EXHIBIT 10.1
RESTRUCTURING AGREEMENT
-----------------------
This RESTRUCTURING AGREEMENT (this "Agreement") is entered into as of
December 22, 2004, by and among amH HOLDINGS, Inc., a Delaware corporation (the
"Company"), AMH HOLDINGS II, Inc., a Delaware corporation ("Holdings"), HARVEST
PARTNERS III, L.P., ("HPIII LP"), HARVEST PARTNERS III, GbR, ("HPIII GBR"),
HARVEST PARTNERS IV GmbH & CO. KG, ("HPIV GMBH"), HARVEST PARTNERS IV, L.P.,
("HPIV LP" and collectively with HPIII LP, HPIII GBR and HPIV GMBH the "Harvest
Funds" and individually each a "Harvest Fund"), BANCBOSTON CAPITAL INC.
("BancBoston"), PRIVATE EQUITY PORTFOLIO FUND II, LLC ("PEPF"), GE CAPITAL
EQUITY CAPITAL GROUP, INC. ("GE"), NATIONAL CITY EQUITY PARTNERS, INC.
("National"), GREAT LAKES CAPITAL INVESTMENTS IV, LLC ("Great Lakes"), LIBERTY
MUTUAL INSURANCE COMPANY ("Liberty"), OLD HICKORY FUND I, LLC ("Old Hickory"),
PPM AMERICA PRIVATE EQUITY FUND L.P. ("PPM"), ABBOTT CAPITAL PRIVATE EQUITY FUND
III, L.P. ("Abbott"), THE TEXAS GROWTH FUND II - 1998 TRUST ("Texas"), WESTON
PRESIDIO CAPITAL III, L.P. ("Weston III"),WESTON PRESIDIO CAPITAL IV, L.P.
("Weston IV"), WPC ENTREPRENEUR FUND, L.P. ("Entrepreneur I"),WPC ENTREPRENEUR
FUND II, L.P. ("Entrepreneur II" and collectively with Weston III, Weston IV and
Entrepreneur I the "Weston Investors" and individually each a "Weston
Investor"), BNY PARTNERS FUND L.L.C. ("BNY"), NEW YORK LIFE CAPITAL PARTNERS II
L.P. ("New York Life"), 3755428 Canada Inc. ("Canada"), AM HOLDING LIMITED, a
Cayman Islands corporation, ("Investcorp I"), AM EQUITY LIMITED, a Cayman
Islands corporation ("Investcorp II"), AM INVESTMENTS LIMITED, a Cayman Islands
corporation ("Investcorp III"), ASSOCIATED EQUITY LIMITED, a Cayman Islands
corporation ("Investcorp IV"), ASSOCIATED INVESTMENTS LIMITED, a Cayman Islands
corporation ("Investcorp V" and, collectively with Investcorp I, Investcorp II,
Investcorp III and Investcorp IV, the "Investcorp Entities"), and certain
stockholders of the Company listed on the Executive Signature Page hereto (each,
an "Executive" and collectively the "Executives") (the Harvest Funds,
BancBoston, PEFP, GE, National, Great Lakes, Liberty, Old Hickory, PPM, Abbott,
Texas, the Weston Investors, BNY, New York Life, Canada, the Investcorp Entities
and the Executives are referred to collectively herein as the "Contributors,"
and individually herein as a "Contributor").
WHEREAS, the Contributors own all of the issued and outstanding
capital stock of the Company;
WHEREAS, the Contributors and the Company desire to restructure the
Company by creating Holdings, a holding company which shall own all of the
issued and outstanding capital stock of the Company;
WHEREAS, immediately following the Restructuring, the Contributors
shall own all of the issued and outstanding capital stock of Holdings on the
same terms and in the same proportion as the capital stock of the Company is
held by the Contributors immediately prior to the Restructuring; and
WHEREAS, Holdings was incorporated in the State of Delaware on
December 2, 2004 in contemplation of the Restructuring.
Restructuring Agreement
2
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the parties hereto agree as follows:
Restructuring Agreement
3
1. Defined Terms. Capitalized terms used and not otherwise defined
herein shall have their respective meanings as defined in that certain Stock
Purchase Agreement, dated as of December 5, 2004, by and among the Company,
Harvest Partners, Inc., as the Sellers' Representative, each of the Sellers
named therein, and each Investcorp Entity, as the Purchasers.
2. Contribution to Holdings. (a) On the date of this Agreement, each
Contributor agrees to contribute and, as soon as practicable, deliver to
Holdings certificates representing the number of shares of (i) Class B, Series I
(Voting) Common Stock, par value $0.01 per share, of the Company (the "Company
Class B Voting Common Stock"), (ii) Class B, Series II (Non-Voting) Common
Stock, par value $0.01 per share, of the Company (the "Company Class B
Non-Voting Common Stock" and, collectively with the Company Class B Voting
Common Stock, the "Company Common Stock"), (iii) Class A, Series I (Voting)
Convertible Preferred Stock, par value $0.01 per share, of the Company (the
"Company Voting Preferred Stock") and (iv) Class A, Series II (Non-Voting)
Convertible Preferred Stock, par value $0.01 per share, of the Company (the
"Company Non-Voting Preferred Stock" and, collectively with the Company Voting
Preferred Stock, the "Company Preferred Stock"; the Company Preferred Stock and
the Company Common Stock, collectively, the "Outstanding Company Stock"), as
applicable, as specified for each such Contributor on Schedule 1 attached
hereto, endorsed in blank or accompanied by duly executed assignment documents.
(b) In exchange for the contribution of the shares of Outstanding
Company Stock pursuant to Section 2(a), Holdings agrees to issue and deliver to
each Contributor the number of shares of (i) Class B, Series I (Voting) Common
Stock, par value $0.01 per share, of Holdings (the "Holdings Class B Voting
Common Stock"), (ii) Class B, Series II (Non-Voting) Common Stock, par value
$0.01 per share, of Holdings (the "Holdings Class B Non-Voting Common Stock"
and, collectively with the Holdings Class B Voting Common Stock, the "Holdings
Class B Common Stock"), (iii) Class A, Series I (Voting) Convertible Preferred
Stock, par value $0.01 per share, of Holdings (the "Holdings Voting Preferred
Stock") and (iv) Class A, Series II (Non-Voting) Convertible Participating
Preferred Stock, par value $0.01 per share, of Holdings (the "Holdings
Non-Voting Preferred Stock" and, collectively with the Holdings Voting Preferred
Stock, the "Holdings Preferred Stock"; the Holdings Preferred Stock and the
Holdings Class B Common Stock, collectively, the "Outstanding Holdings Stock"),
as applicable, as specified for each such Contributor on Schedule 1 attached
hereto (in each case, in the form of stock certificates issued by Holdings
representing such shares). The parties hereto intend that the transactions
described in this Section 2 (the "Initial Exchange") be characterized as an
exchange under Section 351(a) of the Internal Revenue Code of 1986, as amended.
3. Representations and Warranties Concerning the Transaction.
(a) Representations and Warranties with respect to the Company. The
Company represents and warrants to each of the Contributors that:
(i) Organization of the Company. The Company is duly organized,
validly existing, and in good standing under the laws of the State of Delaware.
(ii) Authorization of Transaction. The Company has full corporate
power and authority to execute and deliver this Agreement and to perform its
obligations
Restructuring Agreement
4
hereunder. This Agreement constitutes a valid and binding obligation of the
Company, enforceable in accordance with its terms and conditions, except to the
extent that its enforceability may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and to general equitable principles. The Company
need not give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement, except as required
by applicable state, province or "blue sky" securities laws or regulations,
which shall be timely made.
(iii) Noncontravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will (a) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Company or any of its subsidiaries is
subject, (b) violate or conflict with any provision of its charter or bylaws or
(c) result in a breach of or constitute a default under, any material agreement,
contract, lease, license, instrument, or other arrangement to which the Company
or any of its subsidiaries is a party or by which it is bound or to which any of
its assets is subject.
(iv) Capital Stock and Related Matters. The authorized capital
stock of the Company consists of (i) 2,114,019 shares of Company Class A Voting
Common Stock, of which (x) no shares are issued and outstanding immediately
prior to the Restructuring and (y) no shares will be issued and outstanding
immediately after the Restructuring, (ii) 1,614,019 shares of Class A, Series II
(Non-Voting) Common Stock of the Company, par value $0.01 per share (the
"Company Class A Non-Voting Common Stock") of which (x) no shares are issued and
outstanding immediately prior to the Restructuring and (y) no shares will be
issued and outstanding immediately after the Restructuring, (iii) 2,583,801
shares of Company Class B Voting Common Stock, of which (x) 500,000 shares are
issued and outstanding immediately prior to the Restructuring and (y) 500,000
shares will be issued and outstanding and owned by Holdings immediately after
the Restructuring, (iv) 2,083,801 shares of Company Class B Non-Voting Common
Stock, of which (x) 1,614,019 shares are issued and outstanding immediately
prior to the Restructuring and (y) 1,614,019 shares will be issued and
outstanding and owned by Holdings immediately after the Restructuring, (v)
500,000 shares of Company Voting Preferred Stock, of which (x) 500,000 shares
are issued and outstanding immediately prior to the Restructuring and (y)
500,000 shares will be issued and outstanding and owned by Holdings immediately
after the Restructuring and (vi) 1,614,019 shares of Company Non-Voting
Preferred Stock, of which (x) 1,614,019 shares are issued and outstanding
immediately prior to the Restructuring and (y) 1,614,019 shares will be issued
and outstanding and owned by Holdings immediately after the Restructuring.
Immediately prior to the Restructuring, the record ownership of the capital
stock of the Company shall be as set forth on Schedule 1. Immediately after the
Restructuring, except as described above, the Company will not have outstanding
any capital stock or securities convertible or exchangeable for any shares of
its capital stock or containing any profit participation features, nor any
rights or options to subscribe for or to purchase its capital stock or any stock
or securities convertible into or exchangeable for its capital stock or any
stock appreciation rights or phantom stock plans. Immediately after the
Restructuring, the Company shall not be subject to any obligation (contingent or
otherwise) to repurchase or otherwise acquire or retire any shares of its
outstanding capital stock or any warrants, options or other rights to acquire
its capital stock. As of the Restructuring and
Restructuring Agreement
5
immediately thereafter, all of the outstanding shares of the Company's capital
stock shall be validly issued, fully paid and nonassessable.
(b) Representations and Warranties with respect to Holdings. The
Company and Holdings represent and warrant, jointly and severally, that:
(i) Organization of Holdings. Holdings is duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) Authorization of Transaction and Holdings Shares. Holdings
has full corporate power and authority to execute and deliver this Agreement and
to perform its obligations hereunder and under the Holdings Stockholders
Agreement. Holdings has (i) caused the Holdings Charter and the Holdings
Certificate of Designations to be duly adopted and filed with the Secretary of
State of the State of Delaware and (ii) authorized the issuance of the shares of
Outstanding Holdings Stock to the Contributors pursuant to Section 2. Each of
this Agreement and the Holdings Stockholders Agreement constitutes a valid and
binding obligation of Holdings, enforceable against Holdings in accordance with
its terms and conditions, except to the extent that its enforceability may be
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and to
general equitable principles. Holdings need not give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any government
or governmental agency in order to consummate the transactions contemplated by
each of this Agreement and the Holdings Stockholders Agreement, except as
required by applicable state, province or "blue sky" securities laws or
regulations, which shall be timely made.
(iii) Noncontravention. Neither the execution and the delivery of
this Agreement or the Holdings Stockholders Agreement, nor the consummation of
the transactions contemplated hereby or thereby, will (a) violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which Holdings is subject, (b) violate or conflict with any provision
of the Holdings Charter or the bylaws of Holdings or (c) result in a breach of
or constitute a default under, any material agreement, contract, lease, license,
instrument, or other arrangement to which Holdings is a party or by which it is
bound or to which any of its assets is subject.
(iv) Capital Stock and Related Matters
(A) The authorized capital stock of Holdings consists of (i) 2,114,019
shares of Class A, Series I (Voting) Common Stock, par value $0.01 per share, of
Holdings (the "Holdings Class A Voting Common Stock"), of which (x) no shares
are issued and outstanding immediately prior to the Restructuring and (y)
500,000 shares will be reserved for issuance after the Restructuring upon the
conversion of any shares of Holdings Voting Preferred Stock, and (z) 1,614,019
shares will be reserved for issuance after the Restructuring upon the conversion
of any shares of Holdings Class A Non-Voting Common Stock (as defined below),
(ii) 1,614,019 shares of Class A, Series II (Non-Voting) Common Stock, par vale
$0.01 per share, of Holdings (the "Holdings Class A Non-Voting Common Stock"
and, collectively with the Holdings Class A Voting Stock, the "Holdings Class A
Common Stock"; the Holdings Class A Common Stock, collectively with the Holdings
Class B Common Stock, the "Holdings Common Stock"; and the Holdings Common
Stock, collectively with the Holdings Preferred Stock, the
Restructuring Agreement
6
"Holdings Stock"), of which (x) no shares are issued and outstanding immediately
prior to the Restructuring and (y) 1,614,019 shares will be reserved for
issuance after the Restructuring upon the conversion of any shares of Holdings
Non-Voting Preferred Stock, (iii) 2,583,801 shares of Holdings Class B Voting
Common Stock, of which (x) no shares are issued and outstanding immediately
prior to the Restructuring and (y) 500,000 shares will be issued and outstanding
immediately after the Restructuring, (iv) 2,083,801 shares of Holdings Class B
Non-Voting Common Stock, of which (x) no shares are issued and outstanding
immediately prior to the Restructuring, (y) 1,614,019 shares will be issued and
outstanding immediately after the Restructuring and (z) 469,782 shares will be
reserved for issuance upon the exercise of employee stock options ("Holdings
Options") issued pursuant to the AMH Holdings II, Inc. 2004 Stock Option Plan,
which plan has been approved by the board of directors of Holdings, in each
case, immediately after the Restructuring, (v) 500,000 shares of Holdings Voting
Preferred Stock, of which (x) no shares are issued and outstanding immediately
prior to the Restructuring and (y) 500,000 shares will be issued and outstanding
immediately after the Restructuring and (vi) 1,614,019 shares of Holdings
Non-Voting Preferred Stock, of which (x) no shares are issued and outstanding
immediately prior to the Restructuring and (y) 1,614,019 shares will be issued
and outstanding immediately after the Restructuring. Immediately after the
Restructuring, Holdings will not have outstanding any stock or securities
convertible or exchangeable for any shares of its capital stock or containing
any profit participation features, nor any rights or options to subscribe for or
to purchase its capital stock or any stock or securities convertible into or
exchangeable for its capital stock or any stock appreciation rights or phantom
stock plans, except for the Outstanding Holdings Stock and the Holdings Options.
Immediately after the Restructuring, Holdings will not be subject to any
obligation (contingent or otherwise) to repurchase or otherwise acquire or
retire any shares of its outstanding capital stock or any warrants, options or
other rights to acquire its capital stock, except pursuant to the Holdings
Stockholders Agreement, the Holdings Charter and the Holdings Certificate of
Designations. Immediately after the Restructuring, all of the shares of
Outstanding Holdings Stock shall be validly issued, fully paid and
nonassessable.
(B) There are no statutory or contractual preemptive rights or rights
of refusal with respect to the issuance of the shares of Outstanding Holdings
Stock to the Contributors pursuant to Section 2. Holdings has not violated any
applicable federal or state securities laws in connection with the issuance of
any of its capital stock pursuant to Section 2 and, assuming the representations
and warranties of each of the Contributors contained in Section 4(c) are true
and correct, the issuance of the shares of Outstanding Holdings Stock pursuant
to Section 2 does not require registration under the Securities Act, or any
applicable state securities laws. Immediately after the Restructuring, there
will be no agreements between Holdings' stockholders with respect to the voting,
transfer or registration of Holdings' capital stock, except for the Holdings
Stockholders Agreement.
(v) No Liabilities. As of immediately prior to the Restructuring,
Holdings does not have any material liabilities or obligations, whether accrued,
absolute, contingent or otherwise, except for liabilities and obligations (i) to
pay the Transaction Dividend and (ii) pursuant to each Securities Purchase
Agreement and each Dividend Promissory Note.
Restructuring Agreement
7
(vi) No Litigation. There are no actions, suits, proceedings or
investigations pending or, to the Company's and Holdings' knowledge, threatened
against Holdings.
(vii) No Other Business. Holdings is engaged in no business other
than its ownership of the capital stock of the Company.
(viii) Terms. With respect to each Contributor, the Restructuring
shall be on the same terms and conditions as afforded to each other Contributor.
Other than the Harvest Fee and the Purchasers Fee, no Contributor shall receive
any payments or fees in connection with the Restructuring.
(c) Representations and Warranties of each Contributor. Each
Contributor, severally and not jointly, for itself only and not on behalf of any
other Contributor, represents and warrants to the Company and Holdings, as
follows:
(i) Authorization of Transaction. If such Contributor is not an
individual, such Contributor has all necessary power and authority, and if such
Contributor is an individual, such Contributor has full legal capacity, to
execute and deliver this Agreement and the other documents to be executed and
delivered by such Contributor as contemplated hereby, to carry out such
Contributor's obligations hereunder and thereunder, and to consummate the
transactions contemplated hereby and thereby, including the contribution and
delivery of the shares of Outstanding Company Stock held by such Contributor. If
such Contributor is not an individual, the execution and delivery of this
Agreement and the other documents to be executed and delivered by such
Contributor as contemplated hereby have been duly authorized by all requisite
corporate, limited liability or other action, as applicable, and no other
corporate, limited liability or other action, as the case may be, is necessary
to authorize the execution, delivery and performance of this Agreement and such
other documents by such Contributor and the consummation of the transactions
contemplated hereby and thereby. This Agreement constitutes the valid and
legally binding obligation of such Contributor, enforceable in accordance with
its terms and conditions, except to the extent that its enforceability may be
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and to
general equitable principles. Such Contributor, to the best of its knowledge,
need not give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement. Immediately prior to
the Restructuring, such Contributor is the record owner of the capital stock of
the Company set forth next to its name on Schedule 1.
(ii) Noncontravention. To the best of such Contributor's
knowledge, neither the execution and the delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which such Contributor is subject.
Restructuring Agreement
8
(iii) Brokers' Fees. Such Contributor has no liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which the Company
could become liable or obligated.
(iv) Securities Law Compliance. Such Contributor:
(A) is acquiring the shares of Outstanding Holdings Stock for its
own account and not with a view to, or for resale in connection with, any
distribution of such shares in violation of the Securities Act or any securities
laws applicable to such Contributor. Such Contributor understands that the
shares of Holdings Stock acquired by it pursuant to this Agreement have not been
registered under the Securities Act or the securities laws of any state or
province by reason of specific exemptions under the provisions thereof which
depend in part upon the investment intent of such Contributor and upon the other
representations made by such Contributor in this Agreement. Such Contributor
understands that the Company and Holdings are relying upon the representations,
warranties and agreements made by such Contributor in this Agreement.
(B) understands that it may not sell or transfer any shares of
Holdings Stock acquired by it pursuant to this Agreement except in accordance
with the registration requirements of the Securities Act and of any applicable
state or province or "blue sky" securities laws or regulations or an exemption
from such registration requirements or regulations. Such Contributor further
understands that, except as set forth in the Holdings Stockholders Agreement,
Holdings has no obligation or present intention of so registering any shares of
Holdings Stock, and that there is no assurance that any exemption from
registration under the Securities Act and any applicable state or province or
"blue sky" securities laws or regulations will be available, or if available,
that such exemption will allow such Contributor to dispose of or otherwise
transfer any or all of the shares of Holdings Stock in the amounts or at the
times that such Contributor may propose.
(C) understands that any sale or transfer of shares of Holdings
Stock acquired by it pursuant to this Agreement is subject to the restrictions
on such sale or transfer contained in the Holdings Stockholders Agreement and
that the certificates evidencing the shares of Holdings Stock, if any, will bear
the restrictive legends provided for in the Holdings Stockholders Agreement.
(D) (i) has such knowledge, sophistication and experience in
business and financial matters that it is capable of evaluating the merits and
risks of the transactions referred herein, (ii) fully understands the nature,
scope and duration of the limitations applicable to the shares of Holdings Stock
and (iii) is able to bear the economic risk of the investment in the shares of
Holdings Stock.
(E) is (i) an "accredited investor" as that term is defined in
Rule 501 of Regulation D under the Securities Act of 1933, as amended and (ii) a
"qualified purchaser" within the meaning of the Investment Company Act of 1940,
as amended.
(F) has had an opportunity to ask questions and receive answers
concerning the terms and conditions of the offering of the shares of Holdings
Stock and has had
Restructuring Agreement
9
full access to such other information concerning Holdings as such Contributor
has requested. Such Contributor has reviewed, or has had an opportunity to
review, the Holdings Charter, the Holdings Certificate of Designations, the
by-laws of Holdings and the Holdings Stockholders Agreement.
4. Post-Closing Covenants. Holdings, the Company and the
Contributors agree as follows with respect to the period following the
consummation of the transactions described herein.
(a) General. Each party to this Agreement will take such further
action (including the execution and delivery of such further instruments and
documents) as is reasonably necessary to carry out the purpose of this Agreement
as any other party hereto may reasonably request, all at the sole cost and
expense of such requesting party.
(b) Holdings Stock. The certificates representing shares of Holdings
Stock issued under this Agreement will be imprinted with such legends as are
required pursuant to the terms and conditions of the Holdings Stockholders
Agreement.
5. Miscellaneous.
(a) Press Releases and Public Announcements. Except in accordance
with Section 6.8 of the Purchase Agreement, no party hereto shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement without the prior written approval of Holdings and the Company
and any other party named therein; provided, that any party hereto may make any
public disclosure it believes in good faith is required by applicable law (in
which case the disclosing party will use its reasonable best efforts to advise
the other parties hereto prior to making the disclosure).
(b) Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. No party hereto may assign either this
Agreement or any of its rights, interests, or obligations hereunder without the
prior written approval of Holdings and the Company. Notwithstanding anything
herein to the contrary, each of the Contributors may, in the ordinary course of
its business and in accordance with applicable law, at any time assign to a
Permitted Transferee (as such term is defined in the Holdings Stockholders
Agreement) all or part of the obligations under this Agreement.
(c) Counterparts. This Agreement may be executed in one or more
counterparts, by original or facsimile signature, each of which shall be deemed
an original but all of which together will constitute one and the same
instrument.
(d) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(e) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is
Restructuring Agreement
10
sent by registered or certified mail, return receipt requested, postage prepaid,
and addressed to the intended recipient as set forth below:
To any Contributor:
As specified for each such Contributor on the books and records
of the Company.
To Holdings or the Company:
AMH Holdings II, Inc.
3737 State Road
Cuyahoga Falls Road, Ohio 44223
Attention: Chief Financial Officer
Facsimile No:
with copies to (which shall not constitute notice to Holdings or
the Company):
280 Park Avenue, 33rd Floor
New York, NY 10017
Attention: Ira D. Kleinman
Christohper Whalen
Facsimile No.: (212) 812-0100
and
White & Case LLP
1155 Avenue of the Americas
New York, NY 10036
Attention: John M. Reiss, Esq.
Oliver C. Brahmst, Esq.
Facsimile No.: (212) 354-8113
And
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
Any party hereto may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary
Restructuring Agreement
11
mail, or electronic mail), but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any party may change the address
to which notices, requests, demands, claims, and other communications hereunder
are to be delivered by giving the other parties notice in the manner herein set
forth.
(f) Governing Law. All questions concerning the construction,
validity, and interpretation of this Agreement shall be governed by and
construed in accordance with the domestic laws of the State of New York without
giving effect to any choice or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York. The state or
federal courts located within the state of New York shall have jurisdiction over
any and all disputes between the parties hereto, whether in law or equity,
arising out of or relating to this Agreement and the agreements, instruments and
documents contemplated hereby and the parties hereto 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 hereto hereby agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in section
4(e), 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.
(g) Waiver of Jury Trial. Each of the parties hereto 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.
(h) Amendments and Waivers. This Agreement may be amended, or any
provision of this Agreement may be waived upon a written approval, executed by
the parties hereto. No course of dealing between or among the parties hereto
shall be deemed effective to modify, amend, or discharge any part of this
Agreement or any rights or obligations of any such party or such holder under or
by reason of this Agreement.
(i) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(j) Expenses. Each of the Contributors and Holdings and the Company
will bear its own costs and expenses (including legal fees and expenses)
incurred in connection with this Agreement and the transactions contemplated
hereby; provided, however, that the Company will bear the reasonable legal fees
and expenses of Winston & Strawn LLP, counsel to certain of the Contributors, in
connection with the Restructuring.
Restructuring Agreement
12
(k) Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party hereto by virtue of the
authorship of any of the provisions of this Agreement.
Restructuring Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
AMH HOLDINGS II, INC.
By:
--------------------------------------
Name:
Title:
AMH HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
HARVEST PARTNERS III, L.P.
By: Harvest Associates III, LLC,
its general partner
By:
--------------------------------------
Name:
Title:
HARVEST PARTNERS III,
BETEILIGUNGSGESELLSCHAFT
BURGERLICHEN RECHTS
(MIT HAFTUNGSBESCHRANKUNG)
By: Harvest Associates III, LLC,
its general partner
By:
--------------------------------------
Name:
Title:
HARVEST PARTNERS IV GmbH & Co. KG
By: Harvest Partners IV, LLC,
its general partner
By:
--------------------------------------
Name:
Title:
HARVEST PARTNERS IV, L.P.
By: Harvest Partners IV, LLC,
its general partner
By:
--------------------------------------
Name:
Title:
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:
OLD HICKORY FUND I, LLC
By: PPM America, Inc.,
its manager
By:
--------------------------------------
Name:
Title:
PPM AMERICA PRIVATE EQUITY FUND L.P.
By: PPM America Capital Partners, LLC,
its general partner
By:
--------------------------------------
Name:
Title:
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:
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:
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:
BNY PARTNERS FUND L.L.C.
By: BNY Private Investment Management,
Inc., Member Manager
By:
--------------------------------------
Name:
Title:
NEW YORK LIFE CAPITAL PARTNERS II L.P.
By: NYLCAP Manager LLC,
its Investment Manager
By:
--------------------------------------
Name:
Title:
3755428 CANADA INC.
By:
--------------------------------------
Name:
Title:
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:
EXECUTIVE SIGNATURE PAGE
-----------------------------------
MICHAEL CAPORALE, JR.
-----------------------------------
KENNETH L. BLOOM
-----------------------------------
D. KEITH LAVANWAY
-----------------------------------
DENNIS W. VOLLMERSHAUSEN
Schedule 1
CONTRIBUTED SECURITIES
----------------------
CONTRIBUTED ISSUED HOLDINGS
CONTRIBUTOR COMPANY SHARES SHARES
- -------------------------------------- --------------------- -------------------------
Harvest Partners III, L.P. 131, 978 Shares of Voting 131,978 Shares of Class B
Preferred Stock Voting Common
Harvest Partners III, GbR 18,022 Shares of Voting 18,022 Shares of Class B
Preferred Stock Voting Common
Harvest Partners IV GmbH & Co. KG 77,000 Shares of Voting 77,000 Shares of Class B
Preferred Stock Voting Common
Harvest Partners IV, L.P. 273,000 Shares of Voting 273,000 Shares of Class B
Preferred Stock Voting Common
BancBoston Capital Inc. 91,488 Shares of 91,488 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
Private Equity Portfolio Fund II, LLC 18,298 Shares of 18,298 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
GE Capital Equity Capital Group, Inc. 73,190 Shares of 73,190 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
National City Equity Partners, Inc. 62,212 Shares of 62,212 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
Great Lakes Capital Investments IV, LLC 10,979 Shares of 10,979 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
Liberty Mutual Insurance Company 137,232 Shares of 137,232 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
Old Hickory Fund I, LLC 1,372 Shares of 1,372 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
PPM America Private Equity Fund L.P. 181,603 Shares of 181,603 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
Abbott Capital Private Equity Fund III, L.P. 56,000 Shares of 56,000 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
The Texas Growth Fund II - 1998 Trust 182,976 Shares of 182,976 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
Weston Presidio Capital III, L.P. 65,992 Shares of 65,992 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
Weston Presidio Capital IV, L.P. 156,986 Shares of 156,986 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
WPC Entrepreneur Fund, L.P. 3,256 Shares of 3,256 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
WPC Entrepreneur Fund II, L.P. 2,485 Shares of 2,485 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
BNY Partners Fund L.L.C. 4,000 Shares of 4,000 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
New York Life Capital Partners II L.P. 100,000 Shares of 100,000 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
3755428 Canada Inc.
Michael Caporale, Jr. 205,892 Shares of 71,688 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
Kenneth L. Bloom 56,483 Shares of 6,688 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
D. Keith LaVanway 66,981 Shares of 6,426 Shares of Class B
Non-Voting Preferred Stock Non-Voting Common
Dennis Vollmershausen
AM Holding Limited
AM Equity Limited
AM Investments Limited
Associated Equity Limited
Associated Investments Limited