1
EXHIBIT 10.21
EXCHANGE AND SUBSCRIPTION AGREEMENT
THIS EXCHANGE AND SUBSCRIPTION AGREEMENT (this "Agreement") is made as
of August 27, 1999, by and among Trivest Furniture Corporation, a Florida
corporation (the "Company," which term shall refer to WinsLoew Furniture, Inc.,
a Florida corporation ("WinsLoew"), upon the consummation of the merger of
Trivest Furniture Corporation with and into WinsLoew), and the investors
identified on the schedule attached hereto (collectively, the "Investors," and
each individually, an "Investor").
PRELIMINARY STATEMENTS:
A. Certain of the Investors desire to exchange certain shares of
WinsLoew's common stock, $.01 par value per share ("WinsLoew Common Stock"),
held by them for shares of the Company's common stock, $.01 par value per share
("Company Common Stock"), on the terms and subject to the conditions set forth
in this Agreement.
B. Certain of the Investors desire to purchase shares of Company
Common Stock in exchange for cash in the amount of $100 per share on the terms
and subject to the conditions set forth in this Agreement.
C. The Company desires to issue the Company Common Stock to the
Investors.
D. The Company and the Investors desire to enter into this Agreement
setting forth the terms and conditions relating to the acquisition of Company
Common Stock by the Investors.
E. Contemporaneously with the execution and delivery of this
Agreement, the Company and each Investor are executing and delivering an
Investors' Agreement that will restrict the Investors' ability to transfer the
Company Common Stock acquired hereunder and create certain other rights and
obligations in respect thereof.
F. The transactions contemplated hereby are intended to qualify as a
transaction described in Section 351 of the Internal Revenue Code of 1986, as
amended.
AGREEMENT:
NOW THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. Exchange of WinsLoew Common Stock. Each Investor whose name appears
on Schedule A hereto hereby sells, transfers, conveys, assigns and contributes
to the Company that number of shares of WinsLoew Common Stock set forth beside
such Investor's name on Schedule A hereto, free and clear of all encumbrances.
Each such Investor has heretofore delivered or shall deliver to the Company a
certificate or certificates representing the shares of WinsLoew Common Stock
transferred by such Investor to the Company hereunder, duly endorsed in blank
or accompanied by stock powers duly executed in blank, in form and substance
satisfactory to the Company to effect such transfer. In exchange for the shares
of WinsLoew Common Stock transferred to the Company hereunder, the Company
shall issue and deliver to each such Investor a certificate or certificates for
-1-
2
the number of shares of Company Common Stock set forth beside such Investor's
name on Schedule A hereto, which shares shall be validly issued, fully paid and
nonassessable.
2. Purchase of Company Common Stock. Each Investor whose name appears
on Schedule B hereto hereby subscribes for and agrees to purchase, concurrently
with the execution and delivery of this Agreement by such Investor, and the
Company hereby agrees to issue and sell to such Investor, the number of shares
of Company Common Stock set forth beside such Investor's name on Schedule B
hereto, for the aggregate purchase price set forth on Schedule B (the
"Subscription Price"). Each such Investor has heretofore delivered or shall
deliver to the Company immediately available funds in an amount equal to the
Subscription Price for such shares. In exchange for payment of the Subscription
Price hereunder, the Company shall issue and deliver to each such Investor a
certificate or certificates for the number of shares of Company Common Stock
set forth beside such Investor's name on Schedule B hereto, which shares shall
be validly issued, fully paid and nonassessable.
3. Representations and Warranties.
(a) Representations and Warranties of the Company. The
Company hereby represents and warrants to the Investors as follows:
(i) Organization, Power and Authority. The Company
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Florida. The Company has full corporate power and
authority to carry on the business in which it is engaged and to own and use
the property owned and used by it.
(ii) Authorization of Transaction. The Company has
full corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. This Agreement constitutes the valid and
legally binding obligation of the Company, enforceable in accordance with its
terms.
(iii) Capitalization. The authorized capital stock
of the Company consists of 1,000,000 shares of Company Common Stock, none of
which are outstanding prior to the exchange, purchase and sale of the shares of
Company Common Stock provided for herein. Upon the consummation of the
transactions contemplated by Sections 1 and 2 above, the shares of Company
Common Stock acquired by each Investor pursuant to the provisions of this
Agreement will be duly authorized, validly issued, fully paid and
nonassessable.
(b) Representations and Warranties of Investors. Each
Investor, severally and not jointly, hereby represents and warrants to the
Company with respect to such Investor and its exchange or purchase of shares of
Company Common Stock as follows:
(i) Residence. If the Investor is a natural person,
the Investor a resident of, and received this Agreement and first learned of
the offer and sale of the shares of Company Common Stock contemplated hereby
in, the State set forth opposite the name of such Investor under the heading
"State" on Schedule A or Schedule B attached hereto, as the case may be. The
Investor intends that the laws of such State govern the acquisition of such
shares by the Investor. If the Investor is a limited partnership, the Investor
is organized under and governed by the laws of, and it's principal place of
-2-
3
business is located in, the State set forth opposite the name of such Investor
under the heading "State" on Schedule A or Schedule B attached hereto, as the
case may be.
(ii) Capacity; Authorization; Valid and Binding
Obligation. If the Investor is a natural person, the Investor has full capacity
to execute and deliver this Agreement and to perform the Investor's obligations
hereunder. If the Investor is a limited partnership, the Investor has full
partnership or other power and authority to enter into and perform this
Agreement in accordance with its terms. This Agreement constitutes the valid
and legally binding obligation of the Investor enforceable against the Investor
in accordance with its terms.
(iii) Ownership of WinsLoew Common Stock. If the
Investor is exchanging WinsLoew Common Stock for Company Common Stock, such
Investor is the lawful owner, of record and beneficially, of the shares of
WinsLoew Common Stock owned by such Investor (which are those shares of
WinsLoew Common Stock listed beside such Investor's name on Schedule A hereto)
and has good title to such shares, free and clear of any and all encumbrances.
Such Investor has transferred and conveyed, and the Company has acquired, good
title to those shares of WinsLoew Common Stock listed beside such Investor's
name on Schedule A hereto, free and clear of any and all encumbrances.
(iv) Acquisition for Investment; Accredited Investor
Status; Sophistication. It is the present intention of the Investor that the
shares of Company Common Stock being acquired by such Investor are being
acquired for such Investor's own account for the purpose of investment and not
with a present view to or for sale in connection with any distribution thereof;
provided, however, that the disposition of the property of each Investor shall
at all times be within its control. The Investor is an "accredited investor"
within the meaning of Rule 501 of Regulation D under the Securities Act of
1933, as amended ("Rule 501"), and, if such Investor is not an individual
person, either (A) it was not organized for the specific purpose of acquiring
the shares of Company Common Stock, or (B) each person who has invested in the
Investor is an "accredited investor" within the meaning of Rule 501. The
Investor is sophisticated in financial matters and has sufficient knowledge and
experience so as to be able to evaluate the risks and merits of the Investor's
investment in the Company and is able financially to bear the risks thereof.
(v) Certain Risk Factors; Opportunity to Ask
Questions; Reliance. The Investor understands the speculative nature of and
risks involved in the proposed investment in the Company and that the
investment is suitable only for persons of adequate financial means who have no
need for liquidity in the investment in that the Investor may not be able to
liquidate the investment in the event of an emergency, transferability is
limited and, in the event of a disposition, the Investor could sustain a
complete loss of the entire investment. The Investor is familiar with and has
had an opportunity to ask questions and receive answers concerning the
financial condition and operations of the Company and its subsidiaries and has
had full access to such other information concerning the Company and its
subsidiaries as the Investor has requested. The Investor is acquiring the
shares of Company Common Stock without having been furnished any
representations or warranties of any kind whatsoever with respect to the
business and financial condition of the Company and its subsidiaries, other
than the representations contained herein.
-3-
4
4. Florida Rescission Right. ANY SALE MADE PURSUANT TO FLORIDA
STATUTES SECTION 517.061 IS VOIDABLE BY THE PURCHASER WITHIN THREE DAYS AFTER
THE FIRST TENDER OF CONSIDERATION IS MADE BY SUCH PURCHASER TO THE ISSUER, AN
AGENT OF THE ISSUER, OR AN ESCROW AGENT.
5. Miscellaneous. If any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or any other jurisdiction, but this Agreement
will be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
This Agreement constitutes the entire agreement among the parties and
supersedes any prior understandings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way. This Agreement may be executed in counterparts and any
telecopied signature shall be deemed a manually executed and delivered
original. This Agreement is intended to bind and inure to the benefit of and be
enforceable by the Investors, the Company and their respective successors and
assigns and, where applicable, heirs and personal representatives. Except as
otherwise provided herein, this Agreement shall be governed and construed in
accordance with the laws of the State of Florida without regard to conflicts of
laws principles. Each party hereby irrevocably submits to the exclusive
jurisdiction of any state or federal court sitting in Miami-Dade County,
Florida in any action or proceeding arising out of or relating to this
Agreement and hereby irrevocably waives any objection such person may now or
hereafter have as to the venue of any such suit, action or proceeding brought
in such a court or that such court is an inconvenient forum. No provision of
this Agreement may be amended or waived without the prior written consent of
the Company and the particular Investor whose Agreement is sought to be amended
or waived.
-4-
5
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first above written.
TRIVEST FURNITURE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx, Xx., Vice President
INVESTORS:
TRIVEST FURNITURE PARTNERS, LTD.
By: TFP, Ltd., its General Partner
By: Trivest II, Inc., its General Partner
By: /s/ B. Xxx Xxxxxxxx
-----------------------------------
B. Xxx Xxxxxxxx, Director
Address:
c/o Trivest, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Taxpayer Identification Number: 00-0000000
TRIVEST FUND II GROUP, LTD.
By: Trivest Equities, Inc.,
its General Partner
By: /s/ B. Xxx Xxxxxxxx
-----------------------------------
B. Xxx Xxxxxxxx, Director
Address:
c/o Trivest, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Taxpayer Identification Number: 00-0000000
-5-
6
/s/ XXXX X. XXXXXX
--------------------------------------------
XXXX X. XXXXXX
Address:
c/o Trivest, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Taxpayer Identification Number: ###-##-####
/s/ XXXXXXX X. XXXXXX, M.D.
--------------------------------------------
XXXXXXX X. XXXXXX, M.D.
Address:
c/o Trivest, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Taxpayer Identification Number: ###-##-####
/s/ XXXX X. XXXXXXXXX
--------------------------------------------
XXXX X. XXXXXXXXX
Address:
c/o Trivest, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Taxpayer Identification Number: ###-##-####
/s/ BREVATOR X. XXXXXX, M.D.
--------------------------------------------
BREVATOR X. XXXXXX, M.D.
Address:
000 Xxxx Xxxxx Xxxxxx, Xxxxx X
Xxxxx, Xxxxxxxxxx 00000
Taxpayer Identification Number: ###-##-####
-6-
7
/s/ XXXXX X. XXXXX
--------------------------------------------
XXXXX X. XXXXX
Address:
c/o Resource Holdings, Ltd.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Taxpayer Identification Number: ###-##-####
/s/ XXXXX XXXXXX
--------------------------------------------
XXXXX XXXXXX
Address:
c/o WinsLoew Furniture, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Taxpayer Identification Number: ###-##-####
/s/ XXXXXXX X. XXXX
--------------------------------------------
XXXXXXX X. XXXX
Address:
c/o WinsLoew Furniture, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Taxpayer Identification Number: ###-##-####
/s/ R. XXXXX XXXXX
--------------------------------------------
R. XXXXX XXXXX
Address:
c/o Loewenstein Furniture Group, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Taxpayer Identification Number: ###-##-####
-7-
8
/s/ XXXXXXX X. XXXXXXXXX
--------------------------------------------
XXXXXXX X. XXXXXXXXX
Address:
c/o WinsLoew Furniture, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Taxpayer Identification Number: ###-##-####
/s/ XXXX X. XXXXXXXX
--------------------------------------------
XXXX X. XXXXXXXX
Address:
c/o WinsLoew Furniture, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Taxpayer Identification Number: ###-##-####
/s/ XXXXX X. XXXX
--------------------------------------------
XXXXX X. XXXX
Address:
c/o WinsLoew Furniture, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Taxpayer Identification Number: ###-##-####
-8-
9
SCHEDULE A
TO EXCHANGE AND SUBSCRIPTION AGREEMENT
NUMBER OF NUMBER OF
INVESTOR WINSLOEW SHARES COMPANY SHARES STATE
-------------------------------------- --------------- -------------- ---------
1. Trivest Furniture Partners, Ltd. 117,500 40,831.2500 Florida
2. Xxxx X. Xxxxxx 86,331 30,000.0225 Florida
3. Xxxxxxx X. Xxxxxx, M.D. 28,187 9,794.9825 Florida
4. Xxxx X. Xxxxxxxxx 1,050 364.8750 Florida
5. Xxxxx X. Xxxxx 4,798 1,667.3050 Florida
6. Brevator X. Xxxxxx, M.D. 2,399 833.6525 California
7. Xxxxx Xxxxxx 33,323 11,579.7425 Alabama
8. Xxxxxxx X. Xxxx 10,000 3,475.0000 Alabama
9. R. Xxxxx Xxxxx 25,900 9,000.2500 Florida
10. Xxxx X. Xxxxxxxx 14,978 5,204.8550 Alabama
11. Xxxxxxx X. Xxxxxxxxx XXX(1) 10,072 3,500.0200 Alabama
12. Xxxxx X. Xxxx 1,762 612.2950 Alabama
TOTAL 336,300 116,864.2500
--------
(1) Xxxxxxx X. Xxxxxxxxx, Xx. Individual Retirement Account, Account #1238SD,
Community Bank (Blountsville, Alabama), Custodian
10
SCHEDULE B
TO EXCHANGE AND SUBSCRIPTION AGREEMENT
AGGREGATE
PURCHASE NUMBER OF
INVESTOR PRICE COMPANY SHARES STATE
-------------------------------------- --------------- -------------- ---------
1. Trivest Furniture Partners, Ltd. $33,625,000.00 336,250.0000 Florida
2. Trivest Fund II Group, Ltd. $31,164,799.25 311,647.9925 Florida
3. Xxxxxxx X. Xxxxxxxxx $349,998 3,499.9800 Alabama
4. Xxxx X. Xxxxxxxx $179,514.50 1,795.1450 Alabama
5. Xxxxx X. Xxxx $138,770.50 1,387.7050 Alabama
TOTAL $65,458,082.25 654,580.8225
