemplates performance after the
Closing) made by such Party hereunder or (ii) any rights or remedies in respect
of any breach of any representation or warranty or any such covenant made by any
other Party hereunder. This Section 9.2 shall have no effect upon any other
obligation of the Parties, whether to be performed before or after the Closing.
Section 9.3. Notices. All notices, consents, requests, demands,
waivers and other communications required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered in person or mailed, certified or registered mail with postage
prepaid, sent by prepaid overnight courier or sent by facsimile (upon
confirmation of receipt), as follows:
Stock Purchase Agreement
-43-
(a) if to the Company, Sellers' Representative or any Seller, to it
at:
c/o Harvest Partners, Inc.
280 Park Avenue, 33rd Floor
New York, New York 10017
Attention: Ira D. Kleinman
Christopher D. Whalen
Fax: (212) 812-0100
with a copy (which shall not constitute notice) to:
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attention: John M. Reiss, Esq.
Oliver C. Brahmst, Esq.
Fax: 212-354-8113; or
(b) if to Purchasers, to them at:
AM Holding Limited
West Wind Building, Harbour Drive
P.O. Box 1111
George Town, Grand Cayman
Cayman Islands B.W.I.
AM Equity Limited
West Wind Building, Harbour Drive
P.O. Box 2197
George Town, Grand Cayman
Cayman Islands B.W.I.
AM Investments Limited
West Wind Building, Harbour Drive
P.O. Box 2197
George Town, Grand Cayman
Cayman Islands B.W.I.
Associated Equity Limited
West Wind Building, Harbour Drive
P.O. Box 2197
George Town, Grand Cayman
Cayman Islands B.W.I.
Stock Purchase Agreement
-44-
Associated Investments Limited
West Wind Building, Harbour Drive
P.O. Box 2197
George Town, Grand Cayman
Cayman Islands B.W.I.
with a copy (which shall not constitute notice) to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
47th Floor
New York, New York 10166-0193
Attention: E. Michael Greaney
Telephone: (212) 351-4000
Facsimile: (212) 351-4035
or to such other Person or address as any Party shall specify by notice in
writing in accordance with this Section 9.3 to each of the other Parties. All
such notices, requests, demands, waivers and communications shall be deemed to
have been received on the date of delivery unless (i) if mailed, in which case
on the third Business Day after the mailing thereof, except for a notice of a
change of address, which shall be effective only upon receipt thereof or (ii) if
sent by prepaid overnight courier, which shall be deemed to have been received
on the next Business Day.
Section 9.4. Entire Agreement. This Agreement contains the entire
understanding of the Parties with respect to the subject matter contained herein
and supersedes all prior agreements and understandings, oral and written, with
respect thereto, other than the Confidentiality Agreement.
Section 9.5. Disclosure. Any matter set forth in any section of the
Company Disclosure Letter shall be deemed to be set forth in all other sections
of the Company Disclosure Letter to the extent the applicability of such
disclosure to the corresponding representation and warranty in this Agreement is
reasonably apparent on its face. The inclusion of any information (including
dollar amounts) in any section of the Company Disclosure Letter shall not be
deemed to be an admission or acknowledgment that such information is required to
be listed in such section or is material to or outside the ordinary course of
the business of the Company, nor shall such information be deemed to establish a
standard of materiality (the actual standard of materiality may be higher or
lower than the matters disclosed by such information). In addition, matters
reflected in the Company Disclosure Letter are not necessarily limited to
matters that are required by this Agreement to be reflected in the Company
Disclosure Letter. Such additional matters are set forth for informational
purposes only and do not necessarily include other matters of a similar nature.
The information contained in this Agreement, the Company Disclosure Letter and
Exhibits is disclosed solely for purposes of this Agreement, and no information
contained herein or therein shall be deemed to be an admission by any Party to
any Third Party of any matter whatsoever (including any violation of applicable
Law or breach of contract).
Section 9.6. Binding Effect; Benefit; Assignment. This Agreement shall
inure to the benefit of and be binding upon the Parties and their respective
successors and permitted
Stock Purchase Agreement
-45-
assigns. Except as otherwise set forth in Section 9.14, neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
any of the Parties without the prior written consent of each of the other
Parties.
Section 9.7. Amendment; Waiver. No provision of this Agreement may be
amended or waived unless such amendment or waiver is made in writing and signed,
in the case of an amendment, by Sellers' Representative and the Purchasers or,
in the case of a waiver, (i) by the Purchasers if such waiver is to be effective
against the Purchasers and (ii) by Sellers' Representative if such waiver is to
be effective against any Seller; provided, however, that any amendment,
modification or waiver of any provision of this Agreement that adversely and
disproportionately affects the rights of any Seller hereunder shall require the
written consent of such affected Seller; and provided, further, that any
amendment, modification or waiver of Section 6.14 shall require the consent of
Sellers holding a majority of the outstanding shares of capital stock of the
Company held by Sellers other than the Harvest Related Sellers. No failure or
delay by any Party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
Section 9.8. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
Section 9.9. Applicable Law. THIS AGREEMENT AND THE LEGAL RELATIONS
BETWEEN THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS RULES
THEREOF. THE STATE OR FEDERAL COURTS LOCATED WITHIN THE STATE OF NEW YORK SHALL
HAVE JURISDICTION OVER ANY AND ALL DISPUTES BETWEEN THE PARTIES, WHETHER IN LAW
OR EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE AGREEMENTS,
INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY AND THE PARTIES CONSENT TO AND
AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS. EACH OF THE PARTIES HEREBY
WAIVES AND AGREES NOT TO ASSERT IN ANY SUCH DISPUTE, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT (I) SUCH PARTY IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF SUCH COURTS, (II) SUCH PARTY AND SUCH PARTY'S
PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS ISSUED BY SUCH COURTS OR (III) ANY
LITIGATION OR OTHER PROCEEDING COMMENCED IN SUCH COURTS IS BROUGHT IN AN
INCONVENIENT FORUM. THE PARTIES HEREBY AGREE THAT MAILING OF PROCESS OR OTHER
PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED
IN SECTION 9.3, OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE
VALID AND SUFFICIENT SERVICE THEREOF AND HEREBY WAIVE ANY OBJECTIONS TO SERVICE
ACCOMPLISHED IN THE MANNER HEREIN PROVIDED.
Section 9.10. Severability. If any term, provision, covenant or
restriction contained in this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void, unenforceable or against
its regulatory policy, the remainder of the terms,
Stock Purchase Agreement
-46-
provisions, covenants and restrictions contained in this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated, and this Agreement shall be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable term, provision,
covenant or restriction or any portion thereof had never been contained herein.
Section 9.11. Specific Enforcement. The Parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. Accordingly, the Parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, in addition to any other remedy to
which they are entitled at law or in equity.
Section 9.12. Waiver of Jury Trial. Each of the Parties hereby
irrevocably waives, and agrees to cause its Subsidiaries to waive, all right to
a trial by jury in any action, proceeding or counterclaim arising out of or
relating to this Agreement or the transactions contemplated hereby.
Section 9.13. Rules of Construction. The Parties agree that they have
been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any Law, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
Section 9.14. Additional Purchasers. One or more of the Purchasers
shall have the right, by written notice to the Company and the Sellers'
Representative not less than three (3) Business Days prior to the Closing, to
assign their rights and delegate their obligations hereunder to Investcorp
Coinvestment Partners I, L.P. and/or Northwestern Mutual Life Insurance Company
and its Affiliates (the "Additional Purchasers") with respect to up to
$10,000,000 of the shares of Preferred Stock to be purchased and sold at the
Closing. If the right set forth in this Section 9.14 is exercised, (a) the
assigning Purchasers shall specify in the notice of such exercise the number and
type of shares of Preferred Stock to be purchased by the Additional Purchasers,
(b) such notice shall be accompanied by a Joinder Agreement in the form of
Exhibit V hereto (a Joinder Agreement) executed by each of the Additional
Purchasers and (c) the Additional Purchasers shall be added to Schedule II and
shall be deemed Purchasers for all purposes of this Agreement.
* * * * *
Stock Purchase Agreement
IN WITNESS WHEREOF, each Party has caused this Agreement to be
executed by its respective officers thereunto duly authorized, all as of the
date first above written.
AMH HOLDINGS, INC.
By:_____________________________________
Name:
Title:
HARVEST PARTNERS, INC., as Sellers'
Representative
By:_____________________________________
Name:
Title:
Stock Purchase Agreement
SELLERS:
HARVEST PARTNERS III, L.P.
By: Harvest Associates III, LLC, its general
partner
By: __________________________________
Name:
Title:
HARVEST PARTNERS III
BETEILINGUNGSGESELLSCH AFT
HAFTUNGSBESCHRANKUNG)
By: Harvest Associates III, LLC, its general
partner
By: __________________________________
Name:
Title:
HARVEST PARTNERS IV, L.P.
By: Harvest Associates IV, LLC, its general
partner
By: __________________________________
Name:
Title:
HARVEST PARTNERS IV GmbH & Co. KG
By: Harvest Associates IV, LLC, its general
partner
By: __________________________________
Name:
Title:
Stock Purchase Agreement
BANCBOSTON CAPITAL, INC.
By: _________________________________
Name:
Title:
PRIVATE EQUITY PORTFOLIO FUND II, LLC
By: _________________________________
Name:
Title:
GE CAPITAL EQUITY CAPITAL GROUP, INC.
By: ________________________________
Name:
Title:
NATIONAL CITY EQUITY PARTNERS, INC.
By: ________________________________
Name
Title:
GREAT LAKES CAPITAL INVESTMENTS IV, LLC
By: _________________________________
Name:
Title:
LIBERTY MUTUAL INSURANCE COMPANY
By: __________________________________
Name:
Title:
Stock Purchase Agreement
PPM AMERICA PRIVATE EQUITY FUND L.P.
By: PPM America Capital Partners, LLC, its
general partner
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
OLD HICKORY FUND I, LLC
By: PPM America, Inc., its manager
By: __________________________________
Name:
Title:
NEW YORK LIFE CAPITAL PARTNERS II L.P.
By: NYLCAP Manager LLC, its Investment
Manager
By: _________________________________
Name:
Title:
ABBOTT CAPITAL PRIVATE EQUITY FUND III, L.P.
By: Abbott Capital Private Equity Partners
III, L.P., its general partner
By: Abbott Capital Management, L.L.C.
its general partner
By: _________________________________
Name:
Title:
Stock Purchase Agreement
BNY PARTNERS FUND L.L.C.
By: BNY Private Investment Management, Inc.,
Member Manager
By: __________________________________
Name:
Title:
THE BOARD OF TRUSTEES OF THE TEXAS GROWTH FUND
II, AS TRUSTEE FOR THE TEXAS GROWTH FUND II --
1998 TRUST
By: TGF II Management, L.P., as Executive
Director
By: TGF Management Corp., as General Partner
By: _________________________________
Name:
Title:
3755428 CANADA INC.
By: _________________________________
Name:
Title:
Stock Purchase Agreement
WESTON PRESIDIO CAPITAL III, L.P.
By: ________________________________
Name:
Title:
WESTON PRESIDIO CAPITAL IV, L.P.
By: ________________________________
Name:
Title:
WPC ENTREPRENEUR FUND, L.P.
By: ________________________________
Name:
Title:
WPC ENTREPRENEUR FUND II, L.P.
By: ________________________________
Name:
Title:
Stock Purchase Agreement
-----------------------------------
MICHAEL CAPORALE, JR.
-----------------------------------
KENNETH L. BLOOM
-----------------------------------
D. KEITH LAVANWAY
-----------------------------------
DENNIS W. VOLLMERSHAUSEN
Stock Purchase Agreement
PURCHASERS:
AM HOLDING LIMITED
By:___________________________
Name:
Title:
AM EQUITY LIMITED
By:____________________________
Name:
Title:
AM INVESTMENTS LIMITED
By:____________________________
Name:
Title:
ASSOCIATED EQUITY LIMITED
By:____________________________
Name:
Title:
ASSOCIATED INVESTMENTS LIMITED
By:____________________________
Name:
Title:
Stock Purchase Agreement
SCHEDULE I
- --------------------------------------------------------------------------------------------------------------------------
Column I Column II Column III Column IV Column V Column VI Column VII Column VIII
- --------------------------------------------------------------------------------------------------------------------------
Seller Shares of Shares of Shares of Shares of Shares of Shares of Applicable
Existing Existing Voting Non-Voting Class B Class B Seller
Class A Class B Preferred Preferred Voting Non-Voting Percentage(1)
Common Stock Common Stock Stock at Stock at Common Common
Closing Closing Stock at Stock at
Closing Closing
- --------------------------------------------------------------------------------------------------------------------------
Harvest Partners III, L.P. 131,978 None 131,978 None 131,978 None 6.24%
- --------------------------------------------------------------------------------------------------------------------------
Harvest Partners III 18,022 None 18,022 None 18,022 None 0.85%
Beteilingungsgesellschaft
Burgerlichen Rechts (mit
Haftungsbeschrankung)
- --------------------------------------------------------------------------------------------------------------------------
Harvest Partners IV, L.P. 273,000 None 273,000 None 273,000 None 12.91%
- --------------------------------------------------------------------------------------------------------------------------
Harvest Partners IV GmbH & 77,000 none 77,000 None 77,000 None 3.64%
Co. KG
- --------------------------------------------------------------------------------------------------------------------------
BancBoston Capital Inc. 72,370 19,118 None 91,488 None 91,488 4.33%
- --------------------------------------------------------------------------------------------------------------------------
Private Equity Portfolio 18,298 None None 18,298 None 18,298 0.87%
- --------------------------------------------------------------------------------------------------------------------------
GE Capital Equity Capital 73,190 None None 73,190 None 73,190 3.46%
Group, Inc.
- --------------------------------------------------------------------------------------------------------------------------
National City Equity 62,212 None None 62,212 None 62,212 2.94%
Partners, Inc.
- --------------------------------------------------------------------------------------------------------------------------
Great Lakes Capital 10,979 None None 10,979 None 10,979 0.52%
Investments IV
- --------------------------------------------------------------------------------------------------------------------------
Liberty Mutual Insurance 137,232 None None 137,232 None 137,232 6.49%
Company
- --------------------------------------------------------------------------------------------------------------------------
(1) To be recalculated to show percentages to six decimal places.
Stock Purchase Agreement
- --------------------------------------------------------------------------------------------------------------------------
Column I Column II Column III Column IV Column V Column VI Column VII Column VIII
- --------------------------------------------------------------------------------------------------------------------------
Seller Shares of Shares of Shares of Shares of Shares of Shares of Applicable
Existing Existing Voting Non-Voting Class B Class B Seller
Class A Class B Preferred Preferred Voting Non-Voting Percentage(1)
Common Stock Common Stock Stock at Stock at Common Common
Closing Closing Stock at Stock at
Closing Closing
- --------------------------------------------------------------------------------------------------------------------------
PPM America Private Equity 181,603 None None 181,603 None 181,603 8.59%
Fund LP
- --------------------------------------------------------------------------------------------------------------------------
Old Hickory Fund I, LLC 1,372 None None 1,372 None 1,372 0.06%
- --------------------------------------------------------------------------------------------------------------------------
New York Life Capital 100,000 None None 100,000 None 100,000 4.73%
Partners
- --------------------------------------------------------------------------------------------------------------------------
Abbot Capital Private 56,000 None None 56,000 None 56,000 2.65%
Equity Fund I
- --------------------------------------------------------------------------------------------------------------------------
BNY Partners I, L.L.C. 4,000 None None 4,000 None 4,000 0.19%
- --------------------------------------------------------------------------------------------------------------------------
The Texas Growth Fund II -- 182,976 None None 182,976 None 182,976 8.66%
1998 Trust
- --------------------------------------------------------------------------------------------------------------------------
Weston Presidio Capital 65,992 None None 65,992 None 65,992 3.12%
III, L.P.
- --------------------------------------------------------------------------------------------------------------------------
Weston Presidio Capital IV, 156,986 None None 156,986 None 156,986 7.43%
L.P.
- --------------------------------------------------------------------------------------------------------------------------
WPC Entrepreneur Fund, L.P. 3,256 None None 3,256 None 3,256 0.15%
- --------------------------------------------------------------------------------------------------------------------------
WPC Entrepreneur Fund II, 2,485 None None 2,485 None 2,485 0.12%
L.P.
- --------------------------------------------------------------------------------------------------------------------------
Stock Purchase Agreement
- --------------------------------------------------------------------------------------------------------------------------
Column I Column II Column III Column IV Column V Column VI Column VII Column VIII
- --------------------------------------------------------------------------------------------------------------------------
Seller Shares of Shares of Shares of Shares of Shares of Shares of Applicable
Existing Existing Voting Non-Voting Class B Class B Seller
Class A Class B Preferred Preferred Voting Non-Voting Percentage(1)
Common Stock Common Stock Stock at Stock at Common Common
Closing Closing Stock at Stock at
Closing Closing
- --------------------------------------------------------------------------------------------------------------------------
Michael Caporale 35,844 None None 205,892 None 71,688 9.74%
- --------------------------------------------------------------------------------------------------------------------------
Keith LaVanway 3,213 None None 66,981 None 6,426 3.17%
- --------------------------------------------------------------------------------------------------------------------------
Kenneth Bloom 3,344 None None 56,483 None 6,688 2.67%
- --------------------------------------------------------------------------------------------------------------------------
Dennis Vollmershausen 1,000 None None 4,189 None 2,000 0.20%
- --------------------------------------------------------------------------------------------------------------------------
Robert Franco None None None 21,256 None None 1.01%
- --------------------------------------------------------------------------------------------------------------------------
Wayne Fredrick None None None 10,627 None None 0.50%
- --------------------------------------------------------------------------------------------------------------------------
Scott Harcek None None None 5,314 None None 0.25%
- --------------------------------------------------------------------------------------------------------------------------
John Haumesser 1 None None None 10,627 None None 0.50%
- --------------------------------------------------------------------------------------------------------------------------
John Haumesser 2 None None None 10,627 None None 0.50%
- --------------------------------------------------------------------------------------------------------------------------
Kevin Kaestner None None None 10,627 None None 0.50%
- --------------------------------------------------------------------------------------------------------------------------
Rende None None None 0 None None 0.00%
- --------------------------------------------------------------------------------------------------------------------------
Michelle Russell None None None 10,627 None None 0.50%
- --------------------------------------------------------------------------------------------------------------------------
David King None None None 5,314 None None 0.25%
- --------------------------------------------------------------------------------------------------------------------------
Stock Purchase Agreement
- --------------------------------------------------------------------------------------------------------------------------
Column I Column II Column III Column IV Column V Column VI Column VII Column VIII
- --------------------------------------------------------------------------------------------------------------------------
Seller Shares of Shares of Shares of Shares of Shares of Shares of Applicable
Existing Existing Voting Non-Voting Class B Class B Seller
Class A Class B Preferred Preferred Voting Non-Voting Percentage(1)
Common Stock Common Stock Stock at Stock at Common Common
Closing Closing Stock at Stock at
Closing Closing
- --------------------------------------------------------------------------------------------------------------------------
Monica Pritchard None None None 5,314 None None 0.25%
- --------------------------------------------------------------------------------------------------------------------------
Robert Schindler None None None 5,314 None None 0.25%
- --------------------------------------------------------------------------------------------------------------------------
Cynthia Sobe None None None 5,314 None None 0.25%
- --------------------------------------------------------------------------------------------------------------------------
James Zechinati None None None 5,314 None None 0.25%
- --------------------------------------------------------------------------------------------------------------------------
David Campbell None None None 1,200 None None 0.06%
- --------------------------------------------------------------------------------------------------------------------------
Paul Ordakowski None None None 2,000 None None 0.09%
- --------------------------------------------------------------------------------------------------------------------------
Dennis Thompson None None None 3,000 None None 0.14%
- --------------------------------------------------------------------------------------------------------------------------
Gordon Morgan None None None 1,000 None None 0.05%
- --------------------------------------------------------------------------------------------------------------------------
Mark Marcheggiani None None None 1,000 None None 0.05%
- --------------------------------------------------------------------------------------------------------------------------
Scott Thomson None None None 1,000 None None 0.05%
- --------------------------------------------------------------------------------------------------------------------------
Robb Struckel None None None 1,000 None None 0.05%
- --------------------------------------------------------------------------------------------------------------------------
Steve Terry None None None 1,000 None None 0.05%
- --------------------------------------------------------------------------------------------------------------------------
Paul Pratt None None None 1,000 None None 0.05%
- --------------------------------------------------------------------------------------------------------------------------
Stock Purchase Agreement
- --------------------------------------------------------------------------------------------------------------------------
Column I Column II Column III Column IV Column V Column VI Column VII Column VIII
- --------------------------------------------------------------------------------------------------------------------------
Seller Shares of Shares of Shares of Shares of Shares of Shares of Applicable
Existing Existing Voting Non-Voting Class B Class B Seller
Class A Class B Preferred Preferred Voting Non-Voting Percentage(1)
Common Stock Common Stock Stock at Stock at Common Common
Closing Closing Stock at Stock at
Closing Closing
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Kong Chen None None None 8,290 None None 0.39%
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Michael D'Jock None None None 5,640 None None 0.27%
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TOTAL OUTSTANDING: 1,672,352 19,118 500,000 1,614,019 500,000 1,234,871 100%
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TOTAL AUTHORIZED: 2,500,000 2,500,000 500,000 1,614,019 2,536,823 2,036,823
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Stock Purchase Agreement
SCHEDULE II
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Shares of Shares of Non-Voting Preferred
Purchaser Voting Preferred Stock Stock
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AM Holding Limited 46,664 150,635
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AM Equity Limited 113,334 365,846
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AM Investments Limited 113,334 365,846
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Associated Equity Limited 113,334 365,846
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Associated Investments Limited 113,334 365,846
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