1
EXHIBIT 1
2,000,000 Shares of Common Stock
NORTEK, INC.
UNDERWRITING AGREEMENT
May __, 1998
BEAR, XXXXXXX & CO. INC.
PAINEWEBBER INCORPORATED
XXXXXXXXXXX XXXXXXX SECURITIES, INC.
As Representatives (the "Representatives")
of the several Underwriters named
in Schedule I attached hereto
c/o BEAR, XXXXXXX & CO. INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Nortek, Inc., a Delaware corporation ("Nortek" or the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the several underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 2,000,000 shares (the "Firm Shares") of its common stock, par value
$1.00 per share (the "Common Stock"). The Company also proposes to sell to the
Underwriters for the sole purpose of covering over-allotments in connection with
the sale of the Firm Shares, at the option of the Underwriters, an aggregate of
up to 300,000 additional shares of Common Stock ("Additional Shares"). The Firm
Shares and any Additional Shares purchased by the Underwriters are herein
referred to as the "Shares." The Shares are more fully described in the
Registration Statement referred to below.
On March 9, 1998, the Company, through a wholly-owned subsidiary
("Acquisition Sub"), entered into a Stock Purchase and Sale Agreement (the
"Purchase Agreement") with Xxxxxxxx Y&N Holdings, Inc., pursuant to which
Acquisition Sub agreed to purchase all of the outstanding capital stock of
NuTone, Inc., a Delaware corporation ("NuTone"), for an aggregate purchase price
of $242,500,000, subject to
2
certain adjustments, plus the assumption of operating liabilities including
certain pension and health benefits.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to, and agrees with, the several Underwriters
that:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement, and ____
amendments thereto, on Form S-3 (No. 333-_____), for the registration of the
Shares under the Securities Act of 1933, as amended (the "Act"). Such
registration statement, including the prospectus, financial statements,
schedules, exhibits and all other documents filed as a part thereof, as amended
to the time of effectiveness of the registration statement, including any
information deemed to be a part thereof as of the time of effectiveness pursuant
to paragraph (b) of Rule 430A of the rules and regulations of the Commission
under the Act (the "Regulations"), is herein called the "Registration
Statement," and the prospectus, in the form first filed with the Commission
pursuant to Rule 424(b) of the Regulations or filed as part of the Registration
Statement at the time of effectiveness if no Rule 424(b) filing is required, is
herein called the "Prospectus." The term "preliminary prospectus" as used herein
means a preliminary prospectus as described in Rule 430 of the Regulations.
(b) At the time the Registration Statement is first filed
with the Commission, at the time any amendment to the Registration Statement is
filed with the Commission, at the time of the effectiveness of the Registration
Statement or the effectiveness of any post-effective amendment to the
Registration Statement, at the time the Prospectus is first filed with the
Commission pursuant to Rule 424(b) of the Regulations, at the time any
supplement to or amendment of the Prospectus is filed with the Commission and at
the Closing Date and the Additional Closing Date, if any (as hereinafter
respectively defined), the Registration Statement and the Prospectus and any
amendments thereof and supplements thereto complied or will comply in all
material respects with the applicable provisions of the Act and the Regulations
and did not, do not and will not contain an untrue statement of a material fact
and did not, do not and will not omit to state any material fact required to be
stated therein or necessary in order to make the statements therein (i) in the
case of the Registration Statement, not misleading and (ii) in the case of the
Prospectus, in light of the circumstances under which they were made, not
misleading. When any related preliminary prospectus was first filed with the
Commission (whether filed as part of the registration statement for the
registration of the Shares or any amendment thereto or pursuant to Rule 424(a)
of the Regulations) and when any amendment thereof or supplement thereto was
first filed with the Commission, such preliminary prospectus and any amendments
thereof and supplements thereto complied when so filed in all material respects
with the applicable provisions of the Act and the Regulations and did not
contain an untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary in order to make the
-2-
3
statements therein, in light of the circumstances under which they were made,
not misleading. No representation and warranty is made in this subsection (b),
however, with respect to any information contained in or omitted from the
Registration Statement or the Prospectus or any related preliminary prospectus
or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through the Representatives expressly for use in connection
with the preparation thereof. The Company acknowledges that the statements set
forth in the last paragraph of the cover page of the Prospectus, in the
paragraph on the inside front cover page of the Prospectus relating to possible
stabilization transactions, in the table listing Underwriters under the caption
"Underwriting" in the Prospectus and in the second and sixth paragraphs under
the caption "Underwriting" in the Prospectus constitute the only information
furnished in writing by or on behalf of any Underwriter expressly for use in any
registration statement relating to the Shares as originally filed, in the
Registration Statement or in any amendment thereof, any related preliminary
prospectus or the Prospectus or in any amendment thereof or supplement thereto,
as the case may be.
(c) Neither the Commission nor the "Blue Sky" or
securities authority of any jurisdiction has issued an order (a "Stop Order")
suspending the effectiveness of the Registration Statement, preventing or
suspending the use of any preliminary prospectus, the Prospectus, the
Registration Statement, or any amendment or supplement thereto, refusing to
permit the effectiveness of the Registration Statement, or suspending the
registration or qualification of the Firm Shares or the Additional Shares, nor,
to the best knowledge of the Company, has any of such authorities instituted or
threatened to institute any proceedings with respect to a Stop Order.
(d) Xxxxxx Xxxxxxxx LLP, who have certified the financial
statements of the Company and supporting schedules, if any, included in or
incorporated by reference in the Registration Statement and whose reports are
filed with the Commission as part of the Registration Statement, are independent
public accountants with regard to the Company and its subsidiaries as required
by the Act and the Regulations. Coopers & Xxxxxxx L.L.P., who have certified the
financial statements and supporting schedules, if any, included in or
incorporated by reference in the Registration Statement in respect of NuTone and
its subsidiary, are independent public accountants with regard to NuTone and its
subsidiary as required by the Act and the Regulations. Xxxxx Xxxxxxxx LLP, which
has certified certain financial statements and supporting schedules included in
or incorporated by reference in the Registration Statement in respect of PlyGem
Industries Inc., a Delaware corporation ("PlyGem"), and its subsidiaries, are
independent public accountants with regard to PlyGem and its subsidiaries as
required by the Act and the Regulations.
(e) Subsequent to the respective dates as of which
information is given in the Registration Statement (and, as to the
representation made at the Closing Date and
-3-
4
the Additional Closing Date, the Prospectus), except as set forth in the
Registration Statement (and, as to the representation made at the Closing Date
and the Additional Closing Date, the Prospectus) there has been no material
adverse change, or any fact known to the Company which could reasonably be
expected to result in a material adverse change, in the business, prospects,
properties, assets, liabilities (contingent or otherwise), earnings, operations,
condition (financial or otherwise) or results of operations of the Company and
its subsidiaries taken as a whole (a "Material Adverse Effect"), whether or not
arising from transactions in the ordinary course of business or any loss of, or
damage to, properties (whether or not insured) which could reasonably be
expected to have a Material Adverse Effect. Except as described on Schedule
1(e), since the date of the latest balance sheet presented in the Registration
Statement (and, as to the representation made at the Closing Date and the
Additional Closing Date, the Prospectus) or in any reports filed by the Company
with the Commission pursuant to the Exchange Act or in accordance with any plan
contained in any such report, except as expressly disclosed in the Registration
Statement (and, as to the representation made at the Closing Date and the
Additional Closing Date, the Prospectus), neither the Company nor any of its
subsidiaries has (i) incurred or undertaken any liabilities or obligations,
direct or contingent, that are material to the Company and its subsidiaries
taken as a whole, (ii) entered into any material transaction not in the ordinary
course of business and consistent with past practice or (iii) declared or paid
any dividend or made any distribution on any shares of its capital stock or
redeemed, purchased or otherwise acquired or agreed to redeem, purchase or
otherwise acquire any shares of its capital stock. Except as described on
Schedule 1(e), since the date of the last balance sheet presented in the
Registration Statement (and, as to the representation made at the Closing Date
and the Additional Closing Date, the Prospectus) or in any reports filed by the
Company with the Commission pursuant to the Exchange Act or in accordance with
any plan contained in any such report, there has not been any material change in
the long-term debt of the Company or any material change in the capital stock of
the Company.
(f) The Company has the requisite corporate power and the
authority to (i) enter into this Agreement and, (ii) perform its obligations
hereunder and to issue, sell and deliver the Shares to be sold by it hereunder.
This Agreement and the transactions contemplated herein and therein have been
duly and validly authorized by the Company and this Agreement has been duly and
validly executed and delivered by the Company and is a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except (i) as the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting the enforcement of creditors rights generally and
by general equitable principles and (ii) to the extent that rights to indemnity
and contribution hereunder may be limited by federal or state securities laws or
the public policy underlying such laws.
-4-
5
(g) The execution, delivery and performance of this
Agreement by the Company and the issuance, sale and delivery of Firm Shares and
the Additional Shares by the Company do not and will not (i) conflict with or
result in a breach of any of the terms and provisions of, or constitute a
default (or an event which with notice or lapse of time, or both, would
constitute a default), result in a material modification of the effect of, give
rise to any right to accelerate the maturity or require the prepayment of any
obligation of the Company or any of its subsidiaries or require any consent, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or its subsidiaries, pursuant to the terms of
any agreement, instrument, franchise, license or other document to which the
Company or any of its subsidiaries is a party or by which any of the Company or
any of its subsidiaries or their respective properties or assets may be bound,
except for such conflicts, breaches, defaults, liens, charges or encumbrances
which would not individually or in the aggregate have a Material Adverse Effect
or prohibit or restrict the consummation of the transactions contemplated
hereby; (ii) violate or conflict with any provision of the certificate of
incorporation or by-laws (or equivalent instruments) of the Company or any of
its subsidiaries or any judgment, decree, order, statute, rule or regulation of
any court or any public, governmental or regulatory agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
respective properties or assets except for such violations or conflicts which
would not individually or in the aggregate have a Material Adverse Effect or
prohibit or restrict the consummation of the transactions contemplated hereby;
or (iii) result in the termination or revocation of the Company's or any of its
subsidiaries' consents, approvals, authorizations, orders, registrations,
qualifications, licenses or permits of or from any public, regulatory or
governmental agency or body to own, lease or operate its properties or conduct
its business as now being conducted as described in the Registration Statement,
except where such termination or revocation would not have a Material Adverse
Effect.
(h) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any court or
any public, governmental or regulatory agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their respective properties or
assets is required for (i) the valid execution, delivery and performance of this
Agreement and (ii) the issuance, sale and delivery of the Shares to be issued,
sold and delivered by the Company hereunder, except such consents, approvals,
authorizations, orders, registrations, filings, qualifications, licenses and
permits as may be required under the Act and the Securities Exchange Act of
1934, as amended (the "Exchange Act") and state securities or "Blue Sky" laws in
connection with the purchase and distribution of the Shares by the Underwriters.
(i) All of the outstanding shares of capital stock of the
Company are duly and validly authorized and issued, fully paid and
nonassessable, were issued in compliance with all applicable federal and state
securities laws and were not issued in
-5-
6
violation of or subject to any preemptive rights, or, except as disclosed in the
Registration Statement, co-sale rights, registration rights, repurchase rights,
right of first refusal or any other similar right. Those of the Shares to be
sold by the Company to the Underwriters hereunder have been duly and validly
authorized and when delivered and sold in accordance with this Agreement, will
be duly and validly authorized, issued and outstanding, fully paid and
nonassessable, will not have been issued in violation of or subject to any
preemptive rights, co-sale rights, transfer restrictions, rights of first
refusal, repurchase rights or any similar rights and will be free and clear of
any pledges, liens, security interests, charges, claims or encumbrances of any
kind. The Company had, at December 31, 1997, a duly authorized and outstanding
capitalization as set forth under the caption "Capitalization" in the
Registration Statement and as shall be set forth in the Prospectus. The Common
Stock conforms in all material respects to the description thereof contained in
the Registration Statement and as shall be set forth in the Prospectus. There is
no commitment, plan or arrangement to issue, and no outstanding option, warrant
or other right which requires, permits or provides for the issuance,
subscription or purchase of, any share of capital stock of the Company or any
security or other instrument which by its terms is convertible into, exercisable
for, or exchangeable for capital stock of the Company, except pursuant to the
Company's stock option plans and options issued thereunder or as accurately
described in the Registration Statement. Except as accurately described in the
Registration Statement there is outstanding no security or other instrument
which by its terms is convertible into or exchangeable for capital stock of the
Company other than options granted under the Company's stock option plans.
Except as described in the Registration Statement, there are no restrictions on
the voting or transfer of any shares of capital stock of the Company. Except as
described in the Registration Statement (including the documents incorporated by
reference therein) and except with respect to the interest held by the minority
stockholder of Xx Xxxxxx International, there are no outstanding subscriptions,
rights, warrants, calls or options to acquire, or instruments convertible into
or exchangeable for, or agreements or understandings with respect to the
issuance of, any shares of capital stock of or other equity or other ownership
interest in the Company's subsidiaries other than those owned or held by the
Company or another subsidiary of the Company.
(j) The Company and each of its subsidiaries has been
duly organized and is validly existing as a corporation or partnership, as the
case may be, in good standing under the laws of its jurisdiction of
incorporation. The Company and each of its subsidiaries is duly qualified and in
good standing as a foreign corporation or partnership, as the case may be, in
each jurisdiction in which the character or location of its properties (owned,
leased or licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so qualified or in good
standing which would not, individually or the aggregate, have a Material Adverse
Effect, and neither the Company nor any of its subsidiaries has received any
claim or notice from any official in any jurisdiction that it is required to be
qualified or licensed to do business in
-6-
7
any jurisdiction in which it is not so qualified or licensed. The Company and
each of its subsidiaries has all requisite power and authority, and all
necessary consents, approvals, authorizations, orders, registrations,
qualifications, licenses and permits of and from all public, regulatory or
governmental agencies and bodies ("Authorizations"), to own, lease and operate
its properties and conduct its business as now being conducted and as described
in the Registration Statement and as shall be described in the Prospectus,
except as described in the Registration Statement and as shall be described in
the Prospectus or where the failure to have such Authorizations would not
individually or in the aggregate have a Material Adverse Effect, and the Company
has not received any notice of any proceedings relating to the revocation or
modification of any thereof except revocations or modifications that would not
have a Material Adverse Effect, nor is the Company aware of any basis therefor,
and no such consent, approval, authorization, order, registration,
qualification, franchise, license or permit contains a materially burdensome
restriction that is not adequately and accurately disclosed in the Prospectus.
(k) As of December 31, 1997 and as of the date hereof,
all of the outstanding shares of capital stock of each Significant Subsidiary
(as defined in Rule 1-02 of Regulation S-X promulgated by the Commission) have
been duly and validly issued, are fully paid and non-assessable and were not
issued in violation of preemptive rights, repurchase rights or rights of first
refusal and, except as described in the Registration Statement and as shall be
described in the Prospectus, are owned directly or indirectly by the Company,
free and clear of any lien, pledge, encumbrance, claim, security interest,
restriction on transfer, stockholders' agreement, voting trust or other defect
of title whatsoever. The Company owns no controlling interest in any other
corporation, partnership or other entity and does not directly or indirectly own
any shares of stock or any other securities of any corporation or have any
equity interest in any firm, partnership, association or other entity, other
than (i) investments in subsidiaries of the Company, (ii) minority investments
in marketable securities that may be made in the ordinary course of business as
a part of its investment of excess cash assets (iii) a 40% interest held by the
Company in Spalding Composites, Inc. and (iv) a minority investment in Realco,
Inc.
(l) Except as described in the Registration Statement and
as shall be described in the Prospectus, there is no action, suit, investigation
or proceeding, governmental or otherwise, to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of its
subsidiaries is subject or which is pending or, to the best knowledge of the
Company, threatened against the Company or any of its subsidiaries which (i) if
adversely decided or concluded, could reasonably be expected to have a Material
Adverse Effect (ii) is required to be disclosed in the Registration Statement,
(iii) seeks to restrain, enjoin, prevent the consummation of, or otherwise
challenge the issuance of, the Shares or the execution and delivery of this
Agreement or any of the other transactions contemplated hereby, or questions the
legality or validity of any such transactions, or (iv) seeks to recover damages
or obtain other relief
-7-
8
in connection with any of such transactions and has a reasonable probability of
success on the merits.
(m) Except as provided for in this Agreement, the Company
has not taken and will not take, directly or indirectly, any action designed to
cause or result in, or which constitutes or which might reasonably be expected
to constitute, the stabilization or manipulation of the price of any security of
the Company in order to facilitate the sale or resale of the Shares.
(n) The consolidated audited financial statements of the
Company and its subsidiaries and NuTone and its subsidiary and the consolidated
audited and unaudited financial statements of Ply Gem Industries, Inc. ("Ply
Gem") and subsidiaries, including the notes thereto, and supporting schedules
included in or incorporated by reference in the Registration Statement and as
will be set forth in the Prospectus comply as to form in all material respects
with the requirements applicable to an Annual Report on Form 10-K or a Current
Report on Form 8-K, as the case may be), under the Exchange Act and present
fairly the financial condition, results of operations, stockholders' investment
and cash flows and other information purported to be shown therein of the
Company and its subsidiaries and NuTone and its subsidiary at the dates and for
the periods indicated and the supporting schedules included in or incorporated
by reference in the Registration Statement present fairly in all material
respects the information required to be stated therein. Except as discussed
therein, such consolidated financial statements including the notes thereto have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, and in the case of the
consolidated financial statements of each of the Company and its subsidiaries,
Ply Gem and its subsidiaries and NuTone and its subsidiary, are in accordance in
all material respects with the books and records of the Company and its
subsidiaries, Ply Gem and its subsidiaries and NuTone and its subsidiary,
respectively. No other financial statements are required by Form S-3 other than
those included in or incorporated by reference in the Registration Statement and
as will be set forth or incorporated by reference in the Prospectus or otherwise
to be included in the Registration Statement or the Prospectus. The historical
financial data set forth in the Registration Statement and as will be set forth
in the Prospectus under the captions "Prospectus Summary -- The Company",
"-Recent Developments", "Summary Historical and Pro Forma Financial
Information", "Capitalization", "Selected Historical Consolidated Financial
Data" and "Management's Discussion and Analysis of Financial Condition and
Results of Operations" (i) are in accordance with the books and records of the
Company and its subsidiaries, Ply Gem and its subsidiaries and NuTone and its
subsidiary, as the case may be; (ii) fairly present, in all material respects,
on the basis stated in the Registration Statement and as will be stated in the
Prospectus, the information set forth therein and (iii) have been compiled on a
basis consistent with that of the audited financial statements of the Company
and its subsidiaries and NuTone and its subsidiary, and the audited and
unaudited financial statements of Ply
-8-
9
Gem and its subsidiaries, as the case may be, included in the Registration
Statement and as will be set forth in the Prospectus. All other historical
financial information and historical statistical data of the Company and its
subsidiaries, Ply Gem and its subsidiaries and NuTone and its subsidiary set
forth in the Registration Statement and as will be set forth in the Prospectus
are, in all material respects, accurately presented and have been prepared on an
accounting basis consistent with the financial statements of the Company and its
subsidiaries, Ply Gem and its subsidiaries and NuTone and its subsidiary, as the
case may be, included in or incorporated by reference in Registration Statement
and as will be included in the Prospectus.
(o) The unaudited pro forma and pro forma adjusted
financial data included in the Registration Statement and as will be set forth
in the Prospectus (i) has been prepared on a basis consistent with the
historical financial statements of the Company and its subsidiaries and NuTone
and its subsidiary (except for the pro forma and additional adjustments set
forth therein), (ii) gives effect to assumptions used in the preparation thereof
that are reasonable and made in good faith, (iii) presents fairly in all
material respects the information set forth using adjustments which are
appropriate to give effect to the proposed transactions referred to therein,
(iv) has been correctly compiled based on the proper application of the pro
forma and pro forma adjusted adjustments to the historical financial information
set forth therein and (v) except for the pro forma adjusted financial data,
complies as to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X. The pro forma adjusted
consolidated financial data reflect adjustments that give effect to events that
are factually supportable.
(p) Each of the Company and each of its subsidiaries has
good and marketable title to all real property and personal property owned by
them which is material to the business of the Company and its subsidiaries, in
each case, subject to no lien, mortgage, pledge, charge or encumbrance of any
kind except (i) those set forth in the Registration Statement, or (ii) those
which are not material in amount and do not adversely affect the use made and
proposed to be made of such property by the Company and its subsidiaries (except
for such uses the failure of which to be made would not reasonably be expected
to have a Material Adverse Effect). Each of the Company and its subsidiaries
holds, its leased properties under valid, subsisting and enforceable leases,
with such exceptions as are not, individually or in the aggregate, material and
do not, individually or in the aggregate, interfere with the use made or
proposed to be made of such properties by the Company or any of its subsidiaries
(except for such uses the failure of which to be made would not reasonably be
expected to have a Material Adverse Effect). Except as disclosed in the
Registration Statement and as will be disclosed in the Prospectus, the Company
and each of its subsidiaries owns or leases all such properties as are necessary
to its operations as now conducted or as proposed to be conducted (except for
such properties the failure to own or lease would not reasonably be expected to
have a Material Adverse Effect).
-9-
10
(q) Neither the Company nor any of its subsidiaries is
subject to registration as an "investment company" or an entity "controlled by"
an "investment company" within the meaning of Investment Company Act of 1940, as
amended, and the rules and regulations promulgated thereunder. Each such person
will conduct its business and financial affairs in such a manner as to ensure
that it will not become an "investment company" or an entity "controlled" by an
"investment company". Neither the Company nor any of its subsidiaries is subject
to registration as a "holding company" or a "subsidiary company" of a holding
company or an "affiliate" thereof within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
(r) The Company and each of its subsidiaries have (i)
filed all federal, state and local and foreign tax returns which are required to
be filed through the date hereof, and all such tax returns are true, complete
and accurate in all material respects, or (ii) received valid extensions thereof
and have paid all taxes shown on such returns and all assessments received by
them except where, in the case of state and local and foreign tax returns, the
failure to file in clause (i), or extend the due date of or pay the same in
clause (ii), in the aggregate, could not reasonably be expected to have a
Material Adverse Effect; the Company has no knowledge of any tax deficiency
which has been or might be asserted against the Company or any of its
subsidiaries which could materially and adversely affect the business or
properties of the Company and its subsidiaries taken as a whole; to the
Company's best knowledge, all tax liabilities of Nortek and its subsidiaries are
adequately provided for on the consolidated books of Nortek.
(s) The Company and each of its subsidiaries own or
possess adequate licenses or other rights to use all patents, trademarks,
service marks, trade names, copyrights, technology and know-how necessary to
conduct the business now or proposed to be conducted by the Company and each of
its subsidiaries as described in the Registration Statement and as will be
described in the Prospectus except for those patents, trademarks, service marks,
trade names, copyrights, technology and know-how the failure to own or have the
right to use would not have a Material Adverse Effect and, except as disclosed
in the Registration Statement and as will be disclosed in the Prospectus,
neither the Company nor any of its subsidiaries has received any notice of
infringement of or conflict with (or knows of such infringement of or conflict
with) rights of others with respect to any patents, trademarks, service marks,
trade names, copyrights or know-how except for conflicts which could not be
reasonably expected to have a Material Adverse Effect; and to the best knowledge
of the Company, the Company and each of its subsidiaries do not in the conduct
of their business as now conducted or proposed to be conducted, infringe or
conflict with any such rights of any third party.
(t) There are no contracts, indentures, mortgages, loan
agreements, notes, leases or other agreements or instruments or other documents
(collectively, "Documents") required to be described or referred to in, or filed
with, the Registration
-10-
11
Statement and, in respect of the representation made at the Closing Date and the
Additional Closing Date, the Prospectus, other than those described or referred
to therein or filed as exhibits thereto; all such descriptions are accurate in
all material respects and present fairly the information described therein. All
such Documents to which the Company is a party have been duly authorized,
executed and delivered by the Company, constitute valid and binding agreements
of the Company and are enforceable against the Company in accordance with the
terms thereof, except as the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
by general equitable principles.
(u) There are no outstanding loans, advances (except
normal advances for business expenses in the ordinary course of business), or
guarantees of indebtedness by the Company or any of its subsidiaries to or for
the benefit of any of the officers or directors of the Company or any of its
subsidiaries or any of the members of the families of any of them, except as
adequately disclosed in the Registration Statement and as will be disclosed in
the Prospectus or in any document incorporated by reference therein; all such
descriptions are accurate in all material respects and present fairly the
information required to be described in the Registration Statement and as will
be described in the Prospectus.
(v) Each of the Company and each of its subsidiaries
maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(w) Neither the Company nor any of its subsidiaries is in
violation or breach of, or in default (nor has any event occurred which with
notice, or lapse of time, or both, would constitute a default) in the due
performance or observance of any term, covenant or condition contained in any
contract, agreement, indenture, loan or other agreement, instrument, mortgage,
deed of trust, note, permit, lease, license, arrangement or understanding to
which the Company or any of its subsidiaries is a party or by which the Company,
any of its subsidiaries or any of their respective properties may be bound where
such default, either individually or together with all such other defaults,
could reasonably be expected to have a Material Adverse Effect. Each such
contract, agreement, indenture, instrument, mortgage, deed of trust, note,
permit, lease, license, arrangement and understanding is in full force and
effect and is the legal, valid, and binding obligation
-11-
12
of the Company or its subsidiaries, as the case may be, and, to the Company's
knowledge, the other parties thereto and is enforceable against the Company or
its subsidiaries, as the case may be, and, to the Company's knowledge, against
the other parties thereto in accordance with its terms except for such failures
to be in full force and effect, legal, valid and binding, or enforceable which
would not reasonably be expected to have a Material Adverse Effect. Each of the
Company and each of its subsidiaries enjoys peaceful and undisturbed possession
under all material leases and material licenses under which the Company and its
subsidiaries are operating except for disturbances which would not, individually
or in the aggregate reasonably be expected to have a Material Adverse Effect.
The Company is not, and upon completion of the transactions contemplated hereby
will not be, in violation or breach of, or default with respect to, any term of
its respective certificate of incorporation or bylaws. None of the Company's
subsidiaries is, and upon completion of the transactions contemplated hereby
will be, in material violation or breach of, or in default with respect to, any
term of its respective certificate of incorporate or bylaws. Neither the Company
nor any of its subsidiaries is, and upon completion of the transactions
contemplated hereby neither the Company nor any of its subsidiaries will be, in
violation of, or in default with respect to, any law, rule, regulation, order,
judgment or decree, except such as are described in the Registration Statement
and as will be described in the Prospectus or such as, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
(x) The Company has obtained from each of the Company's
executive officers and directors set forth in Schedule II an enforceable written
agreement (a "LockUp Agreement"), in a form or forms approved by the
Representatives and their counsel, that for a period of 90 days from the date of
the Prospectus, each such holder will not, without the prior written consent of
Bear, Xxxxxxx & Co. Inc., offer, sell, contract to sell, pledge or otherwise
dispose of (other than (i) by gift, will or intestacy, (ii) to a member or
members of his or her immediate family, to a charitable trust or to a trust the
beneficiaries of which are exclusively the undersigned and/or a member or
members of his or her immediate family, or (iii) pursuant to a bona fide pledge;
PROVIDED, HOWEVER, that in any such case it shall be a condition to the transfer
that the transferee or pledgee execute an agreement stating that the transferee
or pledgee is receiving and holding such shares or other securities subject to
the provisions of such written agreement, and there shall be no further transfer
of such shares or other securities except in accordance with such written
agreement), or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act, and the Regulations with respect to, any shares of capital stock
of the Company or any securities convertible into or exercisable or exchangeable
for such capital stock, or publicly announce an intention to effect any such
transaction.
(y) Except as described in the Registration Statement and
as will be described in the Prospectus, (i) no labor dispute with any group of
employees of the
-12-
13
Company and any of its subsidiaries exists or, to the best knowledge of the
Company, is threatened and (ii) the Company is not aware of any labor
disturbance by the employees of any of its significant manufacturers, suppliers,
customers or contractors, that could reasonably be expected in the case of both
(i) and (ii) to have a Material Adverse Effect.
(aa) Except as described in the Registration Statement and
as will be described in the Prospectus, (i) the Company is not a party to or
bound by any stockholders agreements or voting trusts with respect to any
securities of the Company and (ii) there are no contracts, agreements or
understandings between the Company or any of its subsidiaries and any person or
entity granting such person or entity the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company owned or to be owned by such person or entity or to require the Company
to include such securities in the securities registered pursuant to the
Registration Statement.
(bb) Except as disclosed in the Registration Statement and
as will be disclosed in the Prospectus, there has been no storage, generation,
transportation, handling, treatment, disposal, discharge, emission or other
release of any kind of toxic or other wastes or other hazardous substances by,
due to or caused by the Company or any of its subsidiaries (or, to the knowledge
of the Company, any other entity (including any predecessor) for whose acts or
omissions the Company or any of its subsidiaries is or could reasonably be
expected to be liable) upon any of the property now or previously owned or
leased by the Company or any of its subsidiaries, or upon any other property,
which would, under any statute or any ordinance, rule (including rule of common
law), regulation, order, judgment, decree or permit, give rise to any liability,
except for any liability that could not reasonably be expected to have,
singularly or in the aggregate with all such liabilities, a Material Adverse
Effect. Except as disclosed in the Registration Statement and as will be
disclosed in the Prospectus, there has been no disposal, discharge, emission or
other release of any kind onto such property or into the environment surrounding
such property of any toxic or other wastes or other hazardous substances with
respect to which the Company has knowledge, except for any such disposal,
discharge, emission or other release of any kind which could not reasonably be
expected to have, singularly or in the aggregate with all such discharges and
other releases, a Material Adverse Effect. Except as disclosed in the
Registration Statement and as will be disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any federal, state,
provincial, foreign or local law, rule, regulation, code or ordinance relating
to pollution, protection of the environment, the storage, handling,
transportation or disposal of hazardous or toxic wastes or substances or health
and safety, except such violations which would not reasonably be expected to
have, a Material Adverse Effect.
(cc) Neither the Company nor, to its knowledge, any
director, officer, agent, employee or other person associated with or acting on
behalf of the Company has
-13-
14
used any corporate funds for unlawful contributions, gifts, entertainment or
other unlawful expenses relating to political activity, made any unlawful
payment to foreign or domestic government officials or employees or to foreign
or domestic political parties or campaigns from corporate funds, made any bribe,
rebate, payoff, influence payment, kickback, or other unlawful payment or
violated any provision of the Foreign Corrupt Practices Act of 1977.
(dd) Neither the Company nor any of its subsidiaries has
incurred any liability for any fee, commission or other compensation on account
of the employment of a broker or finder (other than the Underwriters) in
connection with the transactions contemplated by the Agreement.
(ee) The Company and each of its subsidiaries have
insurance covering their respective properties, operations, personnel and
businesses, which insures against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are engaged and, in
the opinion of the Company, are adequate to protect their respective businesses.
(ff) The Company has complied and will comply with all
provisions of Florida Statutes Section 517.075 (Chapter 92-198, Laws of
Florida).
(gg) Set forth on EXHIBIT A hereto is a list of each
funded employee pension or benefit plan, as defined in Article 3, Section 2(A)
of the Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA"), and
qualified under Section 401(a) of the Internal Revenue Code, with respect to
which the Company or any of its subsidiaries, or any corporation considered an
affiliate of any of them within the meaning of Section 407(d)(7) of ERISA, is a
party in interest or disqualified person (a "COMPANY PLAN"). No event or
condition exists, with respect to any Company Plan which is reasonably likely to
result in a Material Adverse Effect.
2. PURCHASE, SALE AND DELIVERY OF THE SHARES.
(a) The Company agrees to sell to the respective
Underwriters the Firm Shares, and, on the basis of the representations,
warranties, covenants and agreements herein contained, but subject to the terms
and conditions herein set forth, each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at a price per share of $______, the
number of Firm Shares set forth in Schedule I hereto, plus any additional number
of Shares which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 9 hereof.
-14-
15
(b) Delivery of certificates for the Firm Shares and
payment of the purchase price shall be made at the office of Bear, Xxxxxxx & Co.
Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place or
places as shall be agreed upon by the Representatives and the Company, at 10:00
A.M., New York City time, on the third business day (unless postponed in
accordance with the provisions of Section 9 hereof) following the date of the
effectiveness of the Registration Statement (or, if the Company has elected to
rely upon Rule 430A of the Regulations, the third business day after execution
of this Agreement), or such other time not later than ten business days after
such date as shall be agreed upon by the Representatives and the Company (such
time and date of payment and delivery being herein called the "Closing Date").
Payment shall be made to the Company, by immediately available funds, whether in
the form of New York Clearing House funds, payable to the order of the Company,
or wire transfer, against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for the Firm Shares to be purchased
by the Underwriters. Certificates of Firm Shares shall be registered in such
name or names and in such authorized denominations as the Representatives may
request in writing at least two full business days prior to the Closing Date,
provided that, if so specified by the Representatives, the Firm Shares may be
represented by a global certificate registered in the name of Cede & Co., as
nominee of The Depositary Trust Company ("Cede"). The Company will permit the
Representatives to examine and package such certificates for delivery at least
one full business day prior to the Closing Date at the office of Bear, Xxxxxxx &
Co. Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(c) In addition, the Company hereby grants to the several
Underwriters the option (the "Option") to purchase all or any portion of the
Additional Shares at the same purchase price per share to be paid by the several
Underwriters to the Company for the Firm Shares as set forth in Section 2(a),
for the sole purpose of covering over-allotments in the sale of Firm Shares by
the several Underwriters. The number of Additional Shares to be purchased from
the Company by each Underwriter (as adjusted by the Representatives to eliminate
fractions) shall be determined by multiplying the number of Additional Shares to
be sold by the Company by a fraction, the numerator of which is the number of
Firm Shares purchased by such Underwriter and the denominator of which is the
aggregate number of Firm Shares purchased by all the Underwriters from the
Company hereunder, plus any additional number of Shares which the Underwriters
may become obligated to purchase pursuant to the provisions of Section 9 hereof.
The Option may be exercised at any time in whole or in part on one occasion
only, on or before the thirtieth (30th) calendar day following the date of this
Agreement, by written notice by the Representatives to the Company in the manner
specified in Section 12 hereof. Such notice shall set forth the aggregate number
of Additional Shares as to which the Option is being exercised and the date and
time, as reasonably determined by the Representatives, when the Additional
Shares are to be delivered (such date and time being herein sometimes referred
to as the "Additional Closing Date"); PROVIDED, HOWEVER, that
-15-
16
the Additional Closing Date shall not be earlier than the Closing Date or
earlier than the second full business day after the date on which the Option
shall have been exercised nor later than the tenth full business day after the
date on which the Option shall have been exercised (unless such time and date
are postponed in accordance with the provisions of Section 9 hereof).
Certificates for the Additional Shares shall be registered in such name or names
and in such authorized denominations as the Representatives may request in
writing at least two full business days prior to the Additional Closing Date,
provided that, if so specified by the Representatives, the Additional Shares may
be represented by a global certificate registered in the name of Cede. The
Company will permit the Representatives to examine and package such certificates
for delivery at least one full business day prior to the Additional Closing Date
at the office of Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
Delivery of the certificates for the Additional Shares shall
be made to the Representatives, for the respective accounts of the Underwriters,
against payment by the Representatives, on behalf of the respective
Underwriters, for the Additional Shares in immediately available funds by New
York Clearing House funds, payable to the order of the Company, or by wire
transfer.
(d) The Underwriters shall not be obligated to purchase
any Firm Shares from the Company except upon tender to the Underwriters by the
Company of all of the Firm Shares. The Company shall not be obligated to sell or
deliver Firm Shares except upon tender of payment by the Underwriters for all
the Firm Shares agreed to be purchased by them hereunder.
3. OFFERING. As soon after the Registration Statement
becomes effective as the Representatives deem it advisable to do so, the several
Underwriters propose to offer the Shares for sale to the public upon the terms
set forth in the Prospectus.
4. COVENANTS OF THE COMPANY. The Company covenants and
agrees with the several Underwriters that:
(a) If the Registration Statement or any post-effective
amendment thereto has not yet been declared effective, the Company will use its
best efforts to cause the Registration Statement and any amendments thereto to
become effective as promptly as possible. If the Registration Statement has or
becomes effective pursuant to Rule 430A of the Regulations, or the filing of the
Prospectus is otherwise required under Rule 424(b) of the Regulations, the
Company will file with the Commission the Prospectus (properly completed)
pursuant to Rule 424(b) within the prescribed time period and will provide
evidence satisfactory to the Representatives of such timely filing.
-16-
17
The Company will promptly advise the Representatives, and if
requested by the Representatives, confirm such advice in writing, (1) when the
Registration Statement or any post-effective amendment thereto has become
effective, (2) of the initiation or threatening of any proceedings for, or
receipt by the Company of any notice with respect to, the suspension of the
qualification of the Shares for sale in any jurisdiction or the issuance of any
Stop Order, and (3) of receipt by the Company or any representative or attorney
of the Company of any other communications from the Commission relating to the
Company, the Registration Statement, any preliminary prospectus, the Prospectus
or the transactions contemplated by this Agreement. The Company will make every
reasonable effort to prevent the issuance of a Stop Order and if any such order
is issued to obtain its lifting as soon as possible. The Company will not file
any amendment to the Registration Statement or any amendment of or supplement to
the Prospectus to which the Representatives shall reasonably object in writing
after being timely furnished in advance a copy thereof.
(b) If, at any time when a prospectus relating to the
Shares is required to be delivered under the Act, any event shall occur as a
result of which the Prospectus as then amended or supplemented includes an
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements made therein, in the
light of the circumstances under which they were made, not misleading, or if it
shall be necessary at any time to amend the Registration Statement or supplement
the Prospectus to comply with the Act and the Regulations, the Company will
notify the Representatives promptly and prepare and file with the Commission an
appropriate post-effective amendment or supplement (in form and substance
reasonably satisfactory to the Representatives) that will correct such statement
or omission and which will effect such compliance and will use its best efforts
to have any such post-effective amendment to the Registration Statement declared
effective as soon as possible.
(c) The Company will promptly deliver to the
Representatives one signed copy of the Registration Statement, including
exhibits and all documents incorporated by reference therein and all amendments
thereto, and the Company will promptly deliver to those persons, including the
Representatives, whom the Representatives identify to the Company, such number
of copies of any preliminary prospectus, the Prospectus, the Registration
Statement, and all amendments of and supplements to such documents, if any,
without exhibits, as the Representatives may reasonably request. The Company
consents to the respective use of any preliminary prospectus or the Prospectus
or any amendment or supplement thereto by the Representatives and by all dealers
to whom the Shares may be sold, in connection with the offering or sale of the
Shares, as appropriate, and as to the Prospectus or any amendment or supplement
thereto during such period of time thereafter as the Prospectus is required by
law to be delivered in connection therewith.
-17-
18
(d) The Company will take such action as the
Representatives may request, at or prior to the time of effectiveness of the
Registration Statement, to qualify or register the Shares for offering and sale
under the securities (or "Blue Sky") laws of such jurisdictions as the
Representatives may designate and to maintain such qualifications and
registrations in effect for so long as required for the distribution thereof but
in no event more than 12 months; except that in no event shall the Company be
obligated in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process in any action other than one
arising out of the offering or sale of the Shares in such jurisdiction.
(e) The Company will make generally available (with the
meaning of Section 11(a) of the Act) to its securityholders and to the
Representatives (in such numbers as the Representatives may reasonably request
for distribution to the Underwriters) as soon as practicable, but not later than
45 days after the end of its fiscal quarter in which the first anniversary date
of the effective date of the Registration Statement occurs, an earnings
statement of the Company (complying with the provisions of Rule 158 of the
Regulations).
(f) During the period of 90 days from the date of the
Prospectus, the Company will not, without the prior written consent of Bear,
Xxxxxxx & Co. Inc., issue, sell, offer or agree to sell, grant any option for
the sale of, or otherwise dispose of, directly or indirectly, any capital stock
(or any securities convertible into, exercisable for or exchangeable for capital
stock) other than the sale of the Shares hereunder, the issuance of shares of
Common Stock upon the exercise of options granted under the Company's stock
option plans and the grant of options under the Company's stock option plans and
other than pursuant to the Rights Plan (as defined in the Registration
Statement), and the Company will obtain and deliver to the Representatives
concurrently with the execution hereof the Lock-Up Agreements referred to in
Section 1 (x).
(g) The Company will make available to its stockholders
as soon as practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders' investment
and cash flow of the Company certified by independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), summary financial information of the Company for
such quarter in reasonable detail.
(h) During a period of three years from the effective
date of the Registration Statement, the Company will furnish to the
Representatives copies of all reports or other communications (financial or
other) furnished to stockholders, and deliver to the Representatives as soon as
they are available, copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed.
-18-
19
(i) The Company will apply the proceeds from the sale of
the Shares being sold by the Company as set forth under the caption "Use of
Proceeds" in the Prospectus.
(j) The Company will use its best efforts to obtain and
maintain in effect the listing of the Shares on the New York Stock Exchange and
will take all necessary steps to cause the Shares to be included on the New York
Stock Exchange and to maintain such inclusion for a period of three years after
the date hereof.
(k) The Company will comply with all registration, filing
and reporting requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), which may from time to time be applicable to the Company.
(l) The Company will comply with all provisions of all
undertakings contained in the Registration Statement.
(m) Prior to the Closing Date or the Additional Closing
Date, as the case may be, the Company will not issue any press release or other
communication directly or indirectly and will not hold any press conference with
respect to the Company, or its business, prospects, properties, assets,
earnings, condition (financial or other), results of operations or this offering
without the Representatives' prior written consent which consent will not be
unreasonably withheld.
(n) The Company will not, without the prior written
consent of Bear, Xxxxxxx & Co. Inc., consent to any person or entity that is
subject to a Lock-Up Agreement selling, transferring, assigning, granting any
option for the sale of, or making any other disposition of any shares of capital
stock of the Company during the period during which the Lock-Up is in effect
except as specified therein.
5. PAYMENT OF EXPENSES.
(a) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company covenants
and agrees with the several Underwriters that the Company will pay or cause to
be paid (i) the cost of preparing, printing, duplicating, filing and
distributing the Registration Statement, as originally filed and all amendments
thereof (including all exhibits thereto), any preliminary prospectus, the
Prospectus and any amendments thereof or supplements thereto, the underwriting
documents (including this Agreement, the Agreement Among Underwriters and the
Selling Agreement) and all other documents related to the public offering of the
Shares (including those supplied to the Underwriters in quantities as
hereinabove stated) (including without limitation in each case all fees and
expenses of the Company's accountants and counsel), (ii) all costs and expenses
relating to the issuance, transfer and
-19-
20
delivery of the Shares to the Underwriters, including any transfer or other
taxes payable thereon, (iii) all costs and expenses relating to the
qualification of the Shares under state or foreign securities or "Blue Sky"
laws, including the costs of printing and mailing a preliminary and final "Blue
Sky Survey" and the fees of counsel for the Underwriters and such counsel's
disbursements in relation thereto, (iv) all costs and expenses relating to
listing of the Shares on the New York Stock Exchange, (v) all filing fees of the
Commission and the National Association of Securities Dealers, Inc. ("NASD"),
(vi) all costs and expenses incident to any review by the NASD of the terms of
the sale of the Shares (including, without limitation, fees and expenses of
Underwriters' counsel in relation thereto), (vii) the cost of printing
certificates representing the Shares, (viii) the cost and charges of any
transfer agent or registrar, (ix) all other costs and expenses incident to the
performance of the Company's obligations hereunder which are not otherwise
specifically provided in this Section 5. It is understood, however, that the
Company shall bear the cost of any other matters not directly relating to the
sale and purchase of the Shares pursuant to this Agreement, and that, except as
provided in this Section 5 and Sections 7, 8 and 11(d) hereof, the Underwriters
will pay all of their own costs and expenses, including the fees of their
counsel and stock transfer taxes on resale of any of the Shares by them.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The
obligations of the several Underwriters to purchase and pay for the Firm Shares
and the Additional Shares provided herein shall be subject, in the
Representatives' discretion, to the condition that all of the representations
and warranties of the Company herein contained are true and correct, as of the
date hereof and as of the Closing Date (for purposes of this Section 6, "Closing
Date" shall refer to the Closing Date for the Firm Shares and the Additional
Closing Date, if any, for the Additional Shares), to the absence from any
certificates, opinions, written statements or letters furnished to the
Representatives or to Paul, Hastings, Xxxxxxxx & Xxxxxx LLP ("Underwriters'
Counsel"), pursuant to this Section 6 of any qualification or limitation not
previously approved in writing by the Representatives, to the performance by the
Company of their respective obligations hereunder, and to the following
additional conditions:
(a) the Registration Statement shall have become
effective not later than 5:30 p.m., New York City time, on the date of this
Agreement, or at such later time and date as shall have been consented to in
writing by the Representatives; if the Company shall have elected to rely upon
Rule 430A of the Regulations, the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act within the applicable time
period prescribed for such filing by the Regulations and in accordance with
Section 4(a) hereof; and at or prior to the Closing Date, (i) no Stop Order
shall have been issued and in effect and no proceedings therefor shall have been
initiated or threatened by the Commission or the authorities of any such
jurisdiction; (ii) all requests for additional information on the part of the
Commission shall have been complied with to the
-20-
21
Representatives' reasonable satisfaction and (iii) after the date hereof, no
amendment or supplement to the Registration Statement or the Prospectus shall
have been filed unless a copy thereof was first submitted to the Underwriters
and the Underwriters did not reasonably object thereto.
(b) At the Closing Date, the Representatives shall have
received the opinion of (i) of Ropes & Xxxx, counsel for the Company, dated the
Closing Date and in form and substance reasonably satisfactory to the
Representatives and (ii) the General Counsel of the Company, dated the Closing
Date and in form and substance reasonably satisfactory to the Representatives.
(c) At the Closing Date, the Representatives shall have
received a certificate of the Company, executed on behalf of the Company by the
President and Chief Executive Officer and the Chief Accounting Officer of the
Company, dated the Closing Date to the effect that (i) the conditions set forth
in subsection (a) of this Section 6 have been satisfied, (ii) as of the date
hereof and as of the Closing Date, the representations and warranties of the
Company set forth in Section 1 hereof are true and accurate, (iii) at the time
of the Closing on the Closing Date, the obligations of the Company to be
performed hereunder on or prior thereto have been duly performed and (iv)
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, the Company and each of its
subsidiaries have not sustained any material loss or interference with their
respective businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding, and there has not been any material
adverse change, or any development involving a material adverse change, in the
business, prospects, properties, assets, earnings, operations, condition
(financial or other) or results of operations of the Company and its
subsidiaries taken as a whole, except in each case as described in or expressly
contemplated by the Prospectus.
(d) At the time this Agreement is executed and at the
Closing Date, the Representatives shall have received letters, from (i) Xxxxxx
Xxxxxxxx LLP, with respect to the Company, (ii) Xxxxx Xxxxxxxx LLP, with respect
to PlyGem and (iii) Coopers & Xxxxxxx L.L.P., with respect to NuTone, each of
which are independent certified public accountants, dated as of the date of this
Agreement and as of the Closing Date, as appropriate, addressed to the
Underwriters and in form and substance satisfactory to the Representatives
substantially in the forms previously approved by you.
(e) All proceedings in connection with the sale of the
Firm Shares and the Additional Shares as herein contemplated shall be
satisfactory in form and substance to the Representatives and to Underwriters'
Counsel, and the Underwriters shall have received from Underwriters' Counsel a
favorable opinion, dated as of the Closing Date with respect to the issuance and
sale of the Shares, the Registration Statement and the
-21-
22
Prospectus and such other related matters as the Representatives may reasonably
require, and the Company shall have furnished to Underwriters' Counsel such
documents as they request for the purpose of enabling them to pass upon such
matters.
(f) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(g) The Representatives shall have received from the
directors or executive officers of the Company named on Schedule II the
agreements required by Section 4(f).
(h) The NASD, upon review of the terms of the public
offering of the Firm Shares and the Additional Shares, shall not have objected
to the Underwriters' participation in such offering.
(i) The Company shall not have sustained, (i) since the
date of the latest audited financial statements included in the Prospectus, any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree otherwise than as set forth or
expressly contemplated in the Prospectus which loss or interference is not
immaterial to the Company and its subsidiaries taken as a whole, and (ii) since
the respective dates as of which information is given in the Prospectus, there
shall not have been any change in the capital stock (other than as disclosed in
the Prospectus) or any material change in the long-term or short-term debt of
the Company or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company, otherwise than as set forth or expressly contemplated in the
Prospectus, the effect of which, in any such case described in clause (i) or
(ii) of this Section 6(i), in the Representatives' reasonable judgment, makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered on the Closing Date on the terms and in the manner
contemplated in the Prospectus.
(j) The Shares shall have been duly approved for listing
on the New York Stock Exchange under the symbol disclosed in the Prospectus.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to the
Representatives or to Underwriters' Counsel pursuant to this Section 6 shall not
be in all material respects reasonably satisfactory in form and substance to the
Representatives and to Underwriters' Counsel, all obligations
-22-
23
of the Underwriters hereunder may be canceled by the Representatives at, or at
any time prior to, the Closing Date and the obligations of the Underwriters to
purchase the Additional Shares may be canceled by the Representatives at, or at
any time prior to, the Additional Closing Date. Notice of such cancellation
shall be given to the Company in writing, or by telephone, telex or telegraph,
confirmed in writing.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless
each Underwriter, its officers, directors, partners, employees, agents and
counsel, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against
any and all losses, liabilities, claims, damages and expenses whatsoever
(including but not limited to attorneys' fees and any and all expenses
whatsoever reasonably incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and any and
all amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act,
any state securities or Blue Sky law or otherwise, insofar as such losses,
liabilities, claims, damages, obligations, penalties, judgments, awards, costs,
disbursements or expenses (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Shares, as
originally filed or any amendment thereof, or any related preliminary prospectus
or the Prospectus, or in any supplement thereto or amendment thereof, in any
blue sky application or other document prepared or executed by the Company (or
based upon any written information furnished by the Company) specifically for
the purpose of qualifying any or all of the Shares under the securities laws of
any state or other jurisdiction (any such application, document or information
being hereinafter called a "Blue Sky Application"), or arise out of or are based
upon the omission or alleged omission to state in any preliminary prospectus,
the Registration Statement for the registration of the Shares or the Prospectus,
or in any amendment thereof or supplement thereto, or in any Blue Sky
Application, any material fact required to be stated therein or necessary to
make the statements therein not misleading; PROVIDED, HOWEVER, that, (i) the
Company will not be liable in any such case to the extent, but only to the
extent, that any such loss, liability, claim, damage, obligation, penalty,
judgment, award, cost, disbursement or expense arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives expressly for use therein and (ii) the indemnity agreement
contained in this Section 7(a) with respect to any preliminary prospectus (or
the Prospectus) shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) from whom the person
asserting any such losses, liabilities, claims, damages or expenses purchased
the Shares which is the subject thereof
-23-
24
(or to the benefit of any person controlling such Underwriter) if at or prior to
the written confirmation of the sale of such Shares a copy of the Prospectus (or
the Prospectus as amended or supplemented) was not sent or delivered to such
person and the untrue statement or omission of a material fact contained in such
preliminary prospectus (or the Prospectus) was corrected in the Prospectus (or
the Prospectus as amended or supplemented) and delivery of such Prospectus (or
the Prospectus as amended or supplemented) would have eliminated any such loss,
liability, claim, damage or expense unless the failure is the result of
non-compliance by the Company with Section 4(c) hereof; PROVIDED, HOWEVER, the
indemnity agreement in this Section 7(a) shall not apply to any portion of any
such loss, liability, claim, damage, obligation, penalty, judgment, award, cost,
disbursement or expense to the extent it is found in a final judgment by a court
of competent jurisdiction (not subject to further appeal) to have resulted
primarily and directly from the gross negligence or willful misconduct of the
Underwriters. This indemnity agreement will be in addition to any liability
which the Company may otherwise have including, without limitation, under this
Agreement. Without limiting the rights of any Underwriter or controlling person
thereof, the provisions of this Section 7 shall not affect any existing
arrangements between the Company and any Underwriter relating to
indemnification.
(b) Each Underwriter severally, and not jointly, agrees
to indemnify and hold harmless the Company, each of the directors of the
Company, each of the officers of the Company who shall have signed the
Registration Statement, and each other person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, against any losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) are based solely upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement for the registration of the Shares, as originally filed or any
amendment thereof, or any related preliminary prospectus or the Prospectus, or
in any amendment thereof or supplement thereto, or in any Blue Sky Application,
or arise out of or are based solely upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that any such loss, liability, claim, damage or expense arises out
of or is based solely upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Underwriter through the Representatives expressly for use therein; PROVIDED,
HOWEVER, that in no case shall any Underwriter be liable or responsible for any
amount in excess of
-24-
25
the underwriting discount applicable to the Shares purchased by such Underwriter
hereunder. This indemnity will be in addition to any liability which any
Underwriter may otherwise have including, without limitation, under this
Agreement. The Company acknowledges that the statements set forth in the last
paragraph of the cover page, in the paragraph on the inside front cover page of
the Prospectus relating to possible stabilization transactions, in the table
listing Underwriters under the caption "Underwriting" in the Prospectus and in
the second and sixth paragraphs under the caption "Underwriting" in the
Prospectus constitute the only information furnished in writing by or on behalf
of any Underwriter expressly for use in the registration statement relating to
the Shares as originally filed or in any amendment thereof, any related
preliminary prospectus or the Prospectus or in any amendment thereof or
supplement thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure to so notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent the
indemnifying party is materially prejudiced by such failure). In case any such
action is brought against any indemnified party, and it notifies an indemnifying
party of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent it may elect by written notice delivered
to the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action, or
(iii) such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to one or all of the indemnifying parties (in
which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the indemnifying parties.
In no event will the indemnifying parties hereunder be responsible for the fees
and expenses of more than one such counsel (together with appropriate local
counsel). Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim or action
effected without its written consent; PROVIDED, HOWEVER, that such consent was
not unreasonably withheld.
-25-
26
8. CONTRIBUTION. In order to provide for contribution
in circumstances in which the indemnification provided for in Section 7 hereof
is for any reason unavailable from any indemnifying party or is insufficient to
hold harmless a party indemnified thereunder, then each indemnifying party shall
contribute to the aggregate losses, claims, damages, liabilities and expenses of
the nature contemplated by such indemnification provision (including without
limitation any investigation, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company, any
contribution received by the Company from persons, other than the Underwriters,
who may also be liable for contribution, including persons who control the
Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, officers of the Company who signed the Registration Statement and
directors of the Company) as incurred to which the Company and one or more of
the Underwriters may be subject, in such proportions as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Shares or, if such
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company, on the one hand, and the Underwriters, on the
other hand, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and the Underwriters, on the other hand, shall be
deemed to be in the same proportion as (x) the total proceeds from the offering
(net of underwriting discounts and commissions but before deducting expenses)
received by the Company, and (y) the underwriting discounts and commissions
received by the Underwriters, respectively, in each case as set forth in the
table on the cover page of the Prospectus, bear to the aggregate public offering
price of the Shares. The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above. Notwithstanding
the provisions of this Section 8, (i) in no case shall any Underwriter be liable
or responsible for any portion of the contribution obligation imposed on all
Underwriters in excess of its pro rata share of the total underwriting discount
set forth in the table on the cover page of the Prospectus based on the number
of shares underwritten by it as compared to the number of shares underwritten by
all Underwriters who do not default on their obligations under this Section 8
less all amounts paid or
-26-
27
payable by such Underwriter pursuant to Section 7, and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act shall have the same rights to contribution as
such Underwriter, and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (i) and (ii) of the immediately
preceding sentence. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties, notify each party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 8 or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without consent;
PROVIDED, HOWEVER, that such consent was not unreasonably withheld.
9. DEFAULT BY AN UNDERWRITER.
(a) If any Underwriter or Underwriters shall default in
its or their obligation to purchase Firm Shares or Additional Shares hereunder,
and if the Firm Shares or Additional Shares with respect to which such default
relates do not (after giving effect to arrangements, if any, made by the
Representatives pursuant to subsection (b) below) exceed in the aggregate 10% of
the number of Firm Shares or Additional Shares, as the case may be, which all
Underwriters have agreed to purchase hereunder, then such Firm Shares or
Additional Shares to which the default relates shall be purchased by the
non-defaulting Underwriters in proportion to the respective proportions which
the numbers of Firm Shares set forth opposite their respective names in Schedule
I hereto bear to the aggregate number of Firm Shares set forth opposite the
names of the non-defaulting Underwriters.
(b) If such default relates to more than 10% of the Firm
Shares or Additional Shares, as the case may be, the Representatives may in
their discretion arrange for themselves or for another party or parties
(including any non-defaulting Underwriter or Underwriters who so agree) to
purchase such Firm Shares or Additional Shares, as the case may be, to which
such default relates on the terms contained herein. If within five calendar days
after such a default the Representatives do not arrange for the purchase of the
Firm Shares or Additional Shares, as the case may be, to which such default
relates as provided in this Section 9, this Agreement (or, in the case of a
default with respect to the Additional Shares, the obligations of the
Underwriters to purchase and the Company
-27-
28
to sell the Additional Shares) shall thereupon terminate, without liability on
the part of the Company with respect thereto (except in each case as provided in
Sections 5, 7 and 8 hereof) or the several non-defaulting Underwriters, but
nothing in this Agreement shall relieve a defaulting Underwriter or Underwriters
(except as provided in Sections 5, 7 and 8 hereof) of its or their liability, if
any, to the other several Underwriters or the Company for damages occasioned by
its or their default hereunder.
(c) If the Firm Shares or Additional Shares to which the
default relates are to be purchased by the non-defaulting Underwriters, or are
to purchased by another party or parties as aforesaid, the Representatives or
the Company shall have the right to postpone the Closing Date or Additional
Closing Date, as the case may be, for a period, not exceeding five business
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment or
supplement to the Registration Statement or the Prospectus which, in the
reasonable opinion of Underwriters' Counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in this Agreement shall include any
party substituted under this Section 9 with the like effect as if it had
originally been a party to this Agreement with respect to such Firm Shares and
Additional Shares.
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All
representations and warranties, covenants and agreements of the Underwriters and
the Company contained in this Agreement, including the agreements contained in
Section 5, the indemnity agreements contained in Section 7 and the contribution
agreements contained in Section 8, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any Underwriter
or any controlling person thereof or by or on behalf of the Company, any of its
officers and directors or any controlling person thereof, and shall survive
delivery of and payment for the Shares to and by the several Underwriters. The
representations contained in Section 1 and the agreements contained in Sections
5, 7, 8 and 11(d) hereof shall survive the termination of this Agreement,
including termination pursuant to Section 9 or 11 hereof.
11. EFFECTIVE DATE OF AGREEMENT; TERMINATION.
(a) This Agreement shall become effective (i) if Rule
430A under the Act is not used, when the Representatives shall have received
notification of the effectiveness of the Registration Statement, or (ii) if Rule
430A under the Act is used, when the parties hereto have executed and delivered
this Agreement. If either the initial public offering price or the purchase
price per Share has not been agreed upon prior to 5:00 P.M., New York City time,
on the fourteenth full business day after the Registration Statement shall have
become effective, this Agreement shall thereupon terminate without liability to
the Company or the Underwriters except as herein expressly provided. Until
-28-
29
this Agreement becomes effective as aforesaid, it may be terminated by the
Company by notifying the Representatives or by the Representatives notifying the
Company. Notwithstanding the foregoing, the provisions of this Section 11 and of
Sections 1, 5, 7 and 8 hereof shall at all times be in full force and effect.
(b) The Representatives shall have the right to terminate
this Agreement at any time prior to the Closing Date (and, with respect to the
Additional Shares, the Additional Closing Date) by notice to the Company from
you, without liability (other than with respect to Sections 7 and 8 hereof) on
the part of any Underwriter to the Company, if, on or prior to such date, (i)
the Company shall have failed, refused or been unable to perform in any material
respect any agreement on its part to be performed hereunder, (ii) any other
condition to the Underwriters' obligations hereunder set forth in Section 6 is
not fulfilled when and as required in any material respect, (iii) trading in
securities on the New York or American Stock Exchanges or in the
over-the-counter market shall have been suspended or materially limited, or
minimum or maximum prices shall have been established or maximum price ranges
for prices for securities shall have been required, on the New York or American
Stock Exchanges or in the over-the-counter market by the Commission, or by such
exchange or other regulatory body or governmental authority having jurisdiction,
(iv) a general banking moratorium shall have been declared by a federal or state
authority or any new restriction materially and adversely affecting the Firm
Shares or the Additional Shares, as the case may be, shall have become
effective, (v) there shall have occurred an outbreak or escalation of armed
hostilities involving the United States on or after the date hereof, or if there
has been a declaration by the United States of a national emergency or war, the
effect of which shall be, in the Representatives' judgment, to make it
inadvisable or impracticable to proceed with the sale and delivery of the Shares
on the terms and in the manner contemplated in the Prospectus, (vi) there shall
have occurred such a material adverse change since the respective dates as of
which information is given in the Registration Statement or the Prospectus in
the condition (financial or other) of the Company and its subsidiaries taken as
a whole, whether or not arising in the ordinary course of business other than as
set forth in the Prospectus, such as, in the Representatives' judgment, makes it
inadvisable or impracticable to proceed with the sale and delivery of the Firm
Shares or the Additional Shares, as the case may be, on the terms contemplated
hereby and by the Prospectus, or (vii) there shall have occurred such a material
adverse change in general economic, political or financial conditions or if the
effect of international conditions on the financial markets in the United States
shall be such as, in the Representatives' judgment, makes it inadvisable or
impracticable to proceed with the sale and delivery of the Firm Shares or the
Additional Shares, as the case may be, on the terms contemplated hereby and by
the Prospectus. The right of the Representatives to terminate this Agreement
will not be waived or otherwise relinquished by their failure to give notice of
termination prior to the time that the event giving rise to the right to
terminate shall have ceased to exist, provided that notice is given prior to the
Closing Date (and, with respect to the Additional Shares, the Additional Closing
Date).
-29-
30
(c) Any notice of termination pursuant to this Section 11
shall be by telephone, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any
of the provisions hereof (otherwise than pursuant to (i) notification by the
Representatives as provided in Section 11(a) hereof or (ii) Section 9(b) or
11(b) (except clauses (i) and (ii) thereof), or if the sale of the Shares
provided for herein is not consummated because any condition to the obligations
of the several Underwriters set forth herein is not satisfied or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof, the Company will, subject
to demand by the Representatives, reimburse the several Underwriters for all
out-of-pocket expenses (including the fees and expenses of their counsel),
reasonably incurred by the several Underwriters in connection herewith.
12. NOTICE. All communications hereunder, except as may
be otherwise specifically provided herein, shall be in writing and if sent to
any Underwriter, shall be mailed, delivered, or telexed or telegraphed and
confirmed in writing, to such Underwriter c/o Bear, Xxxxxxx & Co. Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance Department with a
copy to Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, telecopier number (212)
319-4090; and if sent to the Company, shall be mailed, delivered, or telexed or
telegraphed and confirmed in writing to 00 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx
Xxxxxx 00000-0000, Attention: Xxxxx X. Xxxx, telecopier number: (000) 000-0000,
with a copy to Ropes & Xxxx, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000-0000, Attention: Xxxxxxxx X. Xxxxx, Xx., telecopier number: (617)
951-7050.
In all dealings hereunder, the Representatives shall act on
behalf of each of the Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representatives jointly or by Bear, Xxxxxxx &
Co. Inc. on behalf of the Representatives.
13. PARTIES. This Agreement shall inure solely to the
benefit of, and shall be binding upon the several Underwriters and the Company
and the controlling persons, directors, officers, employees and agents referred
to in Sections 7 and 8 hereof, and their respective successors and assigns, and
no other person shall have or be construed to have any legal or equitable right,
remedy or claim under or in respect of or by virtue of this Agreement or any
provision herein contained. The term "successor and assigns" shall not include a
purchaser, in its capacity as such, of Shares from any of the Underwriters.
-30-
31
14. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to principles of conflicts of laws. Time is of the essence in this
Agreement.
15. COUNTERPARTS. This Agreement may be executed by any
one or more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same agreement.
16. PARTIAL INVALIDITY. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
17. NUTONE. Notwithstanding anything to the contrary
contained herein, the Company's failure to complete the proposed acquisition of
NuTone Inc. at any time or to complete the acquisition of NuTone Inc. as
currently structured or the Company's or NuTone's divesture or proposed
divesture of any assets or product lines in connection with the completion of
the proposed acquisition shall not be a Material Adverse Effect or a material
adverse change for the purpose of this Agreement; PROVIDED, HOWEVER, that this
provision shall not apply if such failure to complete the acquisition of NuTone
Inc. results in the incurrence by the Company of any loss, liability, claim or
damage to or expense payable to NuTone or Xxxxxxxx Y & N Holdings, Inc. other
than as described in the Registration Statement or as will be set forth in the
Prospectus.
If the foregoing correctly sets forth your understanding,
please so indicate in the space provided below for that purpose and return to us
five counterparts hereof, and upon acceptance hereof by the Representatives, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and the Company.
It is understood that the acceptance by the Representatives of this letter on
behalf of each of the Underwriters is pursuant to the authority set forth in a
form of Agreement Among Underwriters, the form of which shall be submitted to
the Company for examination, upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
NORTEK, INC.
By:_____________________________________
Name:___________________
Title:__________________
-31-
32
Accepted as of the date first above written at New York, New York, on behalf of
themselves severally and the other several Underwriters named in Schedule I
hereto.
BEAR, XXXXXXX & CO. INC.
PAINEWEBBER INCORPORATED
XXXXXXXXXXX XXXXXXX SECURITIES, INC.
By: Bear, Xxxxxxx & Co. Inc.
Name:__________________________
Title:_________________________
-32-
33
SCHEDULE I
NUMBER OF ADDITIONAL
SHARES TO BE
NUMBER OF FIRM PURCHASED IF
SHARES TO BE MAXIMUM OPTION
NAME OF UNDERWRITER PURCHASED EXERCISED
-------------------------------------------------------------------------------------------------
Bear, Xxxxxxx & Co. Inc.
Painewebber Incorporated
Xxxxxxxxxxx Xxxxxxx Securities, Inc.
-------------------------------------------------------------------------------------------------
TOTAL 2,000,000 300,000
-33-
34
SCHEDULE II
Lock-Ups
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
X. Xxxxx Xxxxx
Xxxxx X. Xxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxx
-34-
