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Exhibit (c)(2)
BEAR XXXXXXX
September 27, 1995
Nortek, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xx. Xxxxx
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Confidentiality Agreement (the "Agreement")
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Xx. Xxxxx:
In connection with your consideration of a possible transaction (the
"Transaction") with Ply Gem Industries, Inc. (the "Company"), you have requested
the right to review certain non-public information regarding the Company. In
consideration of, and as a condition to, furnishing you with such information
and any other information (whether communicated in writing or communicated
orally) delivered to you by us or our affiliates, directors, officers,
employees, advisors, agents or "controlling persons" (within the meaning of the
Securities Exchange Act of 1934, as amended (the "1934 Act")) (such affiliates
and other persons being herein referred to collectively as our
"Representatives") in connection with your consideration of a Transaction (such
information being herein referred to as "Evaluation Material"), the Company and
you hereby agree as follows:
1. The Evaluation Material will be used solely for the purpose of
evaluating a possible Transaction with the Company involving you or your
affiliates, and unless and until you have completed such Transaction pursuant to
a definitive agreement between you or any such affiliate and the Company, such
Evaluation Material will be kept strictly confidential by you and your
affiliates, directors, officers, employees, advisors, agents or controlling
persons (such affiliates and other persons being herein referred to collectively
as "your Representatives"), except that the Evaluation Material or portions
thereof may be disclosed to those of your Representatives who need to know such
information for the purpose of evaluating a possible Transaction with the
Company (it being understood that prior to such disclosure your Representatives
will be informed of the confidential nature of the Evaluation Material and shall
agree to be bound by this Agreement). You agree to be responsible for any breach
of this Agreement by your Representatives.
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2. The term "Evaluation Material" does not include any information which
(i) at the time of disclosure or thereafter is generally known by the public
(other than as a result of its disclosure by you or your Representatives) or
(ii) was or becomes available to you on a nonconfidential basis from a person
not otherwise bound by a confidentiality agreement with the Company or its
Representatives or is not otherwise prohibited from transmitting the information
to you. As used in this Agreement, the term "person" shall be broadly
interpreted to include, without limitation, any corporation, company, joint
venture, partnership or individual.
3. In the event that you or any of your Representatives receive a request
to disclose all or any part of the information contained in the Evaluation
Material under the terms of a valid and effective subpoena or order issued by a
court of competent jurisdiction, you or such Representative, as the case may be,
agree to (i) immediately notify the Company of the existence, terms and
circumstances surrounding such a request, (ii) consult with the Company on the
advisability of taking legally available steps to resist or narrow such request,
and (iii) if disclosure of such information is required, furnish only that
portion of the Evaluation Material, which in the written opinion of counsel, you
or such Representative are legally compelled to disclose and exercise best
efforts to obtain an order or other reliable assurance that confidential
treatment will be accorded to such information.
4. Unless otherwise required by law in the opinion of your counsel, neither
you nor your Representatives will, without our prior written consent, disclose
to any person either the fact that discussions or negotiations are taking place
concerning a possible Transaction between the Company and you or your
affiliates, or any of the terms, conditions or other facts with respect to any
such possible Transaction, including the status thereof and the fact that the
Evaluation Material has been made available to you.
5. Until the earliest of (i) the consummation by you of a Transaction (ii)
two years from the date of this Agreement, you agree not to initiate or maintain
contact (except for those contacts made in this ordinary course of business)
with any officer, director or employee of the Company regarding the business,
operations, prospects or finances of the Company or the employment of any such
officer, director or employee, except with the express written permission of the
Company. Unless otherwise agreed to by the Company in writing, all (i)
communications regarding any possible Transaction, (ii) requests for additional
information, (iii) requests for facility tours or management meetings, and (iv)
discussions or questions regarding procedures, will be submitted or directed to
Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx").
6. For a period of two years from the date of this Agreement, you and your
Representatives shall not, directly or indirectly, and you shall cause any
person or entity controlled by you not to, without the prior written consent of
the Board of Directors of the Company, (i) in any manner acquire, agree to
acquire or make any proposal to acquire, directly or indirectly, any securities
or property of the Company or any of its affiliates, (ii) propose to enter into,
directly or indirectly, any merger, consolidation, recapitalization, business
combination or other similar transaction involving the Company of any of its
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affiliates, (iii) make, or in any way participate in any "solicitation" of
"proxies" (as such terms are used in the proxy roles of the Securities and
Exchange Commission) to vote, or seek to advise or influence any person with
respect to the voting of any voting securities of the Company or any of its
affiliates, (iv) form, join or in any way participate in a "group" (within the
meaning of Section 13(d)(3) of the 1934 Act with respect to any voting
securities of the Company or any of its affiliates, (v) otherwise act, alone or
in concert with others, to seek to control or influence the management, Board of
Directors or policies of the Company, (vi) disclose any intention, plan or
arrangement inconsistent with the foregoing, or (vii) advise, assist or
encourage any other persons in connection with any of the foregoing. You also
agree during such period not to (x) request the Company (or its
Representatives), directly or indirectly, to amend or waive any provision of
this paragraph (including this sentence), (y) take any action which might
require the Company or any of its affiliates to make a public announcement
regarding this Agreement or the possibility of a merger, consolidation, business
combination or other similar transaction, including without limitation, the
Transaction, or (z) communicate with the Company's shareholders regarding the
subject matter of this Agreement.
7. In addition, you hereby acknowledge that you are aware, and that you
will advise your Representatives who receive the Evaluation Material, that the
United States securities laws prohibit any person who has material, non-public
information concerning the matters which are the subject of this Agreement from
purchasing or selling securities of the Company (and options, warrants and
rights relating thereto) from communicating such information to any other person
under circumstances in which it is reasonably foreseeable that such person,
including, without limitation any of your Representatives) is likely to purchase
or sell such securities.
8. You understand and acknowledge that neither the Company nor Bear Xxxxxxx
is making any representation or warranty, expressed or implied, as to the
accuracy or completeness of the Evaluation Material or any other information
provided to you by the Company or Bear Xxxxxxx. Neither the Company nor Bear
Xxxxxxx nor our respective affiliates or Representatives, nor any of our
respective officers, directors, employees, agents or controlling persons (within
the meaning of the 0000 Xxx) shall have any liability to you or any other person
(including, without limitation, any of your Representatives) resulting from your
use of the Evaluation Material.
9. You agree that unless and until a definitive agreement between the
Company and you with respect to any Transaction has been executed and delivered,
the Company will not be under any legal obligation of any kind whatsoever with
respect to such a Transaction by virtue of (i) this Agreement or (ii) any
written or oral expression with respect to such a Transaction by any of the
Company's directors, officers, employees, agents, advisers or representatives
except, in the case of this letter, for the matters specifically agreed to
herein.
10. You agree that the Company has not granted you any license, copyright,
or similar right with respect to any of the Evaluation Material or any other
information provided to you by the Company or Bear Xxxxxxx.
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11. If you determine that you do not wish to proceed with a Transaction,
you will promptly advise the Company and Bear Xxxxxxx in writing of that
decision. In this case, or in the event that (i) a Transaction is not
consummated by you or (ii) at any time, the Company requests, you will promptly
destroy or deliver to us all of the Evaluation Material, including all copies,
reproductions, summaries, analyses, or extracts thereof or based thereon in your
possession or in the possession of any of your Representatives.
12. You hereby agree to indemnify and hold harmless the Company from any
damage, loss, cost or liability (including legal fees and the cost of enforcing
this indemnity) arising out of or resulting from any unauthorized use or
disclosure by you or your Representatives of the Evaluation Material. You also
acknowledge that money damages would be both incalculable and an insufficient
remedy for any breach of this Agreement by you or your Representatives and that
any such breach would cause the Company irreparable harm. Accordingly, without
prejudice to the rights and remedies otherwise available to the Company, the
Company shall be entitled to equitable relief by way of injunction if you or any
of your Representatives breach or threaten to breach any of the provisions of
this Agreement. You agree to waive, and to cause your Representatives to waive,
any requirement for the securing or posting of any bond in connection with such
remedy.
13. The validity and interpretation of this Agreement shall be governed by,
and construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be fully performed therein (excluding the
conflicts of laws rules). You irrevocably submit to the jurisdiction of any
court of the State of New York or the United States District Court for the
Southern District of the State of New York for the purpose of any suit, action,
or other proceeding arising out of this Agreement, or any of the agreements or
transactions contemplated hereby, which is brought by or against you and (i)
hereby irrevocably agree that all claims in respect of any such suit, action or
proceeding may be heard and determined in any such court, (ii) to the extent
that you have acquired, or hereafter may acquire, any immunity from jurisdiction
of any such court or from any legal process therein, you hereby waive, to the
fullest extent permitted by law, such immunity and (iii) agree not to commence
any action, suit or proceeding relating to this Agreement or any Transaction
except in such court. You hereby waive, and agree not to assert in any such
suit, action or proceeding, in each case, to the fullest extent permitted by
applicable law, any claim that (a) you are not personally subject to the
jurisdiction of any such court, (b) you are immune from any legal process
(whether through service or notice, attachment prior to judgment attachment in
aid of execution, execution or otherwise) with respect to you or your property
or (c) any such suit, action or proceeding is brought in an inconvenient forum.
14. The benefits of this Agreement shall inure to the respective successors
and assigns of the parties hereto and of the indemnified parties hereunder and
their successors and assigns and representatives, and the obligations and
liabilities assumed in this Agreement by the parties hereto shall be binding
upon the parties and their respective successors and assigns and
representatives.
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15. If it is found in a final judgment by a court of competent jurisdiction
(not subject to further appeal) that any term or provision hereof is invalid or
unenforceable, (i) the remaining terms and provision hereof shall be unimpaired
and shall remain in full force and effect and (ii) the invalid or unenforceable
provision or term shall be replaced by a term or provision that is valid and
enforceable and that comes closest to expressing the intention of such invalid
or unenforceable term or provision.
16. This Agreement embodies the entire agreement and understanding of the
parties hereto and supersedes any and all prior agreements, arrangements and
understandings relating to the matters provided for herein. No alteration,
waiver, amendment, change or supplement hereto shall be binding or effective
unless the same is set forth in writing signed by a duly authorized
representative of each party and may be modified or waived only by a separate
letter executed by the Company and you expressly so modifying or waiving such
Agreement.
17. For the convenience of the parties, any number of counterparts of this
Agreement may be executed by the parties hereto. Each such counterpart shall be,
and shall be deemed to be, an original instrument, but all such counterparts
taken together shall constitute one and the same Agreement.
This Agreement is being delivered to you in duplicate. Kindly execute and
return one copy of this letter which will constitute our Agreement with respect
to the subject matter of this letter.
Very truly yours,
BEARS, XXXXXXX & CO. INC.
for itself and on behalf of
Ply Gem Industries, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
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Managing Director
Confirmed and Agreed to
this 27th day of September 1995
Nortek Inc.
/s/ Xxxxx X. Xxxxxxxx
By: ________________________
An authorized officer
Name: Xxxxx X. Dennessy
Title: Vice President
Date: 9/27/95
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June 18, 1997
Nortek, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
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Dear Sirs:
We are in receipt of your proposal letter and draft Merger Agreement
dated June 17, 1997 with respect to a possible acquisition of Ply Gem
Industries, Inc. (the "Company") by Nortek, Inc. ("Nortek"). In connection with
these documents, we draw your attention to paragraph 6 of the Confidentiality
Agreement (the "Agreement") entered into by Nortek, the Company and Bear
Xxxxxxx & Co. Inc. dated September 27, 1995 which states in reference to Nortek
that, "For a period of two years from the date of this Agreement, you and your
Representatives shall not...without the written consent of the Board of
Directors of the Company...make any proposal to acquire...any securities or
property of the Company or any of its affiliates..." Pursuant to the foregoing
provision, your current proposal, which has not been approved by the Board of
Directors (the "Board") of the Company, is in violation of the Agreement. You
have advised us that you had not been able to locate the Agreement and believed
that the relevant provision had expired and therefore that you were not aware
of its violation in making your proposal.
Please countersign a copy of this letter to confirm your agreement
that(a) paragraph 6 of the Agreement shall remain in effect for a period of one
year from the date hereof, (b) the Company's execution of this letter agreement
so extending such period, as well as any decision by the Board to review your
proposal letter or any discussions by the Company or its representatives with
respect thereto, shall not constitute a waiver of any of the rights of the
Company under the Agreement, and (c) any further proposal by you, including any
amendment to the current proposal, will not be made except with the written
consent of the Board in compliance with the provisions of the Agreement.
Sincerely,
PLY GEM INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
Accepted and Agreed:
NORTEK, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Vice President
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June 23, 1997
Via Facsimile
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Nortek, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
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Dear Sirs:
We are returning to you for your records a copy of the letter dated June
18, 1997 from Ply Gem Industries, Inc. (the "Company") to Nortek, Inc.
("Nortek"), signed by the Company, relating to, and extending certain provisions
of, the Confidentiality Agreement (the "Agreement") entered into by Nortek, the
Company and Bear Xxxxxxx & Co. Inc. dated September 27, 1995.
We are also writing to inform you that the Board of Directors of the
Company has authorized the Company to enter into a limited waiver, and the
Company hereby waives, pursuant to paragraph 16 of the Agreement, the provisions
of paragraph 6 of the Agreement solely during the effective period of this
waiver and solely for the purpose and to the extent of permitting Nortek,
notwithstanding the provisions of paragraph 6, to make one or more proposals to
the Board of Directors of the Company to acquire the entire equity interest in
the Company pursuant to a merger, consolidation or other business combination or
similar transaction involving the Company.
This waiver shall be effective from the date hereof until such time as the
Company shall notify Nortek in writing that it has terminated this waiver,
whereupon the provisions of paragraph 6 of the Agreement shall once again be in
full force and effect.
Sincerely,
PLY GEM INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
cc: Xxxxx Xxxxxx, Esq.
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PLY GEM INDUSTRIES, INC.
July 17, 1997
Nortek, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Dear Sirs:
Reference is made to the confidentiality agreement between you and Bear
Xxxxxxx & Co., Inc. for itself and on our behalf, as heretofore amended and
modified (the "Confidentiality Agreement"). This is to confirm that the
Confidentiality Agreement is hereby amended to provide that the term
"Representatives" as used therein shall include "bona fide potential financing
sources." In all other respects the Confidentiality Agreement shall remain in
full force and effect.
Please execute and return a copy of this letter to confirm your agreement
to the foregoing.
PLY GEM INDUSTRIES, INC.
/s/ Xxxxxxx X. Xxxxxxxxx
By: _____________________________
Title: Chairman
Accepted and Agreed as of
the date first above written:
NORTEK, INC.
/s/ Xxxxx X. Xxxxxxxx
By: ________________________
Title: Vice President
