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EXHIBIT 99.1
FIRST AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
THIS FIRST AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, dated as of July
24, 1997 (the "Agreement"), is made and entered into by Atrium Acquisition
Holdings Corp., a Delaware corporation ("Parent"), Atrium/PG Acquisition Corp.,
a Delaware corporation and a wholly-owned subsidiary of Parent ("Sub"), Xxxxxxx
X. Xxxxxxxxx, Xxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxx (collectively, the
"Stockholders" and individually a "Stockholder"), Ply Gem Industries, Inc., a
Delaware corporation (the "Company"), Nortek, Inc., a Delaware corporation
("Nortek") and NTK Sub, Inc., a Delaware corporation and a wholly-owned
subsidiary of Nortek ("NTK").
WITNESSETH:
WHEREAS, prior to the date hereof Parent, Sub, the Company and, for
limited purposes, Atrium Corporation, entered into that certain Agreement and
Plan of Merger dated as of June 24, 1997 (the "Merger Agreement");
WHEREAS, on July 24, 1997 the Merger Agreement was terminated in
accordance with its terms;
WHEREAS, on July 24, 1997 Nortek, NTK and the Company entered into an
Agreement and Plan of Merger (as such agreement may hereafter be amended,
restated or renewed from time to time, the "Nortek Agreement"), pursuant to
which NTK will commence a tender offer for Shares (as defined below) of the
Company and NTK will be merged with and into the Company;
WHEREAS, as a result of the termination of the Merger Agreement and
Nortek, NTK and the Company entering into the Nortek Agreement, the parties
desire to amend and restate that certain Stockholders Agreement between certain
of the parties hereto dated as of June 24, 1997 in accordance with the terms
and provisions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "Acquisition Proposal" shall mean any proposal or offer
(other than the transactions among the Company, Parent and Sub previously
contemplated in the Merger Agreement) involving the Company or any of its
subsidiaries for, or an inquiry or indication of interest that reasonably could
be expected to lead to: (i) any merger, consolidation, share exchange,
recapitalization, business combination, or other similar transaction, (ii) any
sale, lease, exchange, mortgage, pledge, transfer or other disposition of a
material portion of the assets of the Company and its subsidiaries, taken as a
whole, in a single transaction or series of transactions, or (iii) any tender
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offer or exchange offer for all or any portion of the outstanding shares of
capital stock of the Company or any of its subsidiaries or the filing of a
registration statement under the Securities Act of 1933 in connection
therewith. The term "Acquisition Proposal" shall include the Offer and the
Merger.
(b) "Beneficially Own" or "Beneficial Ownership" with respect
to any securities shall mean having "beneficial ownership" of such securities
(as determined pursuant to Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act")), including pursuant to any agreement,
arrangement or understanding, whether or not in writing. Without duplicative
counting of the same securities by the same holder, securities Beneficially
Owned by a Person shall include securities Beneficially Owned by all other
Persons with whom such Person would constitute a "group" within the meanings of
Section 13(d)(3) of the Exchange Act.
(c) "Merger shall mean the merger contemplated by the Nortek
Agreement.
(d) "Offer" shall mean the cash tender offer contemplated by
the Nortek Agreement for all of the outstanding Shares.
(e) "Offer Price" shall mean the greater of $19.50 or the
highest per share price paid in the Offer.
(f) "Options" shall mean all outstanding options or warrants
(including stock purchase rights and stock awards) to purchase or acquire
Shares and shall include the right under the Options to acquire additional
Shares upon a "change of control" with respect to the Company.
(g) "Person" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated organization or
other entity.
(h) "Purchase Price" shall mean a per share purchase price
equal to $18.75.
(i) "Shares" shall mean shares of common stock, par value
$0.25 per share, of the Company. The term "Shares" shall include, without
limitation, shares of Unvested Stock and any restricted Shares.
(j) "Termination Event " shall mean the first to occur of (i)
the termination of the Nortek Agreement by any party thereto, (ii) the
termination, withdrawal, abandonment or expiration of the Offer without the
Shares of each Stockholder as set forth on Schedule I hereto being accepted for
purchase thereunder (collectively an "Offer Termination Event") or (iii) the
material breach on the part of any party of any of their respective obligations
under Section 2.
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In addition to the terms otherwise defined herein, the following terms
shall have the meaning set forth in Nortek Agreement:
"Company Stockholder Approval";
"Offer Documents";
"Proxy Statement";
"SEC"; and
"Unvested Stock".
2. THE NORTEK OFFER
(a) Each Stockholder hereby, severally and not jointly and
severally, agrees to validly tender (and not to withdraw) pursuant to and in
accordance with the terms of the Offer, not later than one business day prior
to the expiration date of the Offer pursuant to the Nortek Agreement and Rule
14d-2 under the Exchange Act, the number of Shares set forth opposite such
Stockholder's name on Schedule I hereto. Each party hereto acknowledges and
agrees that NTK's obligation to accept for payment Shares purchased pursuant to
the Offer, including the Shares tendered pursuant to the Agreement by the
Stockholders, is subject to the terms and conditions of the Offer. The
obligations of the Stockholders under this Section 2(a) shall terminate upon a
Termination Event (except a Termination Event resulting from a breach by a
Stockholder).
(b) Each Stockholder hereby agrees to permit Nortek and NTK to
publish and disclose in the Offer Documents and, if Company Stockholder
Approval is required under applicable law, the Proxy Statement (including all
documents and schedules filed with the SEC) such Stockholder's identity and
ownership of Shares and the nature of such Stockholder's commitments,
arrangements and understandings under this Agreement.
(c) Immediately after the acceptance of any Shares for payment
pursuant to the Offer, Nortek and NTK shall take such actions as may be
necessary (including, without limitation, the giving to the "Depositary " such
instructions as may be necessary) to cause payment of the aggregate Offer Price
due in respect of the Shares properly tendered hereunder by each Stockholder to
be paid, no later than on the first business day following the date that any
Shares have been accepted for purchase pursuant to the Offer (the "Purchase
Date"), as follows:
(i) The Sub, or its permitted assign, in respect of the
Shares that have been so tendered by each Stockholder and not withdrawn,
shall receive an amount equal to 75% of the excess of (A) the aggregate
Offer Price payable in respect of such Stockholder's Shares so tendered
over (B) the product of (1) the number of Shares so tendered, multiplied
by (2) the Purchase Price; and
(ii) Each Stockholder (or his designee), in respect of
the Shares that have been so tendered by such Stockholder, shall receive
the amount of the aggregate Offer Price payable in respect of the Shares
so tendered after deducting therefrom the amount payable pursuant to
clause (i) above.
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(d) On the Purchase Date, the Company, Nortek, NTK and each of
the Stockholders, severally and not jointly and severally, shall take such
actions as may be necessary for each of the Options set forth next to each
Stockholder's name on Schedule II hereto to be cancelled in consideration of an
amount in cash (subject to any applicable withholding tax), in respect of each
of the Shares subject to each of such Options (including any additional Shares
subject thereto by the reason of the occurrence of a "change of control" in the
Company and Unvested Stock to the extent not tendered in the Offer), equal to
the difference between the per share Offer Price and the per Share exercise
price of each such Option to the extent such difference is a positive number
(such amount as to the Options of each Stockholder being collectively referred
to herein as the "Option Consideration"). On the Purchase Date, Nortek, NTK and
the Company shall pay or shall cause to be paid the Option Consideration due in
respect of each Stockholder's Options as follows:
(i) The Sub, or its permitted assign, in respect of the
Options of each Stockholder, shall receive from the Option Consideration
(A) in respect of Options having a per Share exercise price equal to or
less than the Purchase Price, an amount equal to 75% of the excess of
(x) the product of (1) the Offer Price, multiplied by (2) the number of
Shares subject to such Options, including any "change of control"
Shares, over (y) the product of (1) the number of Shares subject to such
Options, including any "change of control" Shares, multiplied by (2) the
Purchase Price and (B) in respect of Options having a per Share exercise
price greater than the Purchase Price (as set forth on Schedule II
hereto) an amount equal to 100% of the excess of (x) the product of (1)
the Offer Price, multiplied by (2) the number of Shares subject to such
Options, including any "change of control" Shares, over (y) the product
of (1) the number of Shares subject to such Options, including any
"change of control" Shares multiplied by (2) the applicable per Share
exercise price of such Options; and
(ii) Each Stockholder (or his designee), in respect of
the Options of such Stockholder, shall receive the amount of the Option
Consideration payable in respect of the Options of such Stockholder
after deducting therefrom the amount payable pursuant to clause (i)
above, provided, that as to any Stockholder subject to Section 16(a) of
the Exchange Act, payment to such Stockholder of any portion of the
Option Consideration payable under this clause (ii) will be deferred (if
necessary to avoid Section 16(b) liability) until the first date such
payment can be made without liability to such Stockholder under Section
16(b) of the Exchange Act, but shall be paid as soon as practicable
thereafter.
The Company, Nortek and NTK hereby agree to extend to each holder
of Options who is not a party to this Agreement the opportunity to cash out
such Options on the Purchase Date in the manner contemplated in this Section
2(d).
3. OPTIONS.
(a) Each of the Stockholders hereby grants to Sub an
irrevocable option (each, a "Purchase Option" and collectively, the "Purchase
Options") to purchase the number of Shares set forth opposite such
Stockholder's name on Schedule I hereto together with all of the Shares
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(including any additional Shares that may be issuable as a result of a "change
of control") Beneficially Owned by such Stockholder as a result of the
Stockholder's exercise of the Options set forth opposite such Stockholder's
name on Schedule II hereto (collectively, with the Shares described on Schedule
I, the "Option Shares") at a purchase price per share equal to the Purchase
Price. Subject to the last sentence of this Section 3(a), each Purchase Option
is currently exercisable in whole but not in part, and shall remain exercisable
in whole but not in part until 5:00 p.m. (Dallas, Texas time) on the date which
is 120 days after a Termination Event (the "Option Period"), so long as: (i)
all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended (the "HSR Act"), required for the purchase by Sub of the
Option Shares upon such exercise shall have expired or been waived, and (ii)
there shall not be in effect any preliminary or final injunction or other order
issued by any court or governmental, administrative or regulatory agency or
authority prohibiting the exercise of the Purchase Options pursuant to this
Agreement. The Option Period shall be extended for the time period that any
such preliminary injunction or order shall be in effect that otherwise
prohibits the exercise of a Purchase Option. To exercise the Purchase Options,
Sub shall send a written notice (the "Notice") to the Stockholders identifying
the place and date (not less than one nor more than 20 business days from the
date of the Notice) for the closing of such purchase. The Sub shall not
exercise the Purchase Options prior to the occurrence of a Termination Event.
(b) Upon receipt of the Notice to the extent not previously
exercised, contemporaneously with the closing of the purchase of the Option
Shares, each Stockholder shall exercise in full the Options set forth opposite
such Stockholder's name on Schedule II hereto. Subject to Section 2(d), for
convenience purposes, in connection with such exercise of the Options, each
Stockholder hereby gives the Company irrevocable notice of the exercise of his
Options effective contemporaneously with the closing of the purchase of the
Option Shares pursuant to the Purchase Option and the Company hereby
acknowledges the effectiveness of such exercise. Each Stockholder also hereby
irrevocably instructs the Company to issue (and the Company hereby agrees to
issue) the Shares issuable upon such exercise in the name of Sub or its
permitted assignee (and Sub or its permitted assignee shall be deemed the
record owner thereof as of the date of such exercise so long as Sub or its
permitted assignee timely tenders payment of the Purchase Price as provided
herein) and Sub hereby agrees, on behalf of each Stockholder, to pay directly
to the Company (by means of wire transfer or official bank check) such amount
as may be necessary to fund the payment of the exercise price (without regard
to any applicable withholding taxes) due and payable to the Company as a result
of such exercise (with the aggregate amount of the Purchase Price due and
payable to each Stockholder (or his designee) being reduced by the amount of
any such payment made by Sub on behalf of such Stockholder and with the
remaining amount of the Purchase Price otherwise due and payable to each
Stockholder being paid directly to such Stockholder, as may be requested by the
Company net of any applicable withholding taxes required to be paid to the
Company, by means of wire transfer or official bank check). Such payments to
the Company (including such requested withholding taxes) and the Stockholders
shall be made contemporaneously with the exercise of the Purchase Options and
the delivery of the Option Shares thereunder, provided, that as to any
Stockholder subject to Section 16(a) of the Exchange Act, payment to such
Stockholder of any portion of the Purchase Price will be deferred (if necessary
to avoid Section 16(b)
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liability) until the first date such payment can be made without liability to
such Stockholder under Section 16(b) of the Exchange Act, but shall be paid as
soon as practicable thereafter.
(c) In the event that Sub has purchased the Option Shares
pursuant to the Purchase Options, and, within one year after the date of such
purchase, the Sub or any affiliate thereof sells, transfers, exchanges or
disposes of any of the Option Shares in a transaction with a non-affiliate of
Sub (a "Disposition") then, within two business days after the closing of such
Disposition, Sub shall tender and pay to each Stockholder, in immediately
available funds, their respective pro-rata share (calculated based on the
respective amount of the Option Shares purchased from each Stockholder pursuant
to the Purchase Options) of 25% of the Net Profit realized by Sub in connection
with such Disposition. As used in this Section 3(c), Net Profit shall mean an
amount equal to (i) the excess, if any, of the gross amount realized by Sub
from a Disposition over (ii) the aggregate Purchase Price paid with respect to
the Option Shares subject to such Disposition, with such excess being reduced
by the sum of (A) all reasonable out-of-pocket fees, costs and expenses
incurred by Sub and its affiliates in connection with such Disposition
(including, without limitation, all fees, costs and expenses of counsel) which
in no event shall exceed 1% of such Net Profit, and (B) all customary brokerage
fees and commissions, if any, incurred in connection with such Disposition.
(d) In the event that within the Option Period a Stockholder
sells, transfers, exchanges, cancels or disposes of any of his Option Shares or
Options in connection with or as a result of an Acquisition Proposal (an
"Alternative Disposition") other than pursuant to Section 2 then, within two
business days after the closing of such Alternative Disposition, such
Stockholder shall tender and pay to Sub, in immediately available funds, its
pro-rata share of 75% of the Net Profit realized by such Stockholder in
connection with such Alternative Disposition. As used in this Section 3(d), Net
Profit shall mean (i) in the case of outstanding Option Shares, an amount equal
to the excess, if any, of (A) the gross amount realized by such Stockholder
from an Alternative Disposition of outstanding Option Shares, over (B) the
product of (x) the number of such Option Shares subject to such Alternative
Disposition, multiplied by (y) the Purchase Price and (ii) in the case of
Options, an amount equal to the excess, if any, of (A) the product of (x) the
gross underlying per Share price otherwise paid in the Alternative Disposition
and used in calculating the amount so realized by such Stockholder with respect
to such Options in connection with such Alternative Disposition, multiplied by
(y) the number of Option Shares subject to such Options, over (B) the product
of (x) the number of Option Shares subject to such Options, multiplied by (y)
the Purchase Price, with the aggregate of such excesses being reduced by the
sum of (1) all reasonable out-of-pocket fees, costs and expenses incurred by
such Stockholder in connection with such Alternative Disposition, (including,
without limitation, all fees, costs and expenses of counsel, but excluding any
withholding taxes) which in no event shall exceed 1% of such Net Profit, and
(2) all customary brokerage fees and commissions, if any, incurred in
connection with such Alternative Disposition.
(e) As may be requested by Sub subsequent to a Termination
Event but prior to the expiration of the Option Period each Stockholder shall
tender his Shares as set forth on Schedule I hereto pursuant to any tender
offer being made (at a per Share price greater than the Purchase Price) in
connection with an Acquisition Proposal.
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(f) The Purchase Options shall terminate in full upon the
consummation of the transactions (including, the tendering of all payments to
be made thereunder) contemplated by Section 2.
4. COVENANTS, REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER.
(a) Each Stockholder hereby, severally and not jointly and
severally, represents and warrants to the other parties hereto as follows:
(i) OWNERSHIP BY SHARES. Such Stockholder is either (A)
the record and Beneficial Owner of, or (B) the Beneficial Owner but not
the record holder of, the number of Shares and Options respectively set
forth opposite the Stockholder's name on Schedule I and II hereto. As of
June 24, 1997, the Shares and Options respectively set forth opposite
such Stockholder's name on Schedules I and II hereto constitute all of
the Shares and Options owned of record or Beneficially Owned by such
Stockholder. Such Stockholder has sole power to issue instructions with
respect to the matters set forth in Sections 2 and 3 hereof, sole power
of disposition, sole power of conversion, sole power to demand appraisal
rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Shares set forth
opposite such Stockholder's name on Schedule I hereto and all of the
Options set forth opposite such Stockholder's name on Schedule II
hereto, with no material limitations, qualifications or restrictions on
such rights, subject to applicable securities laws and the terms of this
Agreement.
(ii) POWER; BINDING AGREEMENT. Such Stockholder has the
legal capacity, power and authority to enter into and perform all of
such Stockholder's obligations under this Agreement. This Agreement has
been duly and validly executed and delivered by such Stockholder and
constitutes a valid and binding agreement of such Stockholder,
enforceable against such Stockholder in accordance with its terms. There
is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which such Stockholder is trustee whose consent
is required for the execution and delivery of this Agreement or the
consummation by such Stockholder of the transactions contemplated
hereby. If such Stockholder is married and such Stockholder's Shares or
Options constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and
binding agreement of, such Stockholder's spouse, enforceable against
such person in accordance with its terms.
(iii) NO CONFLICTS. Except for filings under the Exchange
Act or if applicable the HSR Act (as to which, to the extent necessary,
each Stockholder shall promptly make all such filings and use all
reasonable efforts to respond to any requests for additional
information) (A) no filing with, and no permit, authorization, consent
or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by such Stockholder and
the consummation by such Stockholder of the transactions contemplated
hereby, except where the failure to obtain such consent, permit,
authorization, approval or filing would not interfere with such
Stockholder's ability to
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perform its obligations hereunder, and (B) none of the execution and
delivery of this Agreement by such Stockholder, the consummation by such
Stockholder of the transactions contemplated hereby or compliance by
such Stockholder with any of the provisions hereof shall (1) conflict
with or result in any breach of any applicable organizational documents
applicable to such Stockholder, (2) result in a violation or breach of,
or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or
other instrument or obligation of any kind to which such Stockholder is
a party or by which such Stockholder or any of such Stockholder's
properties or assets may be bound, or (3) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation
applicable to such Stockholder or any of such Stockholder's properties
or assets, in each such case except to the extent that any conflict,
breach, default or violation would not interfere with the ability of
such Stockholder to perform its obligations hereunder.
(iv) NO ENCUMBRANCES. Except as required by Sections 2
and 3 and liens or security interests that will be released at the
closing, if any, of a purchase under the Purchase Options or a closing
under Section 2 as may be applicable, such Stockholder's Shares and the
certificates representing such Shares are now, and at all times during
the term hereof will be, held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever.
(v) NO FINDER'S FEES. No broker, investment banker,
financial adviser or other person is entitled to any broker's, finder's,
financial adviser's or other similar fee or commission in connection
with the transactions contemplated hereby based upon arrangements made
by or on behalf of such Stockholder.
(vi) NO SOLICITATION. Each Stockholder shall, in its
capacity as such, comply with the terms of Section 5.1(e) of the Nortek
Agreement.
(vii) RESTRICTION ON TRANSFER, PROXIES AND NON-
INTERFERENCE. During the Option Period, except as required by this
Agreement, such Stockholder shall not, directly or indirectly without
the consent of Sub: (A) offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent
to the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of such Stockholder's
Shares, Options or any interest therein, (B) grant any proxies of powers
of attorney, deposit any Shares into a voting trust or enter into a
voting agreement with respect to any Shares, or (C) exercise any of his
Options (except to prevent the impending expiration thereof), or (D)
take any action that could reasonably be expected to have the effect of
preventing or disabling such Stockholder from performing such
Stockholder's obligations
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under this Agreement, except in the case of clause (A) or (D) any
transfer of Shares that occurs by operation of law.
(viii) WAIVER OF APPRAISAL RIGHTS. Such Stockholder hereby
waives any rights of appraisal or rights to dissent from the Merger that
the Stockholder may have.
(ix) FURTHER ASSURANCES. From time to time, at the other
party's request and without further consideration, each party hereto
shall execute and deliver such additional documents as may be necessary
or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
(b) Parent and Sub hereby represents and warrants to each of
the other parties hereto as follows:
(i) ORGANIZATION, STANDING AND CORPORATE POWER. Each of
Parent and Sub is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, with adequate
corporate power and authority to own its properties and carry on its
business as presently conducted. Each of Parent and Sub has the
corporate power and authority to enter into and perform all of its
obligations under this Agreement and to consummate the transactions
contemplated hereby.
(ii) NO CONFLICTS. Except, if applicable, for filings
under the HSR Act, (A) no filing with, and no permit, authorization,
consent or approval of, any state or federal pubic body or authority is
necessary for the execution of this Agreement by either Parent or Sub
and the consummation by Parent and Sub of the transactions contemplated
hereby, except where the failure to obtain such consent, permit,
authorization, approval or filing would not interfere with its ability
to perform its obligations hereunder, and (B) none of the execution and
delivery of this Agreement by Parent or Sub, the consummation by Parent
or Sub of the transactions contemplated hereby or compliance by Parent
and Sub with any of the provisions hereof shall (1) conflict with or
result in any breach of any applicable organizational documents
applicable to Parent or Sub, (2) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default
(or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or
other instrument or obligation of any kind to which Parent or Sub is a
party or by which Parent or Sub or any of Parent's or Sub's properties
or assets may be bound, or (3) violate any order, writ, injunction,
decree, judgment, order, statute, rule or regulation applicable to
Parent or Sub or any of Parent's or Sub's properties or assets, in each
such case except to the extent that any conflict, breach, default or
violation would not interfere with the ability of Parent or Sub to
perform its obligations hereunder.
(iii) EXECUTION, DELIVERY AND PERFORMANCE BY PARENT AND
SUB. The execution, delivery and performance of this Agreement and the
consummation of the
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transactions contemplated hereby have been duly authorized by the Board
of Directors of Parent and Sub, and each of Parent and Sub has taken all
other actions required by law, its Certificate of Incorporation and its
Bylaws in order to consummate the transactions contemplated by this
Agreement. This Agreement constitutes the valid and binding obligations
of Parent and Sub and is enforceable in accordance with its terms,
except as enforceability may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally.
(c) Nortek and NTK hereby represents and warrants to each of
the other parties hereto as follows:
(i) ORGANIZATION, STANDING AND CORPORATE POWER. Each of
Nortek and NTK is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, with adequate
corporate power and authority to own its properties and carry on its
business as presently conducted. Each of Nortek and NTK has the
corporate power and authority to enter into and perform all of its
obligations under this Agreement and to consummate the transactions
contemplated hereby.
(ii) NO CONFLICTS. Except, if applicable, for filings
under the Exchange Act and the HSR Act, (A) no filing with, and no
permit, authorization, consent or approval of, any state or federal
pubic body or authority is necessary for the execution of this Agreement
by either Nortek or NTK and the consummation by Nortek and NTK of the
transactions contemplated hereby, except where the failure to obtain
such consent, permit, authorization, approval or filing would not
interfere with its ability to perform its obligations hereunder, and (B)
none of the execution and delivery of this Agreement by Nortek or NTK,
the consummation by Nortek or NTK of the transactions contemplated
hereby or compliance by Nortek and NTK with any of the provisions hereof
shall (1) conflict with or result in any breach of any applicable
organizational documents applicable to Nortek or NTK, (2) result in a
violation or breach of, or constitute (with or without notice or lapse
of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which Nortek
or NTK is a party or by which Nortek or NTK or any of Nortek's or NTK's
properties or assets may be bound, or (3) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation
applicable to Nortek or NTK or any of Nortek's or NTK's properties or
assets, in each such case except to the extent that any conflict,
breach, default or violation would not interfere with the ability of
Nortek or NTK to perform its obligations hereunder.
(iii) EXECUTION, DELIVERY AND PERFORMANCE BY NORTEK AND
NTK. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of Nortek and NTK, and each of
Nortek and NTK has taken all other actions required by law, its
Certificate of Incorporation and its Bylaws in order to consummate the
transactions
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contemplated by this Agreement. This Agreement constitutes the valid and
binding obligations of Nortek and NTK and is enforceable in accordance
with its terms, except as enforceability may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
or affecting creditors' rights generally.
(d) The Company hereby represents and warrants to each of the
other parties hereto as follows:
(i) ORGANIZATION, STANDING AND CORPORATE POWER. The
Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, with adequate
corporate power and authority to own its properties and carry on its
business as presently conducted. The Company has the corporate power and
authority to enter into and perform all of its obligations under this
Agreement and to consummate the transactions contemplated hereby.
(ii) NO CONFLICTS. Except, if applicable, for filings
under the HSR Act, (A) no filing with, and no permit, authorization,
consent or approval of, any state or federal pubic body or authority is
necessary for the execution of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby,
except where the failure to obtain such consent, permit, authorization,
approval or filing would not interfere with its ability to perform its
obligations hereunder, and (B) none of the execution and delivery of
this Agreement by the Company, the consummation by the Company of the
transactions contemplated hereby or compliance by the Company with any
of the provisions hereof shall (1) conflict with or result in any breach
of any applicable organizational documents applicable to the Company,
(2) result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation
of any kind to which the Company is a party or by which the Company or
any of the Company's properties or assets may be bound, or (3) violate
any order, writ, injunction, decree, judgment, order, statute, rule or
regulation applicable to the Company or any of the Company's properties
or assets, in each such case except to the extent that any conflict,
breach, default or violation would not interfere with the ability of the
Company to perform its obligations hereunder.
(iii) EXECUTION, DELIVERY AND PERFORMANCE BY THE COMPANY.
The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of the Company, and the Company has
taken all other actions required by law, its Certificate of
Incorporation and its Bylaws in order to consummate the transactions
contemplated by this Agreement. This Agreement constitutes the valid and
binding obligations of the Company and is enforceable in accordance with
its terms, except as enforceability may be subject to
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bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally.
5. STOP TRANSFER. Each Stockholder agrees with, and covenants to,
Sub that during the Option Period such Stockholder shall not request that the
Company register (and the Company agrees not to register) the transfer (book-
entry or otherwise) of any certificate or uncertificated interest representing
any of such Stockholder's Shares, unless such transfer is made in compliance
with this Agreement.
6. RECAPITALIZATION. In the event of a stock dividend or
distribution, or any change in the Shares by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged and the Purchase Price
shall be amended as may be appropriate to reflect such event.
7. MERGER AGREEMENT. Parent, Sub and the Company hereby agree that
the provisions of Section 6.11 (insofar as it relates to the transactions
contemplated by this Agreement) and Section 9.2 of the Merger Agreement remain
in full force and effect notwithstanding the termination of the Merger
Agreement and that such Sections of the Merger Agreement are by reference
incorporated herein and made a part hereof. In addition, the Company hereby
acknowledges that the transactions contemplated herein have been previously
approved by its Board of Directors for purposes of Section 203 of the Delaware
General Corporation Law, as amended. Atrium Corporation, Parent and Sub hereby
acknowledge that the Merger Agreement has been properly terminated by the
Company in accordance with its terms.
8. STOCKHOLDER CAPACITY. No person executing this Agreement who is
or becomes during the term hereof a director or officer of the Company makes
any agreement or understanding herein in his or her capacity as such director
or officer and nothing herein shall limit or affect any action taken by such
person in his or her capacity as a director or officer. Each Stockholder signs
solely in his or her capacity as the record and beneficial owner of, or the
trustee of a trust whose beneficiaries are the beneficial owners of, such
Stockholder's Shares or Options.
9. OTHER ACTIONS. Except as contemplated by Section 2 or by
operation of law, during the Option Period no Stockholder may take any action
(including, without limitation, any cashless exercise of any Option except with
respect to an Option that would otherwise expire unless so exercised) or enter
into any agreement or waiver, which would adversely affect Sub's rights under
the Purchase Options or the benefits to be derived by Sub from an exercise of
the Purchase Options.
10. Release. Effective as of an Acquisition Event, each of the
Company, Nortek and NTK hereby releases and discharges Parent, Sub and Atrium
Corporation, together with their respective officers, directors, employees,
representatives and agents (collectively the "Released Parties") from any and
all liabilities, claims, causes of actions or demands of any nature whatsoever
(including, without limitation, arising under the Merger Agreement) that any of
them may have or
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claim to have (including, without limitation, the reservation made in that
certain letter of July 24, 1997 from the Company to Parent, Sub and Atrium
Corporation giving notice of the Company's termination of the Merger Agreement)
which are directly or indirectly attributable to or otherwise related to the
payment of $12,000,000 made by the Company on July 24, 1997 pursuant to that
certain letter of July 24, 1997 from the Parent to the Company, regardless of
whether any such liabilities, claim, cause of action or demand is known or
unknown, matured or contingent or liquidated or unliquidated. Prior to the
occurrence of an Offer Termination Event, the Company agrees not to initiate
any proceedings against any of the Released Parties with respect to any of the
liabilities, claims, causes of actions or demands described in the foregoing
release. Notwithstanding any provision contained herein to the contrary, the
provisions of this Section 10 shall remain in full force and effect and shall
survive any termination or expiration of this Agreement and the consummation of
any of the transactions contemplated herein. As used in this Section 10, an
"Acquisition Event" shall mean the first to occur of (i) the acceptance of any
Shares for payment pursuant to the Offer, (ii) the consummation of the Merger
or (iii) the consummation of any Acquisition Proposal with Nortek of any of its
affiliates.
11. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
(b) CERTAIN EVENTS. Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to such Stockholder's
Shares and Options and shall be binding upon any person or entity to which
legal or beneficial ownership of such Shares or Options shall pass, whether by
operation of law or otherwise, including, without limitation, such
Stockholder's heirs, guardians, administrators or successors. Notwithstanding
any transfer of Shares or Options, the transferor shall remain liable for the
performance of all obligations under this Agreement of the transferor.
(c) ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
parties, provided that Parent may assign, in its sole discretion, its rights
and obligations hereunder to any affiliate of Parent or, after a Termination
Event, to any person making an Acquisition Proposal, but no such assignment
shall relieve Parent of its obligations hereunder if such assignee does not
perform such obligations.
(d) AMENDMENTS, WAIVERS, ETC. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
parties hereto; provided that either Schedule I or II hereto may be
supplemented by Parent by adding the name and other relevant information
concerning any stockholder of the Company who agrees to be bound by the terms
of this Agreement without the agreement of any other party hereto, and
thereafter such added stockholder shall be treated as a "Stockholder" for all
purposes of this Agreement; provided further that after a Termination Event,
this Agreement may be amended, changed, supplemented, waived or otherwise
modified or
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terminated without the consent of, or the execution of any written agreement on
the part of, Nortek and NTK, so long as such amendment, change, supplement,
waiver or modification does not increase the obligations of either Nortek or
NTK hereunder.
(e) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram,
telex or telecopy, or by mail (registered or certified mail, postage prepaid,
return receipt requested) or by any courier service, such as Federal Express,
providing proof of delivery. All communications hereunder shall be delivered to
the respective parties at the following addresses or the addresses set forth on
the signature pages hereto:
If to Xx. Xxxxxxxxx: Xxxxxxx X. Xxxxxxxxx
At his home address as supplementally
provided to the parties hereto.
copy to: Squadron Ellenoff Plesent & Xxxxxxxxx
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
If to Xx. Xxxxxxx: Xxxxxxx X. Xxxxxxx
At his home address as supplementally
provided to the parties hereto.
copy to: Squadron Ellenoff Plesent & Xxxxxxxxx
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
If to Xx. Xxxxxx: Xxxx X. Xxxxxx
At his home address as supplementally
provided to the parties hereto.
copy to: Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxx
Telecopy: (000) 000-0000
If to Parent or Sub: Atrium Acquisition Holdings Corp.
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and
Atrium/PG Acquisition Corp.
0000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxx 0000 Xxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
copies to: Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxxxx
Telecopy: (000) 000-0000
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx, Xx.
Telecopy: (000) 000-0000
Xxxxxx & Xxxxxx L.L.P.
3700 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attn: A. Xxxxxxx Xxxxx
Telecopy: (000) 000-0000
If to the Company: Ply Gem Industries, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
copy to: Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
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16
If to Nortek or NTK: Nortek, Inc. and NTK Sub, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
copy to: Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) SEVERABILITY. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(g) SPECIFIC PERFORMANCE. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or
in equity.
(h) REMEDIES CUMULATIVE. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law
or in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(i) NO WAIVER. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by
such party of its right to exercise any such or other right, power or remedy or
to demand such compliance.
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(j) NO THIRD PARTY BENEFICIARIES. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto; provided that, in the event of a
Stockholder's death, the benefits to be received by the Stockholder hereunder
shall inure to his successors and heirs.
(k) GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
(l) JURISDICTION. Each party hereby irrevocably submits to the
exclusive jurisdiction of the Court of Chancery in the State of Delaware in any
action, suit or proceeding arising in connection with this Agreement, and
agrees that any such action, suit or proceeding shall be brought only in such
court (and waives any objection based on forum non conveniens or any other
objection to venue therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this paragraph (l) and
shall not be deemed to be a general submission to the jurisdiction of said
Court or in the State of Delaware other than for such purposes. Each party
hereto hereby waives any right to a trial by jury in connection with any such
action, suit or proceeding.
(m) DESCRIPTIVE HEADINGS. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(n) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same Agreement. This
Agreement shall not be effective as to any party hereto until such time as this
Agreement or a counterpart thereof has been executed and delivered by each
party hereto.
(o) PRIOR AGREEMENT. This agreement is executed and delivered
as an Amendment and Restatement of that certain Stockholders Agreement dated as
of June 24, 1997, between the parties hereto and this Agreement shall supersede
such prior agreement in its entirety.
(p) TRUST FUNDS. In the event that any party hereto should
receive any funds that are to be paid to another party pursuant to the terms of
this Agreement, then the receiving party shall hold such funds in trust for the
benefit of the party entitled to receive such funds and shall promptly pay such
funds to the party entitled to receive such funds in accordance with this
Agreement.
12. ACKNOWLEDGMENT BY COMPANY. The parties hereby acknowledge and
agree that the acceptance of any Shares for payment pursuant to the Offer or
other tender offer for a majority of the outstanding Shares will constitute a
"change of control" under the terms of the various agreements governing the
Options set forth on Schedule II hereto and that for purposes of the
transactions contemplated by this Agreement all restrictions on transferability
and vesting applicable to any of the Unvested Stock or restricted Shares on
Schedule I hereto shall be terminated.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on this ______ day of July, 1997.
---------------------------------------------
Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Xxxx X. Xxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxxx
Atrium Acquisition Holdings Corp.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Atrium/PG Acquisition Corp.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Ply Gem Industries, Inc.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
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Nortek, Inc.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
NTK Sub, Inc.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
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SCHEDULE I TO
STOCKHOLDERS AGREEMENT
NAME OF STOCKHOLDER NUMBER OF SHARES OWNED
--------------------------------------------------------------------- ------------------------------------
Xxxxxxx X. Xxxxxxx 1,337
Xxxx X. Xxxxxx 3,747
Xxxxxxx X. Xxxxxxxxx 1,130,177
Xxxxxxx X. Xxxxxxxxx, Restricted Stock 100,000
Excludes shares owned by pension/profit share/401(K)/TRA Plans.
21
SCHEDULE II TO
STOCKHOLDERS AGREEMENT
OPTION NUMBER OF OPTION
NAME DATE SHARES PRICE TYPE
--------------------------------- ------------- --------------- ------------------ -------
Xxxxxxx X. Xxxxxxx 01/28/88 8,000 $10.750 ISO
01/28/88 75,000 10.750 NQSO
01/28/88 75,000 10.750 Note 1
01/26/89 75,000 12.250 NQSO
01/26/89 75,000 12.250 Note 1
01/26/89 8,000 12.250 ISO
01/23/92 10,000 9.750 ISO
11/24/92 75,000 10.250 NQSO
01/29/93 75,000 12.000 NQSO
05/20/93 9,000 10.375 ISO
11/07/94 50,000 19.125 NQSO
Xxxxxxx X. Xxxxxxxxx 01/28/88 300,000 10.750 NQSO
01/28/88 300,000 10.750 Note 1
01/26/89 300,000 12.250 NQSO
01/26/89 300,000 12.250 Note 1
11/24/92 325,000 10.250 NQSO
01/29/93 513,500 12.000 NQSO
05/20/93 9,000 10.375 ISO
11/07/94 750,000 19.125 NQSO
08/20/96 750,000 12.500 NQSO
Note 1. Options on Change of Control
Xxxx X. Xxxxxx 06/02/95 6,250 16.000 ISO
06/02/95 293,750 16.000 NQSO
10/27/95 250,000 16.000 NQSO
01/02/96 6,060 16.500 ISO
01/02/96 210,782 16.500 NQSO
08/20/96 33,158 12.500 NQSO
08/20/96 116,842 12.500 NQSO
