AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this
"Agreement"), dated as of October 2, 1998, is made by and among D and W
Holdings, Inc., a Delaware corporation ("Parent"), and the individuals set forth
on the signature pages hereto (collectively, the "Rolling Securityholders").
PRELIMINARY STATEMENTS
A. Parent, D and W Acquisition Corp., a Delaware corporation ("Sub"),
Atrium Corporation, a Delaware corporation (the "Company"), and the
securityholders of the Company entered into an Agreement and Plan of Merger,
dated as of August 3, 1998 (the "Merger Agreement"), with respect to the merger
of Sub with and into the Company.
B. Capitalized terms used and not defined herein shall have the
respective meanings ascribed to them in the Merger Agreement.
C. As contemplated by Sections 7.6 and 13.2 of the Merger Agreement,
some or all of the Shares and/or Options held by the Rolling Securityholders
shall be converted into shares of Common Stock, par value $.01 per share, of
Parent ("Parent Common Stock") or options to purchase Parent Common Stock, as
applicable.
D. To this end, the parties hereto wish to amend certain of the terms
and conditions of the Merger Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the covenants and agreements set
forth herein and in the Merger Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
upon the terms and conditions hereinafter set forth, the parties hereto,
intending to be legally bound, agree as follows:
1. AMENDMENT TO MERGER AGREEMENT.
(a) The first sentence of Section 2.9(a) of the Merger Agreement shall
be deleted in its entirety and replaced with the following:
At the Closing, Parent and the Surviving Corporation shall
transfer to a bank or trust company designated by Parent (the
"Exchange Agent"), by wire transfer of immediately available
funds, cash in an amount equal to (i) the Merger Consideration,
minus (ii) the aggregate amount paid to Securityholders pursuant
to Paragraph 2.9(b), minus (iii) the Escrow Amount, minus (iv)
the Company Transaction Costs Holdback Amount, minus (v) the
Aggregate Rolled Amount (as herein defined).
(b) Each Rolling Securityholder acknowledges and agrees
that, notwithstanding the provisions of Sections 2.9(a) and 2.9(b) of the Merger
Agreement:
(i) such Rolling Securityholder will not be eligible to
receive a portion of the Merger Consideration in cash from Parent
and/or the Exchange Agent in the manner set forth in Sections
2.9(a) and 2.9(b) of the Merger Agreement in exchange for the
Common Stock set forth beside such Rolling Securityholder's name
on EXHIBIT A hereto (the "Rolled Common Stock") or the Options
set forth beside such Rolling Securityholder's name on EXHIBIT B
hereto (the "Rolled Options"); and
(ii) to the extent that such Rolling Securityholder is
not eligible to receive a portion of the Merger Consideration as
contemplated by Section 1(b)(i) of this Agreement, such Rolling
Securityholder shall receive Parent Common Stock or options to
purchase Parent Common Stock, as applicable, as set forth in, and
subject to the terms and conditions of, the Subscription
Agreement by and between Parent and such Rolling Securityholder
dated as of October 2, 1998 and/or the Replacement Stock Option
Agreement by and between Parent and such Rolling Securityholder
dated as of October 2, 1998.
2. DEFINITIONS. Section 1.1 of the Merger Agreement shall be
amended by inserting the following new defined terms in the appropriate
alphabetical order:
"AGGREGATE ROLLED AMOUNT" means the aggregate Rolled Amounts
of all Rolling Securityholders.
"AMENDMENT NO.1" means Amendment No.1 to Agreement and
Plan of Merger dated as of October 2, 1998 ("Amendment No.1") by
and among Parent and the individuals set forth therein.
"ROLLED AMOUNT" means, with respect to each Rolling
Securityholder, the amount equal to the sum of:
(i)(x) the product obtained when the number of shares of
Rolled Common Stock (as defined in Section 1 of Amendment
No.1) is multiplied by the Per Share Merger Consideration,
minus (y) the amount set forth opposite such Stockholder's
name in column G of SCHEDULE I; and
(ii) (x) the product obtained when the number of shares of
Common Stock issuable upon the exercise of Rolled Options
(as defined in Section 1 of Amendment No.1) immediately
prior to the Effective Time, whether at or upon the passage
of time or the occurrence of future events, is multiplied
by an amount equal to the excess of the Per Share Merger
Consideration over the per share exercise price of such
Rolled Option, minus (y) the amount set forth opposite such
Optionholder's name in column H of SCHEDULE I.
"ROLLING SECURITYHOLDER" has the meaning set forth in the
preamble of Amendment No. 1.
"TRANSACTION DOCUMENTS" means the collective reference to
Amendment No. 1, the Merger Agreement, the Indemnification Escrow
Agreement and each other agreement, document and instrument
required to be executed in accordance therewith.
3. GENERAL PROVISIONS.
(a) FURTHER ASSURANCES. Each party hereto shall do and
perform or cause to be done and performed all such further acts and things and
shall execute and deliver all such other agreements, certificates, instruments
and documents as any other party hereto reasonably may request in order to carry
out the intent and accomplish the purposes of this Agreement.
(b) AMENDMENT. This Agreement may not be amended or
supplemented except by an instrument or counterparts thereof in writing signed
by the parties to be bound thereby. The Merger Agreement, as amended hereby, is
hereby ratified and confirmed in all respects and shall continue in full force
and effect.
(c) SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal, or incapable of being enforced by any rule of
applicable law, or public policy, all other conditions and provisions of this
Agreement shall
nevertheless remain in full force and effect. The parties further agree that any
court of competent jurisdiction is expressly authorized to modify any such
unenforceable provision of this Agreement in lieu of severing such unenforceable
provision from this Agreement in its entirety, whether by rewriting the
offending provision, deleting any or all of the offending provision, adding
additional language to this Agreement, or by making such other modifications as
it deems warranted to carry out the intent and agreement of the parties as
embodied herein to the maximum extent permitted by law. The parties expressly
agree that this Agreement as so modified by a court of competent jurisdiction
shall be binding upon and enforceable against each of them.
(d) PARTIES IN INTEREST. This Agreement shall be binding
upon and inure solely to the benefit of such party hereto and their permitted
successors and assigns. Nothing in this Agreement is intended to confer upon any
other person any rights or remedies of any nature whatsoever under or by reason
of this Agreement except as expressly set forth herein. Neither this Agreement
nor any rights, interests or obligations hereunder may be assigned by any
Withholding Stockholder without the prior written consent of the Parent.
(e) COUNTERPARTS. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, all
of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties, it being understood that all parties need
not sign the same counterpart.
(f) ENTIRE AGREEMENT. This Agreement (and the schedules
and exhibits hereto), the Merger Agreement (which term shall be deemed to
include the exhibits and schedules thereto and the other certificates, documents
and instruments delivered thereunder) and the Confidentiality Agreement
constitute the entire agreement of the parties hereto, and supersede all prior
agreements, letters of intent and understand ings, both written and oral, among
the parties with respect to the subject matter hereof.
(g) GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware without
giving effect to any conflicts of law provisions.
(h) ASSIGNMENT. Neither this Agreement nor any of the
rights, interests, or obligations hereunder shall be assigned by any of the
parties hereto, whether by operation of law or otherwise; provided, however,
that upon notice to the Company and the Representative and without releasing
Parent from any of their respective obligations or liabilities hereunder, Parent
may assign or delegate any or all of its rights
or obligations under this Agreement to any Affiliate of Parent. In the event of
such an assignment, the provisions of this Agreement shall inure to the benefit
of and be binding on the assigns of Parent. Any attempted assignment in
violation of this Section shall be null and void.
(i) HEADINGS. The headings of this Agreement are for
convenience of reference only and are not part of the substance of this
Agreement.
(j) EXHIBITS. All Exhibits referred to in this Agreement
are intended to be and are hereby specifically made a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date and year first above written.
D AND W HOLDINGS, INC.
By: ___________________________________
Name:
Title:
ROLLING SECURITYHOLDERS
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Xxxx Xxxxxxxx
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Xx Xxxx
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Xx Xxxxxxxx
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Xxxx Xxxxxxxx
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Xxx Xxxxx
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Xxxxxx Xxxx
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Xxxx Xxxxxx
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Xxx Xxxxxx
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Xxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
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Xxxxxx Xxxxx
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Xxxxx Xxxxxxx
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Xxxxxx Xxxxx
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Xxxx Xxxxxxxxx
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Rich Kettle
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Xxxx Xxxx
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Xxx XxXxxxx
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Xxxx Xxxx
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Xxxxx XxXxxx
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Xxx XxXxxxx
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Dow Pointer
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Xxxxx Xxxxxxx
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Xxxxx Xxxxxxxx
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Xxx Xxxx
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Xxx Xxxxxx
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Xxxx Xxxxxxx
EXHIBIT A
---------
Name
----
Xxxxxxxx 28,261
Xxxxxxxx 4,348
Xxxxx 4,348
Xxxxxx 6,522
Deakin 2,174
Easterly 2,174
Kettle 13,913
XxXxxxx 6,522
Xxxxxx 5,217
TOTAL: 73,479
EXHIBIT B
---------
Name
----
Xxxxxxxx 10,870
-------- ------
Xxxx 870
---- ---
Xxxxxxxx 15,217
-------- ------
Xxxxxxxx 39,130
-------- ------
Xxxxx 6,522
----- -----
Xxxx 1,739
---- -----
Xxxxxx 15,217
------ ------
Deakin 19,565
------ ------
Easterly 19,565
-------- ------
Xxxxxxx Xxxxxxxx 434,783 (1)
---------------- -------
Xxxxxxx Xxxxxxxx 43,478
Frost 43,478
Xxxxxxx 10,870
Xxxxxx Xxxxx 43,478
Xxxxxxxxx 43,478
Hull 54,348
Kettle 7,826
XxXxxxx 435
Long 10,870
McGill 435
XxXxxxx 26,087
Pointer 32,609
Xxxxxxx 4,348
Xxxxxxxx 108,696
Simi 108,696
Xxxxxx 16,522
Xxxxxxx 435
TOTAL: 1,119,567
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(1) Xxxxxxx Xxxxxxxx is converting warrants, as opposed to options, at the same
ratio.