Exhibit (d)(13)
AMENDMENT NO. 2 TO
AGREEMENT AND PLAN OF RECAPITALIZATION
AMENDMENT NO. 2 (the "Amendment"), dated as of November 20, 2002, by
and among Nortek, Inc., a Delaware corporation ("Nortek"), Nortek Holdings,
Inc., a Delaware corporation and a wholly owned subsidiary of Nortek ("Nortek
Holdings"), and K Holdings, Inc., a Delaware corporation ("K Holdings"), to
the Agreement and Plan of Recapitalization, dated as of June 20, 2002, as
amended September 16, 2002, (the "Agreement") by and among Nortek, Nortek
Holdings and K Holdings.
WHEREAS, the parties hereto desire to enter into this Amendment so
as to make certain modifications to the Agreement;
WHEREAS, the Board of Directors of Nortek (upon the authorization
of a Special Committee thereof consisting solely of disinterested
directors) and the Board of Directors of Nortek Holdings have approved this
Amendment and deem it advisable and in the best interests of their
respective companies and stockholders to enter into this Amendment;
NOW, THEREFORE, for good and valuable consideration and in
consideration of the respective representations, warranties, covenants and
agreements set forth in the Agreement, the parties agree as follows:
ARTICLE I
AMENDMENT; REFERENCES
Section 1.1 Definitions; References. Capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to them in the
Agreement. Each reference to "hereof", "herein", "hereunder", "hereby" and
"this Agreement" shall from and after the date hereof refer to the Agreement
as amended by this Amendment. Notwithstanding the foregoing, references to the
date of the Agreement, as amended hereby, shall in all instances remain as
June 20, 2002, and references to "the date hereof" and "the date of the
Agreement" shall continue to refer to June 20, 2002.
Section 1.2 Exhibit Substitution.
(a) Exhibit F to the Agreement is hereby amended by deleting such
exhibit in its entirety and replacing it with Exhibit F attached hereto.
(b) Exhibit G to the Agreement is hereby amended by deleting such
exhibit in its entirety and replacing it with Exhibit G attached hereto.
ARTICLE II
MISCELLANEOUS
Section 2.1 Counterparts. This Amendment may be executed and
delivered (including by facsimile transmission) in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which
when executed and delivered shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
Section 2.2 Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of
the day and year first above written.
NORTEK, INC.
By: /s/ XXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President, General Counsel
and Secretary
NORTEK HOLDINGS, INC.
By: /s/ XXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President, General Counsel
and Secretary
K HOLDINGS, INC.
/s/ XXXXX X. XXXXXXX
By: -------------------------------------
Name: Xxxxx X. Xxxxxxx XX
Title: Vice President
