Exhibit 2
AMENDMENT NO. 1 TO
EXCHANGE AGREEMENT
AMENDMENT NO. 1 (the "AMENDMENT"), dated as of September 16, 2002, by and
among Nortek, Inc., a Delaware corporation ("Nortek"), Nortek Holdings, Inc., a
Delaware corporation and a wholly owned subsidiary of Nortek ("Nortek
Holdings"), K Holdings, Inc., a Delaware corporation ("K Holdings"), and Xxxxxxx
X. Xxxxxx (the "Stockholder") to the Exchange Agreement (the "AGREEMENT"), dated
as of June 20, 2002, by and among Nortek, Nortek Holdings, K Holdings and the
Stockholder.
WHEREAS, the parties hereto desire to enter into this Amendment so as to
make certain modifications to the Agreement;
WHEREAS, the Board of Directors of Nortek (upon the recommendation of a
Special Committee thereof consisting solely of disinterested directors) and the
Board of Directors of Nortek Holdings have approved this Amendment and deem it
advisable and in the best interests of their respective companies and
stockholders to enter into this Amendment;
NOW, THEREFORE, for good and valuable consideration and in consideration of
the respective representations, warranties, covenants and agreements set forth
in the Agreement, the parties agree as follows:
ARTICLE I
AMENDMENT; REFERENCES
Section 1.1 DEFINITIONS; REFERENCES. Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to them in the Agreement.
Each reference to "hereof", "herein", "hereunder", "hereby" and "this Agreement"
shall from and after the date hereof refer to the Agreement as amended by this
Amendment. Notwithstanding the foregoing, references to the date of the
Agreement, as amended hereby, shall in all instances remain as June 20, 2002,
and references to "the date hereof" and "the date of the Agreement" shall
continue to refer to June 20, 2002.
Section 1.2 AMENDMENT.
(a) The fifth Whereas clause in the recitals of the Agreement is
hereby amended by DELETING the text of such clause in its entirety and replacing
it with the following language:
"WHEREAS, pursuant to the Nortek Holdings COD (as defined in the
Recapitalization Agreement), immediately after the Reclassification but prior
to the Redemption (each, as defined in the Recapitalization Agreement) each
outstanding share of Nortek Holdings Pref-
erence Stock held by Management Holders (as defined in the Nortek Holdings COD)
shall automatically be converted into one fully paid and nonassessable share of
Class A Common Stock;"
(b) Section 1(a) of the Agreement is hereby amended by DELETING the
words "(as defined in the Recapitalization Agreement)" in the third sentence
thereof.
(c) Section 4 of the Agreement is hereby amended by DELETING the text
of such clause in its entirety and replacing it with the following language:
"4. CLOSING. The closing of the transactions contemplated by this
Agreement shall take place at the offices of Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP, Four Times Square, New York, concurrently with the Closing of the
Transactions (each, as defined in the Recapitalization Agreement), with such
transactions intended to be consummated in the order specified in the recitals
to the Recapitalization Agreement but substantially concurrently with each
other."
(d) Section 7(g) of the Agreement is hereby amended by inserting the
words "(as defined in the Recapitalization Agreement)" after the words "K Stock
Purchase" in the last line thereof.
(e) Section 7(h) of the Agreement is hereby amended (a) by DELETING
the reference to "Class A Common Stock" in subclause (ii) thereof and replacing
it with the words "Nortek Holdings Preference Stock", (b) by DELETING the second
reference to "Class A Common Stock and Rolled Over Options" in subclause
(iii)(B) thereof and replacing it with the words "Class A Common Stock, Rolled
Over Options and Nortek Holdings Preference Stock" and (c) by inserting the
words "and Nortek Holdings Preference Stock" immediately after the first
reference to "Class A Common Stock" in the last sentence thereof.
(f) Section 8(a) of the Agreement is hereby amended by DELETING the
following language: "(as defined in the Recapitalization Agreement)".
(g) Section 8(c) of the Agreement is hereby amended by DELETING the
following language: "(as defined in the Recapitalization Agreement)".
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ARTICLE II
MISCELLANEOUS
Section 2.1 COUNTERPARTS. This Amendment may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
Section 2.2 GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Delaware.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
NORTEK, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President, General
Counsel & Secretary
NORTEK HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President & Secretary
K HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxx, XX.
-----------------------------
Name: Xxxxx X. Xxxxxxx, XX.
Title: Vice President
STOCKHOLDER
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title:
