Exhibit 2.1
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
NORTEK, INC.
(A DELAWARE CORPORATION)
AND
NORTEK HOLDINGS, INC.
(A DELAWARE CORPORATION)
AND
NORTEK HOLDINGS MERGER SUB, INC.
(A DELAWARE CORPORATION)
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DATED AS OF NOVEMBER 20, 2002
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of November 20 2002 (the
"AGREEMENT"), by and among Nortek, Inc., a Delaware corporation ("NORTEK" or,
with regard to the period upon and after the Effective Time (as hereinafter
defined), the "SURVIVING CORPORATION"), Nortek Holdings, Inc., a Delaware
corporation and a direct wholly owned subsidiary of Nortek ("HOLDCO"), and
Nortek Holdings Merger Sub, Inc., a Delaware corporation and a direct wholly
owned subsidiary of Holdco and an indirect wholly owned subsidiary of Nortek
("HOLDCO SUB" and, together with Nortek, the "CONSTITUENT CORPORATIONS" and
each, a "CONSTITUENT CORPORATION").
W I T N E S S E T H:
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WHEREAS, Nortek is a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "DGCL") and is authorized
to issue a total of 52,000,000 shares, consisting of: (i) 40,000,000 shares of
common stock, par value $1.00 per share ("NORTEK COMMON STOCK"); (ii) 5,000,000
shares of special common stock, par value $1.00 per share ("NORTEK SPECIAL
COMMON STOCK"); and (iii) 7,000,000 shares of preference stock, $1.00 par value
per share, of which 200,000 shares are designated as Series A Participating
Preference Stock ("SERIES A PREFERENCE STOCK"). As of immediately prior to the
Effective Time (as defined herein) there will be shares of Nortek Common Stock
issued and outstanding, including in respect of each such share an associated
right to purchase Nortek Series A Preference Stock (the "OUTSTANDING NORTEK
COMMON SHARES") and shares of Nortek Special Common Stock issued and outstanding
(the "OUTSTANDING NORTEK SPECIAL COMMON SHARES" and, together with the
Outstanding Nortek Common Shares, the "OUTSTANDING NORTEK SHARES") and no shares
of Series A Preference Stock issued and outstanding;
WHEREAS, Holdco Sub is a corporation organized and existing under the
DGCL and is authorized to issue a total of 100 shares, in a single class of
common stock, $.01 par value per share ("HOLDCO SUB COMMON STOCK"), of which, as
of the date hereof, 100 shares are issued and outstanding (the "OUTSTANDING
HOLDCO SUB COMMON SHARES");
WHEREAS, as of the date hereof, Holdco holds of record all of the
Outstanding Holdco Sub Common Shares and no shares of Holdco Sub Common Stock
are issued but not outstanding;
WHEREAS, Holdco is a corporation organized and existing under the DGCL
and is authorized to issue a total of 100 shares of common stock, par value $.01
per share ("HOLDCO COMMON STOCK"), and prior to the Effective Time will be
authorized to issue a total of 52,000,000 shares, consisting of: (i) 40,000,000
shares of Holdco Common Stock; (ii) 5,000,000 shares of special common stock,
par value $1.00 per share ("HOLDCO SPECIAL COMMON STOCK"); and (iii) 7,000,000
shares of preference stock, $1.00 par value per share (the "HOLDCO PREFERENCE
STOCK"), of which 200,000 shares will constitute, prior to the Effective Time, a
series of Holdco Preference Stock identical to Series A Preference Stock, having
the designation "Series A Participating Preference Stock" (the "HOLDCO SERIES A
PREFERENCE STOCK"). As of the date hereof, there are 100 shares issued and
outstanding of Holdco Common Stock (the "OUTSTANDING HOLDCO COMMON SHARES");
WHEREAS, as of the date hereof, Nortek holds of record all of the
Outstanding Holdco Common Shares and no shares of Holdco Common Stock are issued
but not outstanding;
WHEREAS, the respective Boards of Directors of Nortek (upon the
recommendation of a special committee thereof consisting solely of disinterested
directors (the "SPECIAL COMMITTEE")), Holdco Sub and Holdco have determined that
it is advisable and in the best interests of each of Nortek, Holdco Sub and
Holdco and their respective stockholders that Holdco Sub be merged with and into
Nortek, with Nortek continuing as the Surviving Corporation, in accordance with
the terms and conditions of this Agreement (the "MERGER"), and accordingly the
Boards of Directors of each of Nortek (upon the recommendation of the Special
Committee), Holdco Sub and Holdco have approved and authorized this Agreement
and the transactions contemplated hereby, including the Merger; and
WHEREAS, it is contemplated that the Merger will be effected in
accordance with Section 251(g) of the DGCL, and that the Merger and the exchange
of shares of capital stock of Nortek for shares of capital stock of Holdco shall
be a transaction described in Section 351(a) and/or Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "CODE");
NOW, THEREFORE, in consideration of the premises, the mutual
agreements, promises, covenants, representations, warranties, acknowledgments
and other terms, conditions, and provisions set forth herein, and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
THE MERGER
1. THE MERGER.
1.1 THE MERGER; FILING AND EFFECTIVE TIME. Subject to and in
accordance with the terms and conditions of this Agreement and the DGCL, this
Agreement and the certificates of the respective secretaries of Nortek and
Holdco Sub attached hereto as EXHIBITS A AND B, duly executed, shall be filed
with the Secretary of State of the State of Delaware (the "DELAWARE SECRETARY OF
STATE") by the Surviving Corporation at or as soon as practicable after the
Closing (as defined below). The Merger shall become effective at the time when
this Agreement is so filed with the Delaware Secretary of State (the "EFFECTIVE
TIME").
1.2 CLOSING. Subject to and in accordance with the terms and
conditions of this Agreement, the closing of the Merger (the "CLOSING") shall
take place as soon as practicable after satisfaction of the latest to occur of
the conditions set forth in Article IV hereof (the "CLOSING DATE"), at the
office of Ropes & Xxxx, unless another date or place is agreed to in writing by
the parties hereto.
1.3 EFFECTS OF THE MERGER. The Merger shall have the effects set
forth in Section 259 of the DGCL.
1.4 CERTIFICATE OF INCORPORATION OF THE SURVIVING CORPORATION. The
Restated Certificate of Incorporation of Nortek, as in effect immediately prior
to the Effective Time (the "NORTEK CHARTER"), shall be the certificate of
incorporation of the Surviving Corporation (the "SURVIVING CORPORATION
CHARTER"), except that the following amendments thereto are to be effected by
the Merger upon the Effective Time:
The Surviving Corporation Charter shall be amended by deleting
Article FIFTH thereof in its entirety and inserting in lieu thereof the
following: "FIFTH: The total number of shares of stock that the
Corporation has authority to issue is 100 shares of Common Stock, par
value $0.01 per share (the "COMMON STOCK")."; and
1.5 BYLAWS OF THE SURVIVING CORPORATION. The Bylaws of Nortek as
in effect immediately prior to the Effective Time (the "NORTEK BYLAWS"), shall
be and continue in full force and effect as the bylaws of the Surviving
Corporation upon and after the Effective Time, unless and until duly amended,
altered, changed, repealed, and/or supplemented in accordance with the DGCL
(which power and right to amend, alter, change, repeal, and/or supplement, at
any time and from time to time after the Effective Time, are hereby expressly
reserved).
1.6 DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION.
A. The respective members constituting the whole Board
of Directors of Nortek immediately prior to the Effective Time shall be
the respective members constituting the whole Board of Directors of the
Surviving Corporation upon and after the Effective Time, until such
members' respective successors are duly elected and qualified or until
such members' earlier death, resignation, disqualification or removal
and unless and until the number of members of such Board of Directors
shall be duly increased or decreased in accordance with the DGCL (which
power and right to increase and decrease, at any time and from time to
time after the Effective Time, are hereby expressly reserved).
B. Each person serving as an officer of Nortek
immediately prior to the Effective Time shall be and continue as an
officer of the Surviving Corporation, holding the same office or
offices, upon and after the Effective Time, until such person's
successor is chosen and qualified or until such person's earlier death,
resignation, disqualification, or removal (which power and right to
remove are hereby expressly reserved).
1.7 FURTHER ASSURANCES. At any time and from time to time upon and
after the Effective Time, as and when required or deemed desirable by the
Surviving Corporation or its successors or assigns, there shall be executed,
acknowledged, certified, sealed, delivered, filed, and/or recorded, in the name
and on behalf of any and each Constituent Corporation, such deeds, contracts,
consents, certificates, notices, and other documents and instruments, and there
shall be done or taken or caused to be done or taken, in the name and on behalf
of any and each Constituent Corporation, such further and other things and
actions as shall be appropriate, necessary, or convenient to acknowledge, vest,
effect, perfect, conform of record, or otherwise confirm the Surviving
Corporation's (or its successors' or assigns') right, title, and interest in
kind to, and possession of, all the property, interests, assets, rights,
privileges, immunities, powers, franchises, and authority of each Constituent
Corporation held immediately prior to the Effective Time, and otherwise to carry
out
and effect the intent and purposes of this Agreement and the Merger. The
officers and directors of the Surviving Corporation (or its successors or
assigns), and each of them, upon and after the Effective Time, are and shall be
fully authorized, in the name and on behalf of each Constituent Corporation, to
do and take and cause to be done and taken any and all such things and actions,
and to execute, acknowledge, certify, seal, deliver, file, and/or record any and
all such deeds, contracts, consents, certificates, notices, and other documents
and instruments.
ARTICLE II
EFFECT OF THE MERGER ON THE
CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
2. EFFECT ON CAPITAL STOCK. Upon and as of the Effective Time, by
virtue of the Merger and without any action on the part of the holders of the
respective shares:
2.1 CONVERSION OF HOLDCO SUB SHARES. Each Outstanding Holdco Sub
Common Share shall be converted into one validly issued, fully paid and
nonassessable share of common stock, par value $0.01 per share (the "SURVIVING
CORPORATION COMMON STOCK"), of the Surviving Corporation, to be issued and
deemed to have been issued by the Surviving Corporation automatically and
immediately upon and as of the Effective Time, the capital of the Surviving
Corporation in respect of each share of Surviving Corporation Common Stock to be
an amount equal to the par value thereof as permitted under the DGCL; and such
Outstanding Holdco Sub Common Shares shall be canceled and cease to exist.
2.2 CONVERSION OF NORTEK SHARES.
A. Each of the Outstanding Nortek Common Shares
shall be converted into one validly issued, fully paid and
nonassessable share of Holdco Common Stock; and the Outstanding Nortek
Common Shares shall be canceled and cease to exist.
B. Each of the Outstanding Nortek Special Common
Shares shall be converted into one validly issued, fully paid and
nonassessable share of Holdco Special Common Stock; and the issued and
outstanding shares of Nortek Special Common Shares shall be canceled
and cease to exist.
2.3 NOTIFICATION OF TRANSFER AGENT. Prior to the Closing Date,
Holdco, Holdco Sub and Nortek shall notify their respective transfer agents of
the conversions of Outstanding Nortek Shares and of shares of Holdco Sub Common
Stock and the cancellation of Outstanding Nortek Shares and shares of Holdco Sub
Common Stock and the cancellation of the Outstanding Holdco Common Shares
pursuant to Sections 2.1, 2.2 and 3.6 hereof.
2.4 STOCK CERTIFICATES. Upon and as of the Effective Time, by
virtue of the Merger and without any action on the part of either of the
Constituent Corporations or Holdco, the holders of the respective shares, or any
other person:
A. HOLDCO. The shares of Holdco Common Stock and Holdco
Special Common Stock into which the Outstanding Nortek Shares shall
have been converted pursuant to Section 2.2 hereof shall be represented
and evidenced by the same stock certificates that previously
represented and evidenced such Outstanding Nortek Shares; PROVIDED,
HOWEVER, that Holdco shall have the ability to require any stockholder
thereof to exchange, at any time, such certificates for new stock
certificates representing shares of Holdco Common Stock or Holdco
Special Common Stock, as the case may be, and any stockholder shall
have the ability to require Holdco to exchange, at any time, such
certificates for new stock certificates representing shares of Holdco
Common Stock or Holdco Special Common Stock, as the case may be. To the
extent consistent with law, Holdco may establish time limitations with
respect to any such exchange of certificates and the consequences to
any such holders who fail to consummate any such exchange of
certificates within any such time limits. Subject to the foregoing, any
such exchange of certificates shall have no impact on the ability to
vote such shares or receive dividends or distributions thereon; and
B. NORTEK. Holdco, as the holder of the certificate
(the "HOLDCO SUB COMMON STOCK CERTIFICATE") that immediately prior to
the Effective Time evidences the Outstanding Holdco Sub Common Shares
may, at Holdco's option, surrender the same to the Surviving
Corporation for cancellation, and Holdco shall be entitled to receive
from the Surviving Corporation in exchange therefor a certificate
representing and evidencing the shares of Surviving Corporation Common
Stock into which Holdco's Outstanding Holdco Sub Common Shares shall
have been converted; until surrendered, the Holdco Sub Common Stock
Certificate shall represent and evidence the shares of Surviving
Corporation Common Stock into which the Outstanding Holdco Sub Common
Shares theretofore represented and evidenced thereby shall have been
converted pursuant to Section 2.1 hereof.
ARTICLE III
ADDITIONAL AGREEMENTS
3.1 DIRECTORS AND OFFICERS OF HOLDCO UPON THE EFFECTIVE TIME.
A. DIRECTORS. As of the Effective Time (i) the number of
members constituting the whole Board of Directors of Holdco (the "HOLDCO BOARD")
shall be equal to the number of members constituting the whole Board of
Directors of Nortek (the "NORTEK BOARD") immediately prior to the Effective
Time; and (ii) the Holdco Board shall consist of all the persons serving as
members of the Nortek Board immediately prior to the Effective Time.
B. OFFICERS. As of the Effective Time, the officers of
Holdco shall be the persons serving as officers of Nortek immediately prior to
the Effective Time.
3.2 HOLDCO CERTIFICATE OF INCORPORATION. As of the Effective Time,
the certificate of incorporation of Holdco (the "HOLDCO CHARTER") shall contain
provisions identical to the Nortek Charter immediately prior to the Effective
Time, except that Holdco's name shall be changed to "Nortek Holdings, Inc.".
3.3 HOLDCO BYLAWS. As of the Effective Time, the bylaws of Holdco
shall contain provisions identical to the Nortek Bylaws immediately prior to the
Effective Time (the "HOLDCO BYLAWS"). To that end, prior to the Effective Time,
to the extent necessary to give effect to the intent of the preceding sentence,
Holdco shall take all requisite action to cause the Holdco Bylaws, as the same
theretofore may have been amended, altered, changed and/or supplemented, to be
duly amended and restated in accordance with the DGCL to contain provisions
identical to the Nortek Bylaws immediately prior to the Effective Time, and as
so amended and restated such Holdco Bylaws shall be and remain the Holdco Bylaws
upon and after the Effective Time, unless and until thereafter duly amended,
altered, changed, repealed and/or supplemented in accordance with the DGCL
(which power and right to amend, alter, change, repeal, and/or supplement, at
any time and from time to time after the Effective Time, are hereby expressly
reserved).
3.4 NO NORTEK STOCKHOLDER MEETING; HOLDCO SUB STOCKHOLDER WRITTEN
CONSENT. The parties understand and acknowledge that it is contemplated that the
Merger will be effected in accordance with Section 251(g) of the DGCL and that
no vote of Nortek's stockholders adopting, approving or authorizing this
Agreement and the transactions contemplated hereby, including the Merger, will
be required under the DGCL. Holdco, in its capacity as the sole stockholder of
Holdco Sub, as
promptly as practicable on or after the date hereof, shall execute and deliver
to Holdco Sub a written consent in lieu of a stockholder meeting adopting,
approving and authorizing this Agreement and the transactions contemplated
hereby, including the Merger, in accordance with Section 228 of the DGCL.
3.5 EMPLOYEE AND DIRECTOR NORTEK STOCK OPTIONS. Upon and as of the
Effective Time, to the fullest extent permitted by applicable law, Holdco shall
assume all of Nortek's obligations, and Nortek shall have no further
obligations, with respect to any then-outstanding option (each, if any, a
"NORTEK OPTION") to acquire shares of Nortek Common Stock or Nortek Special
Common Stock issued under any employee or non-employee director stock option
plan, agreement or similar arrangement of Nortek and the due exercise of rights
under any such Nortek Option shall entitle the holder thereof to acquire, upon
the same terms and conditions that were applicable under the corresponding
Nortek Option, a number of shares of Holdco Common Stock, or Holdco Special
Common Stock, as the case may be, identical to the class and number of shares of
Nortek Common Stock or Nortek Special Common Stock, as the case may be, that
were subject to such corresponding Nortek Option (a "HOLDCO OPTION"). Nortek and
Holdco agree to take all corporate and other action as shall be necessary to
effectuate the foregoing, and Nortek shall use its best efforts to obtain, if
required, prior to the Closing Date, such consent of each holder of a Nortek
Option as shall be necessary to effectuate the foregoing. Holdco shall take all
corporate and other action necessary to reserve and make available for issuance
upon the due exercise of rights under the Holdco Options a sufficient number of
shares of Holdco Common Stock and Holdco Special Common Stock, and as soon as
practicable following the Effective Time, shall provide to the record holders of
the Holdco Options appropriate notice of such holder's rights thereunder.
3.6 OUTSTANDING HOLDCO COMMON SHARES. Upon and as of the Effective
Time, Nortek shall surrender to Holdco the certificate representing the
Outstanding Holdco Common Shares, and the Outstanding Holdco Common Shares shall
be cancelled as permitted under the DGCL and shall cease to exist.
3.7 HOLDCO STOCKHOLDER RIGHTS PLAN.
Upon and as of the Effective Time, Holdco shall assume the
rights and obligations of Nortek under the Second Amended and Restated
Rights Agreement, dated as of April 1, 1996, as amended, between EquiServe
Trust Company, N.A., as Rights Agent (the "NORTEK STOCKHOLDER RIGHTS PLAN")
(upon such and as a result of such assumption and the share-for-share
conversion of Nortek Common Stock for Holdco Common Stock pursuant to the
Merger, each Right (as defined in the Nortek Stockholder Rights Plan) to
purchase Nortek Series A Preference Stock will be deemed converted into an
identical right to purchase Holdco Series A Preference Stock.
3.8 OTHER AGREEMENTS, ETC.. At the Effective Time, Holdco shall
assume any obligation of Nortek to deliver or make available shares of Nortek
Common Stock under any instrument, agreement or employee benefit plan, including
option plans, not referred to in this Section 3 to which Nortek or any of its
subsidiaries is a party. Any reference to Nortek Common Stock or Nortek Special
Common Stock under any such instrument, agreement or employee benefit plan,
including option plans, shall be deemed to be a reference to either Holdco
Common Stock or Holdco Special Common Stock, as the case may be, and one share
of Holdco Common Stock shall be issuable in lieu of each share of Nortek Common
Stock and one share of Holdco Special Common Stock shall be issuable in lieu of
each share of Nortek Special Common Stock, in each case, required to be issued
by any such instrument, agreement or employee benefit plan, including option
plans, subject to subsequent adjustment as provided in any such instrument,
agreement or employee benefit plan, including option plans.
3.9 HOLDCO AS SUCCESSOR REGISTRANT TO NORTEK. It is the intent of
the parties hereto and the parties hereto shall ensure that Holdco, as of the
Effective Time, be deemed a "successor issuer" for purposes of Rule 12g-3(a)
under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), so
that Holdco Common Stock and Holdco Special Common Stock shall be deemed
registered under Section 12 of the Exchange Act.
3.10 LISTING OF HOLDCO COMMON STOCK. It is the intent of the
parties hereto and the parties hereto shall ensure that the Holdco Common Stock
to be issued and initially reserved for issuance pursuant to the transactions
contemplated herein be approved for listing, upon official notice of issuance,
by the New York Stock Exchange.
3.11 FILINGS. At the Effective Time, the Surviving Corporation
shall cause a certified copy of this Agreement to be executed and filed with the
Delaware Secretary of State. At the Effective Time, to the extent necessary to
effectuate the amendments to the Surviving Corporation Charter and the Holdco
Charter contemplated by this Agreement, each of the Surviving Corporation and
Holdco shall cause to be filed with the Delaware Secretary of State such
certificates or documents required to give effect thereto.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER.
The respective obligations of each party under this Agreement shall be subject
to the satisfaction at or prior to the Closing of the following conditions:
A. STOCKHOLDER APPROVAL. This Agreement shall have been
approved by the written consent of the holder of the Outstanding Holdco
Sub Common Shares;
B. LEGAL ACTION. No judgment, order, decree, statute,
law, ordinance, rule or regulation, entered, enacted, promulgated,
enforced or issued by any foreign, United States, state or local
governmental entity or municipality or subdivision thereof or court,
tribunal, commission, board, bureau, agency or legislative, executive,
governmental or regulatory authority or agency ( a "GOVERNMENTAL
ENTITY") of competent jurisdiction or other legal restraint or
prohibition shall be in effect preventing the consummation of the
Closing; and
C. NORTEK BOARD DETERMINATION. The Nortek Board shall
not have adversely altered or rescinded its determination that the
Merger and the exchange of shares of capital stock of Nortek for shares
of capital stock of Holdco shall be deemed a transaction described in
Section 351(a) and/or 368(a) of the Code.
4.2 CONDITIONS TO THE OBLIGATIONS OF NORTEK AND HOLDCO SUB TO
EFFECT THE MERGER. The obligations of Nortek and Holdco Sub to effect the Merger
shall be subject to the satisfaction of the condition that immediately prior to
the Effective Time (i) Holdco shall have fully performed its obligations under
Article III hereof, (ii) Holdco shall be deemed a "successor issuer" of Nortek
for purposes of Rule 12g-3(a) under the Exchange Act so that Holdco Common Stock
and Holdco Special Common Stock shall be deemed registered under the Exchange
Act and (iii) Holdco Common Stock, to the extent required by the New York Stock
Exchange, shall have been approved for listing on the New York Stock Exchange,
subject to official notice of issuance.
ARTICLE V
TERMINATION AND AMENDMENT
5.1 AMENDMENT. At any time prior to the Effective Time, this
Agreement may be supplemented, amended or modified by the mutual consent of the
Boards of Directors of the parties hereto and, in the case of Nortek, the
Special Committee, with the consent of K Holdings, Inc. ("K Holdings").
5.2 TERMINATION. This Agreement (i) may be terminated and the
Merger abandoned at any time prior to the Effective Time by action of either the
Nortek Board and the Special Committee, the Holdco Board or the Board of
Directors of Holdco Sub, if such Board of Directors or, in the case of Nortek,
the Special Committee shall determine that for any reason the completion of the
transactions provided for herein would be inadvisable or not in the best
interest of such corporation and its stockholders; PROVIDED that the consent of
K Holdings shall be required for such termination, and (ii) shall automatically
terminate and the Merger abandoned upon the termination of the Recapitalization
Agreement, dated as of June 20, 2002, by and among Nortek, Nortek Holdings and K
Holdings, in accordance with its terms. In the event of such termination and
abandonment, this Agreement shall become void and neither Nortek, Holdco or
Holdco Sub nor their respective stockholders, directors or officers shall have
any liability with respect to such termination and abandonment.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 SEVERABILITY. If any term or other provision of this Agreement
is invalid, illegal, or incapable of being enforced by any rule of law or public
policy, all other terms, conditions, and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal, or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
6.2 ENTIRE AGREEMENT. This Agreement, including the Exhibits
attached hereto, constitutes the entire agreement among the parties regarding
the subject matter hereof, and supercedes all prior agreements and undertakings,
both written and oral, among the parties or of any of them regarding such
subject matter. The parties agree that K Holdings is a third party beneficiary
to this Agreement, including, without limitation, Sections 5.1 and 5.2 hereof.
6.3 GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware.
6.4 HEADINGS. The headings set forth herein are for convenience
only and shall not be used in interpreting the text of the section in which they
appear.
6.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts which together shall constitute a single agreement.
6.6 CERTIFICATES OF SECRETARIES. The certificates of the
respective secretaries of Nortek and Holdco Sub to be attached hereto are hereby
incorporated by reference and shall be deemed a part of this Agreement.
IN WITNESS WHEREOF, Nortek, Holdco and Holdco Sub, pursuant to
the approval and authority duly given by resolutions adopted by their respective
Boards of Directors (in the case of Nortek, upon the recommendation of the
Special Committee), have caused this Agreement to be executed as of the date
first above written by their respective officers thereunto duly authorized.
NORTEK, INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Vice President, Controller and
Chief Financial Officer
NORTEK HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President, Controller and
Chief Financial Officer
NORTEK HOLDINGS MERGER SUB, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President, Controller and
Chief Financial Officer
EXHIBIT A
CERTIFICATE OF THE SECRETARY OF NORTEK, INC.
The undersigned, Xxxxx. X. Xxxxxxxx, Vice President, General
Counsel and Secretary of Nortek, Inc., a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies
that the Agreement and Plan of Merger (the "Agreement") to which this
Certificate is attached has been executed on behalf of the Corporation by Xxxxx
X. Xxxx, Vice President, Controller and Chief Financial Officer , on behalf of
Nortek Holdings Merger Sub, Inc., a Delaware corporation, by Xxxxx X. Xxxx, Vice
President, Controller and Chief Financial Officer, and on behalf of Nortek
Holdings, Inc., a Delaware corporation, by Xxxxx X. Xxxx, Vice President,
Controller and Chief Financial Officer. The Agreement has been adopted by the
Board of Directors of the Corporation pursuant to Section 251(g) of the Delaware
General Corporation Law and the conditions specified in the first sentence of
such subsection have been satisfied.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of this 20th day of November, 2002.
By:
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President, General Counsel
and Secretary
EXHIBIT B
CERTIFICATE OF THE SECRETARY OF
NORTEK HOLDINGS MERGER SUB, INC.
The undersigned, Xxxxx. X. Xxxxxxxx, Vice President, General Counsel and
Secretary of Nortek Holdings Merger Sub, Inc., a Delaware corporation (the
"Corporation"), hereby certifies that the Agreement and Plan of Merger (the
"Agreement") to which this Certificate is attached has been executed on behalf
of the Corporation by Xxxxx X. Xxxx, Vice President, Controller and Chief
Financial Officer, on behalf of Nortek, Inc., a Delaware corporation, by Xxxxx
X. Xxxx, Vice President, Controller and Chief Financial Officer, and on behalf
of Nortek Holdings, Inc., a Delaware corporation, by Xxxxx X. Xxxx, Vice
President, Controller and Chief Financial Officer. The Agreement was duly
adopted by the Board of Directors of the Corporation in accordance with Section
251(g) of the Delaware General Corporation Law and by the written consent of the
sole stockholder of the Corporation in accordance with Section 228 of the
Delaware General Corporation Law.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of this 20th day of November, 2002.
By:
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President, General Counsel
and Secretary
