-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, B8pnYh3Fdb5NKPpfMoP7i0jCQz2nQZxf5T+XL6db2ysAsFY5RJH/Dta4zluuYCQl EHvbtGgZCKXOP5AQJ7v9wA== 0000950123-02-009740.txt : 20021016 0000950123-02-009740.hdr.sgml : 20021016 20021016171154 ACCESSION NUMBER: 0000950123-02-009740 CONFORMED SUBMISSION TYPE: S-4/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20021016 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALSIDE INC CENTRAL INDEX KEY: 0001184532 IRS NUMBER: 751872487 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-92010-01 FILM NUMBER: 02790766 BUSINESS ADDRESS: STREET 1: ASSOCIATAED MATERIALS INC STREET 2: 3773 STATE RD CITY: CUYAHOGA FALLS STATE: OH ZIP: 44223 BUSINESS PHONE: 8002574335 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ASSOCIATED MATERIALS INC CENTRAL INDEX KEY: 0000802967 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 751872487 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-92010 FILM NUMBER: 02790765 BUSINESS ADDRESS: STREET 1: 2200 ROSS AVE STE 4100 E CITY: DALLAS STATE: TX ZIP: 75201 BUSINESS PHONE: 2142204600 MAIL ADDRESS: STREET 1: 2200 ROSS AVENUE STREET 2: SUITE 4100 EAST CITY: DALLAS STATE: TX ZIP: 75201 S-4/A 1 y61690a3sv4za.txt AMENDMENT NO. 3 TO S-4: ASSOCIATED MATERIALS ETAL AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 16, 2002 REGISTRATION NO. 333-92010 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON D.C. 20549 --------------------- AMENDMENT NO. 3 TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- ASSOCIATED MATERIALS INCORPORATED ALSIDE, INC. (Exact Name of Registrant as (Exact Name of Registrant as Specified in Its Charter) Specified in Its Charter) DELAWARE DELAWARE (State or Other Jurisdiction of (State or Other Jurisdiction of Incorporation or Organization) Incorporation or Organization) 3089 3089 (Primary Standard Industrial (Primary Standard Industrial Classification Code Number) Classification Code Number) 75-1872487 75-1872487 (I.R.S. Employer (I.R.S. Employer Identification Number) Identification Number) 3773 STATE ROAD C/O ASSOCIATED MATERIALS INCORPORATED CUYAHOGA FALLS, OHIO 44223 3773 STATE ROAD (800) 257-4335 CUYAHOGA FALLS, OHIO 44223 (Address, Including Zip Code, and (800) 257-4335 Telephone Number, Including Area Code, of (Address, Including Zip Code, and Registrant's Principal Executive Offices) Telephone Number, Including Area Code, of Registrant's Principal Executive Offices)
--------------------- D. KEITH LAVANWAY ASSOCIATED MATERIALS INCORPORATED 3773 STATE ROAD CUYAHOGA FALLS, OHIO 44223 (800) 257-4335 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service) --------------------- WITH COPIES TO: JOHN M. REISS, ESQ. JONATHAN E. KAHN, ESQ. WHITE & CASE LLP 1155 AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10036 (212) 819-8200 --------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after the effective date of this registration statement. --------------------- If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box: [ ] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: [ ] --------------------- THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS Reference is made to Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL"), which permits a corporation in its certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director for violations of the director's fiduciary duty, except (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions), or (iv) for any transaction from which the director derived an improper personal benefit. The Amended and Restated Certificate of Incorporation of Associated Materials Incorporated (the "Company") contains the provisions permitted by Section 102(b)(7) of the DGCL. Reference is made to Section 145 of the DGCL which provides that a corporation may indemnify any persons, including directors and officers, who are, or are threatened to be made, parties to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such director, officer, employee or agent acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interest and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was unlawful. A Delaware corporation may indemnify directors and/or officers in an action or suit by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the director or officer is adjudged to be liable to the corporation. Where a director or officer is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses which such director or officer actually and reasonably incurred. The above provisions of the DGCL are nonexclusive. The Company's Amended and Restated Certificate of Incorporation (the "Certificate of Incorporation") and the Amended and Restated By-laws (the "By-laws") provides that each person who is or was a director or officer of the Company, or each such person who is or was serving at the request of the Board of Directors or an officer of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including the heirs, executors, administrators or estate of such person), shall be indemnified by the Company to the full extent permitted from time to time by the DGCL as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment) or any other applicable laws as presently or hereafter in effect. The indemnification provided for under Article IV of the By-laws shall not be deemed exclusive of any other rights to which any person seeking indemnification may be entitled, under the Certificate of Incorporation or under any other bylaw, agreement, insurance policy, vote of stockholders or disinterested directors, applicable law or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. The Company's Certificate of Incorporation provides that to the full extent permitted by the DGCL or any other applicable laws presently or hereafter in effect, no director of the Company shall be personally liable to the Company or its stockholders for or with respect to any acts or omissions in the performance of his or her duties as a director of the Company. II-1 The Company provides insurance for each director and officer for certain losses arising from claims or charges made against them while acting in their capacities as directors or officers of the Company. Article IV, Section 6 of the By-laws provides that, by action of the Board of Directors, notwithstanding any interest of the directors in the action, the Company shall have the power to purchase and maintain insurance, in such amounts as the Board of Directors deems appropriate, on behalf of any person who is or was a director or officer of the Company, or is or was serving at the request of the Company as director, officer, employee or agent of another corporation, partnership, joint venture, trust, association or other enterprise, against any liability asserted against him and incurred by him in any such capacity or arising out of his status as such, whether or not he is indemnified against such liability or expense under the provisions of Article IV of the Bylaws and whether or not the Company would have the power or would be required to indemnify him against such liability under the provisions of Article IV of the Bylaws or of the DGCL or by any other applicable law. ITEM 21. EXHIBIT AND FINANCIAL STATEMENTS INDEX (a) Exhibits:
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 2.1* Agreement and Plan of Merger, dated as of March 16, 2002, by and among Associated Materials Holdings Inc. (formerly known as Harvest/AMI Holdings Inc.), Simon Acquisition Corp. and the Company (incorporated by reference to Exhibit 99(d)(1) of Schedule TO filed by Associated Materials Holdings, Inc. and certain affiliates, File No. 005-53705, filed on March 22, 2002). 3.1* Amended and Restated Certificate of Incorporation of the Company. 3.2* Amended and Restated By-Laws of the Company. 3.3* Certificate of Incorporation of Alside, Inc. 3.4* Amended and Restated Bylaws of Alside, Inc. 4.1* Registration Rights Agreement, dated as of April 23, 2002, by and among the Company, AMI Management Company, Credit Suisse First Boston Corporation, UBS Warburg LLC and CIBC World Markets Corp. 4.2* Indenture governing the Registrant's 9 3/4% Senior Subordinated Notes Due 2012, dated as of April 23, 2002, by and among the Company, AMI Management Company and Wilmington Trust Company. 4.3* Supplemental Indenture governing the Company's 9 3/4% Senior Subordinated Notes Due 2012, dated as of May 10, 2002 by and among the Company, AMI Management Company, Alside, Inc. and Wilmington Trust Company. 4.4* Form of the Company's 9 3/4% Senior Subordinated Note due 2012. 4.5* Form of Indenture governing the Company's 9 1/4% Senior Subordinated Notes due 2008, between the Company and The Bank of New York Trust Company of Florida, N.A. (as successor to U.S. Trust Company of Texas, N.A.) (incorporated by reference to Exhibit 4.1 of the Company's Registration Statement on Form S-1/A, File No. 3333-42067, filed on January 30, 1998). 4.6* First Supplemental Indenture governing the Company's 9 1/4% Senior Subordinated Notes due 2008, dated as of April 4, 2002, by and among the Company and The Bank of New York Trust Company of Florida, N.A (as successor to U.S. Trust Company of Texas, N.A.). 4.7* Form of 9 1/4% Senior Subordinated Note due 2008 (incorporated by reference to Exhibit A of Exhibit 4.1 of the Company's Registration Statement on Form S-1/A, File No. 333-42067, filed on January 30, 1998). 5.1* Legal Opinion of White & Case LLP as to the legality of the securities being issued.
II-2
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 10.1* Credit Agreement, dated as of April 19, 2002, by and among the Company, Associated Materials Holdings Inc., the various financial institutions and other Persons from time to time parties thereto, UBS AG, Stamford Branch, as administrative agent, Credit Suisse First Boston, Cayman Islands Branch, as syndication agent, CIBC World Markets Corp., as documentation agent, and UBS Warburg LLC and Credit Suisse First Boston Corporation, as joint lead arrangers (the "Credit Agreement"). 10.2* Borrower Security and Pledge Agreement of the Company, dated as of April 19, 2002, by the Company, in favor of UBS AG, Stamford Branch, as administrative agent. 10.3* Form of Subsidiary Security and Pledge Agreement, by each subsidiary of the Company from time to time party thereto in favor of UBS AG, Stamford Branch, as administrative agent, on behalf of the Secured Parties (as defined in the Credit Agreement). 10.4* Form of Subsidiary Guaranty, by each subsidiary of the Company from time to time party thereto in favor of UBS AG, Stamford Branch, as administrative agent, on behalf of the Secured Parties (as defined in the Credit Agreement). 10.5* Assumption Agreement, dated as of April 19, 2002, by and among the Company and AMI Management Company, as guarantors. 10.6* Agreement of Sale, dated as of January 30, 1984, between USX Corporation (formerly United States Steel Corporation) ("USX") and the Company (incorporated by reference to Exhibit 10.1 of the Company's Registration Statement on Form S-1, File No. 33-64788). 10.7* Amendment Agreement, dated as of February 29, 1984, between USX and the Company (incorporated by reference to Exhibit 10.2 of the Company's Registration Statement on Form S-1, File No. 33-64788). 10.8* Form of Indemnification Agreement between the Company and each of the directors and executive officers of the Company (incorporated by reference to Exhibit 10.14 to the Company's Registration Statement on Form S-1, File No. 33-84110). 10.9* Incentive Bonus Plan of the Company (incorporated by reference to Exhibit 10.10 of the Company's Annual Report on Form 10-K filed for December 31, 2000). 10.10* Severance Agreement, dated December 27, 2001, between the Company and Robert F. Hogan, Jr. (incorporated by reference to Exhibit 10.13 of the Company's Annual Report on Form 10-K filed for December 31, 2001). 10.11* Management Agreement, dated as of April 19, 2002, by and between Harvest Partners, Inc. and the Company. 10.12* Asset Purchase Agreement, dated as of June 24, 2002, between the Company and AmerCable Incorporated. 10.13* Associated Materials Holdings Inc. 2002 Stock Option Plan. 10.14* Employment Agreement, dated as of July 1, 2002, between the Company and Michael Caporale, Jr. 10.15* Employment Agreement, dated as of August 21, 2002, between the Company and D. Keith LaVanway. 10.16** Agreement, dated as of January 1, 1998, between Shintech Incorporated and the Alside division of the Company.+ 10.17* Associated Materials Holdings Inc. Stock Option Award Agreement, dated September 4, 2002, between Associated Materials Holdings Inc. and Michael J. Caporale, Jr. 10.18* Associated Materials Holdings Inc. Stock Option Award Agreement, dated September 4, 2002, between Associated Materials Holdings Inc. and Michael J. Caporale, Jr. 10.19* Employment Agreement, dated as of August 21, 2002, between the Company and Kenneth L. Bloom. 10.20* Employment Agreement, dated as of August 21, 2002, between the Company and Robert M. Franco. 12.1* Statement of Computation of Ratio of Earnings to Fixed Charges.
II-3
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 21.1* Subsidiaries of the Company. 23.1* Consent of Ernst & Young LLP, Independent Auditors. 23.2* Consent of White & Case LLP (included in Exhibit 5.1). 24.1* Power of Attorney (included on signature page to Registration Statement). 25.1* Statement of Eligibility of Trustee. 99.1* Form of Letter of Transmittal. 99.2* Form of Notice of Guaranteed Delivery. 99.3* Consent from Pure Strategy.
- --------------- * Previously filed. ** Filed herewith. + Certain portions of this exhibit have been omitted pursuant to a request for confidential treatment of information in accordance with Rule 406 of the Securities Act. ITEM 22. UNDERTAKINGS The undersigned Registrant hereby undertakes: (a) To respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. (b) To supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. (c) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (d) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunder duly authorized, in the City of Cuyahoga Falls, State of Ohio on October 16, 2002. ASSOCIATED MATERIALS INCORPORATED By: /s/ D. KEITH LAVANWAY ------------------------------------ Name: D. Keith LaVanway Title: Vice President -- Chief Financial Officer, Treasurer and Secretary Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons, in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- * Chairman of the Board October 16, 2002 - ------------------------------------------------ Ira D. Kleinman * President, Chief Executive October 16, 2002 - ------------------------------------------------ Officer and Director Michael J. Caporale, Jr. (Principal Executive Officer) * Vice President -- Chief October 16, 2002 - ------------------------------------------------ Financial Officer, Treasurer D. Keith LaVanway and Secretary (Principal Financial Officer and Principal Accounting Officer) * Director October 16, 2002 - ------------------------------------------------ Thomas Arenz * Director October 16, 2002 - ------------------------------------------------ Jonathan Angrist *By: /s/ D. KEITH LAVANWAY October 16, 2002 ------------------------------------------------ D. Keith LaVanway Attorney-in-fact
II-5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunder duly authorized, in the City of Cuyahoga Falls, State of Ohio on October 16, 2002. ALSIDE, INC. By: /s/ D. KEITH LAVANWAY ------------------------------------ Name: D. Keith LaVanway Title: Vice President, Treasurer and Secretary Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons, in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- * President and Director October 16, 2002 - ------------------------------------------------ (Principal Executive Officer) Michael J. Caporale, Jr. * Vice President, Treasurer October 16, 2002 - ------------------------------------------------ Secretary and Director D. Keith LaVanway (Principal Financial Officer and Principal Accounting Officer) *By: /s/ D. KEITH LAVANWAY ------------------------------------------ D. Keith LaVanway Attorney-in-fact
II-6 EXHIBITS INDEX
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 2.1* Agreement and Plan of Merger, dated as of March 16, 2002, by and among Associated Materials Holdings Inc. (formerly known as Harvest/AMI Holdings Inc.), Simon Acquisition Corp. and the Company (incorporated by reference to Exhibit 99(d)(1) of Schedule TO filed by Associated Materials Holdings, Inc. and certain affiliates, File No. 005-53705, filed on March 22, 2002). 3.1* Amended and Restated Certificate of Incorporation of the Company. 3.2* Amended and Restated By-Laws of the Company. 3.3* Certificate of Incorporation of Alside, Inc. 3.4* Amended and Restated Bylaws of Alside, Inc. 4.1* Registration Rights Agreement, dated as of April 23, 2002, by and among the Company, AMI Management Company, Credit Suisse First Boston Corporation, UBS Warburg LLC and CIBC World Markets Corp. 4.2* Indenture governing the Company's 9 3/4% Senior Subordinated Notes Due 2012, dated as of April 23, 2002, by and among the Company, AMI Management Company and Wilmington Trust Company. 4.3* Supplemental Indenture governing the Company's 9 3/4% Senior Subordinated Notes Due 2012, dated as of May 10, 2002 by and among the Company, AMI Management Company, Alside, Inc. and Wilmington Trust Company. 4.4* Form of the Company's 9 3/4% Senior Subordinated Note due 2012. 4.5* Form of Indenture governing the Company's 9 1/4% Senior Subordinated Notes due 2008, between the Company and The Bank of New York Trust Company of Florida, N.A. (as successor to U.S. Trust Company of Texas, N.A.) (incorporated by reference to Exhibit 4.1 of the Company's Registration Statement on Form S-1/A, File No. 3333-42067, filed on January 30, 1998). 4.6* First Supplemental Indenture governing the Company's 9 1/4% Senior Subordinated Notes due 2008, dated as of April 4, 2002, by and among the Company and The Bank of New York Trust Company of Florida, N.A (as successor to U.S. Trust Company of Texas, N.A.). 4.7* Form of 9 1/4% Senior Subordinated Note due 2008 (incorporated by reference to Exhibit A of Exhibit 4.1 of the Company's Registration Statement on Form S-1/A, File No. 333-42067, filed on January 30, 1998). 5.1* Legal Opinion of White & Case LLP as to the legality of the securities being issued. 10.1* Credit Agreement, dated as of April 19, 2002, by and among the Company, Associated Materials Holdings Inc., the various financial institutions and other Persons from time to time parties thereto, UBS AG, Stamford Branch, as administrative agent, Credit Suisse First Boston, Cayman Islands Branch, as syndication agent, CIBC World Markets Corp., as documentation agent, and UBS Warburg LLC and Credit Suisse First Boston Corporation, as joint lead arrangers (the "Credit Agreement"). 10.2* Borrower Security and Pledge Agreement of the Company, dated as of April 19, 2002, by the Company, in favor of UBS AG, Stamford Branch, as administrative agent. 10.3* Form of Subsidiary Security and Pledge Agreement, by each subsidiary of the Company from time to time party thereto in favor of UBS AG, Stamford Branch, as administrative agent, on behalf of the Secured Parties (as defined in the Credit Agreement). 10.4* Form of Subsidiary Guaranty, by each subsidiary of the Company from time to time party thereto in favor of UBS AG, Stamford Branch, as administrative agent, on behalf of the Secured Parties (as defined in the Credit Agreement). 10.5* Assumption Agreement, dated as of April 19, 2002, by and among the Company and AMI Management Company, as guarantors. 10.6* Agreement of Sale, dated as of January 30, 1984, between USX Corporation (formerly United States Steel Corporation) ("USX") and the Company (incorporated by reference to Exhibit 10.1 of the Company's Registration Statement on Form S-1, File No. 33-64788).
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 10.7* Amendment Agreement, dated as of February 29, 1984, between USX and the Company (incorporated by reference to Exhibit 10.2 of the Company's Registration Statement on Form S-1, File No. 33-64788). 10.8* Form of Indemnification Agreement between the Company and each of the directors and executive officers of the Company (incorporated by reference to Exhibit 10.14 to the Company's Registration Statement on Form S-1, File No. 33-84110). 10.9* Incentive Bonus Plan of the Company (incorporated by reference to Exhibit 10.10 of the Company's Annual Report on Form 10-K filed for December 31, 2000). 10.10* Severance Agreement, dated December 27, 2001, between the Company and Robert F. Hogan, Jr. (incorporated by reference to Exhibit 10.13 of the Company's Annual Report on Form 10-K filed for December 31, 2001). 10.11* Management Agreement, dated as of April 19, 2002, by and between Harvest Partners, Inc. and the Company. 10.12* Asset Purchase Agreement, dated as of June 24, 2002, between the Company and AmerCable Incorporated. 10.13* Associated Materials Holdings Inc. 2002 Stock Option Plan. 10.14* Employment Agreement, dated as of July 1, 2002, between the Company and Michael Caporale, Jr. 10.15* Employment Agreement, dated as of August 21, 2002, between the Company and D. Keith LaVanway. 10.16** Agreement, dated as of January 1, 1998, between Shintech Incorporated and the Alside division of the Company.+ 10.17* Associated Materials Holdings Inc. Stock Option Award Agreement, dated September 4, 2002, between Associated Materials Holdings Inc. and Michael J. Caporale, Jr. 10.18* Associated Materials Holdings Inc. Stock Option Award Agreement, dated September 4, 2002, between Associated Materials Holdings Inc. and Michael J. Caporale, Jr. 10.19* Employment Agreement, dated as of August 21, 2002, between the Company and Kenneth L. Bloom. 10.20* Employment Agreement, dated as of August 21, 2002, between the Company and Robert M. Franco. 12.1* Statement of Computation of Ratio of Earnings to Fixed Charges. 21.1* Subsidiaries of the Company. 23.1* Consent of Ernst & Young LLP, Independent Auditors. 23.2* Consent of White & Case LLP (included in Exhibit 5.1). 24.1* Power of Attorney (included on signature page to Registration Statement). 25.1* Statement of Eligibility of Trustee. 99.1* Form of Letter of Transmittal. 99.2* Form of Notice of Guaranteed Delivery. 99.3* Consent from Pure Strategy
- --------------- * Previously filed. ** Filed herewith. + Certain provisions of this exhibit have been omitted pursuant to a request for confidential treatment of information in accordance with Rule 406 of the Securities Act. EX-10.16 3 y61690a3exv10w16.txt AGREEMENT BETWEEN SHINTECH AND ALSIDE Confidential Treatment Requested by EXHIBIT 10.16 Associated Materials Incorporated AGREEMENT This Agreement, which together with the Land Sale Contract described in paragraph 1 below, represents the entire agreement of the parties hereto with respect to the subject matter hereof, is between Shintech Incorporated ("Seller") and Alside Division of Associated Materials Incorporated ("Buyer"). The parties hereto agree as follows: 1. Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, approximately 20 acres of land outlined on Exhibit "A" at Seller's plant site in Freeport, Texas, at a selling price of $[ ]* per acre. Such sale is contingent upon, and Buyer agrees to use said land for, the construction of an extrusion facility to be operated by Buyer. Seller and Buyer agree to enter into a Land Sale Contract separate from this Agreement to consummate this part of the transaction, which will contain the foregoing terms and such other terms as may be mutually agreeable to Seller and Buyer. The transfer of the land to Buyer shall be completed within 60 days from the date of this Agreement. Buyer estimates that the construction of the extrusion facility will be completed and ready to commence production by December 31, 1998. 2. Seller agrees to grant Buyer an appropriate right-of-way easement to obtain access to Highway 332 and to work with Buyer to obtain a right-of-way from Hoffman LaRoche, Dow Chemical, and, perhaps, others for a rail spur from the existing Union Pacific line. If Buyer is unable to obtain an acceptable right-of-way for a rail spur from such companies, Seller will use best reasonable efforts to locate another 20-acre site with rail access adjacent to or nearby Seller's plant site for Buyer's use, in which event Buyer will construct its plant on such substitute site. In the event that Seller is not able to locate such substitute site, Buyer and Seller acknowledge this Agreement shall become null. 3. Seller will sell and deliver to Buyer, and Buyer will purchase from Seller, for Buyer's own use and consumption at Buyer's West Salem, OH, Ennis, TX, and Freeport, TX plants on the terms and conditions stated herein, Seller's current Suspension Type PVC SE95OEG or Type SE950W resin ("resin"). 4. Buyer will provide Seller, thirty (30) days prior to each calendar quarter, its best estimate of the amount of resin to be purchased for each plant during the ensuing quarter. 5. Delivery of resin to Buyer's West Salem, OH and Ennis, TX plants shall be by rail car unless otherwise agreed to by the parties. Delivery of resin to Buyer's Freeport, TX plant shall be by hopper trailer, unless otherwise agreed to by the parties. Title and risk of loss shall pass from Seller to Buyer as the rail car or hopper trailer containing the resin arrives at Buyer's plants. 6. During the term of this Agreement and subject to force majeure, Buyer agrees to buy and Seller agrees to sell approximately sixty percent (60%) of Buyer's entire resin requirements in each of 1998 and 1999, and approximately seventy percent (70%) of Buyer's entire resin requirements thereafter, which - -------- * The redacted portion of this document has been omitted pursuant to a request for confidential treatment and such redacted portion has been filed separately with the Securities and Exchange Commission. Confidential Treatment Requested by Associated Materials Incorporated entire resin requirements, per year are estimated to be 114 million pounds in 1998, 129 million pounds in 1999, 143 million pounds in 2000, and 157 million pounds thereafter. Seller shall ship and Buyer shall take resin in reasonably uniform monthly quantities, acknowledging the seasonality of Buyer's production requirements. Buyer and Seller agree that Seller will provide approximately all of Buyer's resin requirements at Buyer's Freeport, TX, and West Salem, OH plants. Notwithstanding the foregoing, (i) upon Buyer giving Seller [ ]* calendar days prior notice, Seller agrees to supply Buyer up to [ ]* pounds per month in excess of the monthly quantities stipulated above, and (ii) to the extent that Buyer's purchases are less than [ ]* of Seller's obligation to supply based on the above estimates for three consecutive months, Seller shall have the right to reduce Seller obligation to supply to [ ]*% of the actual average monthly usage for the previous [ ]* months. 7. Pricing for the sale and purchase of the resin shall be as follows a. Every month during the term of this Agreement, Seller and Buyer shall discuss and determine in good faith the Base Price ("BP") on a mutually acceptable basis for such month, taking into account changes, if any, in the resin market conditions for such month. BP does not reflect any contractual discounts, allowances, or other price adjustments, but does include applicable taxes. [ ]* b. To obtain the monthly selling price per pound for Buyer's Freeport plant ("MSP"), the following adjustments will be made to the BP; (all numbers are in cents per pound) i) If the BP is less than [ ]*, there is no adjustment ii) If the BP is [ ]* or greater, but less than [ ]*, the adjustment is minus [ ]*. iii) If the BP is [ ]* or greater, but less than [ ]*, the adjustment is minus [ ]*. iv) If the BP is [ ]* or greater, but less than [ ]*, the adjustment is minus [ ]*. v) If the BP is [ ]* or greater, but less than [ ]*, the adjustment is minus [ ]*. vi) If the BP is [ ]* or greater, the adjustment is minus [ ]*. c. Except as provided in subsection (d) below, all pricing is F.O.B. point of destination. d. The following freight charges will be added to the MSP to arrive at the monthly selling price for deliveries to Ennis, TX and West Salem, OH. - -------- * The redacted portion of this document has been omitted pursuant to a request for confidential treatment and such redacted portion has been filed separately with the Securities and Exchange Commission. Confidential Treatment Requested by Associated Materials Incorporated [ ]* The freight charges may be adjusted on an annual contract basis based upon changes in tariff rates. e. For all rail shipments to Ennis, an additional discount of [ ]* shall be allowed. f. For each calendar year during the term of this Agreement, if Buyer purchases the following volumes from Seller: o [ ]* million in 1998; o [ ]* million in 1999. o [ ]* million in 2000; and o [ ]* million thereafter, an additional discount of [ ]* will be allowed on all resin purchased by Buyer from Seller hereunder ("End- of-Year Discount") 8. Payment terms for resin purchases shall be net sixty (60) days from date of shipment from Seller's Freeport plant. 9. In the event that in any month during this Agreement Buyer receives a commercially reasonable quotation from Occidental Chemical Corporation or Borden Plastics and Chemicals for shipment that month to Ennis, West Salem or Freeport of like quantities of a product of equal quality to the same destination(s) upon substantially the same payment and shipment terms as herein provided that is lower than the price determined pursuant to paragraph 7 hereof (net of all discounts contemplated hereunder) for such month, Buyer shall give Seller an opportunity to review the pricing hereunder for such destination(s) for the particular month. Seller agrees to give every reasonable consideration to such lower price offer for such month, based upon Seller's knowledge of the then current market conditions. If Seller meets such lower price, no further discounts shall apply to such volume. If Seller elects not to meet such lower price, whether or not such lower price offer was commercially reasonable, Seller and Buyer shall be relieved from their respective obligations under paragraph 6 above for such destinations only for the particular month. However, for End-of-Year Discount calculation purposes, the amount purchased at such lower price will count toward the volume described in paragraph 7 above, whether or not Seller elects to meet such lower price. Buyer agrees to provide Seller with a copy of the quotation confirming such lower price or other documentation of such lower price acceptable to Seller. 10. Seller will give Buyer [ ]* at the then-existing BP from the announced effective date of any price increase. - ------------ * The redacted portion of this document has been omitted pursuant to a request for confidential treatment and such redacted portion has been filed separately with the Securities and Exchange Commission. Confidential Treatment Requested by Associated Materials Incorporated 11. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, SELLER MAKES NO OTHER WARRANTIES WITH RESPECT TO RESIN SOLD PURSUANT TO THIS AGREEMENT. THE WARRANTIES SET OUT IN THIS AGREEMENT ARE MADE EXPRESSLY IN LIEU OF AND EXCLUDE ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES. 12. Buyer agrees to indemnify Seller from liability for damage to persons or property resulting from the use of the resin in manufacturing processes, or in combination with other substances, or otherwise. Buyer represents to Seller that it has used its own independent skill and expertise in connection with the selection and use of the resin purchased pursuant to this Agreement, and that it possesses skill and expertise in the handling, storage, transportation, treatment, use and disposal of the resin. 13. Neither Seller nor Buyer shall be liable hereunder for special, incidental, indirect, punitive, or consequential damages. 14. Except as may be compelled by a court or governmental agency of competent jurisdiction, or when written approval is given by the other party, neither party hereto will disclose the contents of this Agreement to any third party with the exception of the portions of this Agreement. 15. This Agreement will commence on January 1, 1998, for all orders placed after December 31, 1997, and shall continue until December 31, 2002, and from year to year thereafter unless either party shall give written notice of termination at least ninety (90) days prior to the end of the expiring contract year Agreed and Accepted: Agreed and Accepted: SHINTECH INCORPORATED ALSIDE DIVISION OF ASSOCIATED MATERIALS INCORPORATED By: /S/ RICHARD MASON /S/ JAMES R. BUSSMAN -------------------------------- ------------------------------------ Richard Mason James R. Bussman Secretary President -----END PRIVACY-ENHANCED MESSAGE-----