Exhibit 10.100
EXCHANGE
AGREEMENT
This Exchange Agreement (this
“ Agreement ”) is made and entered into as of
July , 2009, by and between
(the “ Holder ”), and Headwaters Incorporated, a
Delaware corporation (the “ Company
”).
RECITALS
WHEREAS, the Holder currently holds
$[ ] principal
amount of the Company’s 2 7 / 8
% Convertible Senior Subordinated
Notes due 2016 of the Company (the “ 2
7
/ 8 %
Notes ”);
WHEREAS, the Holder desires to
exchange the 2 7 / 8
% Notes for shares of the
Company’s common stock (the “ Common Stock
”), on the terms and conditions set forth in this Agreement
(the “ Exchange ”);
WHEREAS, the Company desires to
issue to the Holder that number of shares of the Company’s
Common Stock set forth in Section 1.1 below in exchange for
the 2 7 / 8
% Notes in the Exchange;
NOW, THEREFORE, in consideration of
the premises and the agreements set forth below, and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
ARTICLE 1
Exchange
Section 1.1 Exchange and
Sale of the Common Stock . Upon the terms and subject to the
conditions of this Agreement, at the Closing (as defined herein),
the Company shall issue and exchange, subject to Section 1.2
hereof, to the Holder, and the Holder agrees to accept from the
Company, [ ] ([ ])
shares of Common Stock in exchange for the 2
7
/ 8 % Notes.
The number of shares of Common Stock issued to Holder in exchange
for the 2 7 / 8
% Notes pursuant to the terms of
this Agreement are referred to herein as the “Exchange
Shares.”
Section 1.2 Cancellation of
2 7 / 8 %
Notes . Pursuant to the
indenture (the “ 2 7 / 8 %
Indenture ”)
relating to the 2 7 / 8
% Notes, Holder hereby agrees that
the aggregate principal amount and all accrued unpaid interest on
the 2 7 / 8
% Notes shall be cancelled in
connection with the Exchange. Holder acknowledges that the
cancellation of the 2 7 / 8
% Notes shall have the effects
specified in the 2 7 / 8
% Indenture governing the applicable
2 7
/ 8 %
Notes.
Section 1.3
Section 3(a)(9) Exchange . In consideration of and for
the Exchange, the Company agrees to issue to Holder the Exchange
Shares. The issuance of the Exchange Shares to Holder will be made
without registration of such Exchange Shares under the Securities
Act of 1933, as amended (together with the rules and regulations
thereunder, the “ Securities Act ”), in reliance
upon the exemption therefrom provided by Section 3(a)(9) of
the Securities Act. Holder acknowledges that the Company is relying
upon the truth and accuracy of, and the Holder’s compliance
with, its representations, warranties, agreements, acknowledgments
and understandings set forth herein in order to determine the
availability of such exemptions and the eligibility of the Holder
for the Exchange.
Section 1.4 Closing
Mechanics . The closing of the transactions contemplated by
this Agreement shall occur at the offices of Pillsbury Winthrop
Shaw Pittman LLP, 50 Fremont Street, San Francisco, California
94105, or such other location as may be mutually acceptable in each
case at 9:00 a.m., San Francisco time, on July 31, 2009
or at such other time on the same date or such
other date as the parties may agree in writing
(such time and date, the “ Closing Date ”).
Prior to the Closing Date, Holder shall instruct its broker or
other participant in the Fast Automated Securities Transfer Program
of the Depositary Trust Company (“ DTC ”) to
transfer and deliver the 2 7 / 8
% Notes to the Trustee for purposes
of cancellation. On the Closing Date, the shares of Common Stock to
be issued in the Exchange shall be transmitted by the transfer
agent of the Company to the Holder by crediting the account of
Holder’s prime broker with DTC through DTC’s
Deposit/Withdrawal at Custodian (“DWAC”) program. The
Company shall publicly disclose the Exchange through the issuance
of a Form 8-K prior to the opening of trading on the Closing
Date.
Section 1.5 Conditions to
Closing .
(a) The obligation of the Holder
hereunder to consummate the transactions contemplated hereby at the
Closing is subject to the satisfaction, at or before the Closing
Date, of each of the following conditions, provided that these
conditions are for the Holder’s sole benefit and may be
waived by the Holder at any time in its sole discretion by
providing the Company with prior written notice thereof:
(i) The Company shall have caused
its transfer agent to credit to Holder or its designee the Exchange
Shares;
(ii) The Company shall have
submitted an additional share listing application for the Exchange
Shares with the New York Stock Exchange on or prior to the Closing
Date and shall cause the Exchange Shares to be approved by the New
York Stock Exchange for listing on the Closing Date or as soon as
practicable thereafter; and
(iii) The representations and
warranties of the Company in this Agreement shall be true and
correct in all material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and the Company has
complied in all material respects with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date.
(b) The obligation of the Company
hereunder to consummate the transactions contemplated hereby at the
Closing is subject to the satisfaction, at or before the Closing
Date, of each of the following conditions, provided that these
conditions are for the Company’s sole benefit and may be
waived by the Company at any time in its sole discretion by
providing the Holder with prior written notice thereof:
(i) The Holder shall have delivered,
or caused to be delivered, to the Company (i) the 2
7
/ 8 % Notes
being exchanged pursuant to this Agreement in accordance with the
written instructions of the Company and (ii) all documentation
related to the right, title and interest in and to all of the
2 7
/ 8 % Notes,
and whatever documents of conveyance or transfer may be necessary
or reasonably desirable to transfer to and confirm in the Company
all right, title and interest in and to (free and clear of any
mortgage, lien, pledge, charge, security interest, encumbrance,
title retention agreement, option, equity or other adverse claim
thereto) the 2 7 / 8
% Notes, including the delivery to
the Company at or prior to the execution of this Agreement of a
properly completed Letter of Transmittal in the form provided to
the Holder; and
(ii) The representations and
warranties of the Holder in this Agreement shall be true and
correct in all material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and that the Holder
shall have complied in all material respects with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date.
Section 1.6 Exchange of
Additional Notes . Simultaneously with or after the Closing,
the Company may issue, to one or more other holders of the
Company’s outstanding convertible senior subordinated notes
(the “ Other Holders ”), shares of Common Stock
on substantially the same terms and conditions offered to the
Holder.
2
ARTICLE 2
Representations and Warranties of
the Holder
The Holder hereby makes the
following representations and warranties, each of which is true and
correct on the date hereof and the Closing Date and shall survive
the Closing Date and the transactions contemplated hereby to the
extent set forth herein.
Section 2.1 Existence and
Power .
(a) The Holder is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization and has the power, authority and
capacity to execute and deliver this Agreement, to perform its
obligations hereunder, and to consummate the transactions
contemplated hereby.
(b) The execution of this Agreement
by the Holder and the consummation by the Holder of the
transactions contemplated hereby do not and will not constitute or
result in a breach, violation, conflict or default under any note,
bond, mortgage, deed, indenture, lien, instrument, contract,
agreement, lease or license to which the Holder is a party, whether
written or oral, express or implied, or any statute, law,
ordinance, decree, order, injunction, rule, directive, judgment or
regulation of any court, administrative or regulatory body,
governmental authority, arbitrator, mediator or similar body on the
part of the Holder or on the part of any other party thereto or
cause the acceleration or termination of any obligation or right of
the Holder, except for such breaches, conflicts, defaults, rights
or violations which would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on the
ability of the Holder to perform its obligations hereunder. As used
in this Agreement, the term “ Material Adverse Effect
” shall mean a material adverse effect on the business,
condition (financial or otherwise), properties or results of
operations of the party, or an event, change or occurrence that
would materially adversely affect the ability of the party to
perform its obligations under this Agreement which would limit the
Holder’s power to transfer the 2 7 / 8
% Notes hereunder.
Section 2.2 Valid and
Enforceable Agreement; Authorization . This Agreement has been
duly executed and delivered by the Holder and constitutes a legal,
valid and binding obligation of the Holder, enforceable against the
Holder in accordance with its terms, except that such enforcement
may be subject to (a) bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting or relating to
enforcement of creditors’ rights generally, and
(b) general principles of equity.
Section 2.3 Title to
2 7 / 8 %
Notes . The Holder has
good and valid title to the
