TENDER AND SUPPORT AGREEMENT
TENDER
AND SUPPORT AGREEMENT (this “Agreement”)
dated
as of May 14, 2007, among Linear LLC, a California limited liability company
(“Purchaser”),
and
Xxxx Xxxxxxxxx (the “Securityholder”).
WHEREAS,
as of the date hereof, the Securityholder is the holder of 197,172 Shares (all
such directly owned Shares that are outstanding as of the date hereof, together
with any Shares that are hereafter issued to or otherwise acquired or owned
by
the Securityholder prior to the termination of this Agreement (including
pursuant to any exercise of Company Options or exercise or conversion of other
securities, or stock dividend, distribution, split-up, recapitalization,
combination or similar transaction) being hereinafter referred to as the
“Subject
Shares”);
WHEREAS,
as a condition to their willingness to enter into the Agreement and Plan of
Merger, dated as of the date hereof (the “Merger
Agreement”),
among
Purchaser, Acquisition Sub 2007-2, Inc., a Massachusetts corporation and
wholly-owned subsidiary of Purchaser (“Merger
Sub”),
and
Nortek, Inc., a Delaware corporation, and Target, Inc., a Massachusetts
corporation (the “Company”),
Purchaser has required that the Securityholder, and in order to induce Purchaser
to enter into the Merger Agreement the Securityholder (in the Securityholder’s
capacity as a holder of the Subject Shares) has agreed to, enter into this
Agreement; and
WHEREAS,
capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Merger Agreement;
NOW,
THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth below, the parties hereto agree
as follows:
ARTICLE
1.
AGREEMENT
TO TENDER
1.01 Agreement
to Tender.
The
Securityholder shall validly tender or cause to be tendered in the Offer all
of
the Securityholder’s Subject Shares pursuant to and in accordance with the terms
of the Offer. Prior to the expiration of the Offer, the Securityholder shall
(i)
deliver
to the depositary designated in the Offer (the “Depositary”)
(A)
a
letter of transmittal with respect to his Subject Shares complying with the
terms of the Offer, (B)
a
certificate or certificates representing the Subject Shares or an “agent’s
message” (or such other evidence, if any, of transfer as the Depositary may
reasonably request) in the case of a book-entry transfer of any uncertificated
Subject Shares and (C)
all
other documents or instruments required to be delivered by other stockholders
of
the Company pursuant to the terms of the Offer, and/or (ii)
instruct his broker or such other Person that is the holder of record of any
Subject Shares beneficially owned by the Securityholder to tender such Subject
Shares pursuant to and in accordance with the terms of the Offer. The
Securityholder agrees that once his Subject Shares are tendered into the Offer,
he will not withdraw any of such Subject Shares from the Offer, unless and
until
(i)
the
Offer shall have been terminated in accordance with the terms of the Merger
Agreement or (ii)
this
Agreement shall have been terminated in accordance with Section 5.03
hereof.
ARTICLE
2.
REPRESENTATIONS
AND WARRANTIES OF THE SECURITYHOLDER
The
Securityholder represents and warrants to Purchaser as to himself,
that:
2.01. Authorization;
Binding Agreement.
The
execution, delivery and performance by the Securityholder of this Agreement
and
the consummation of the transactions contemplated hereby are within his legal
capacity and requisite powers. This Agreement constitutes a legal, valid and
binding agreement of the Securityholder enforceable against the Securityholder
in accordance with its terms, subject to the Enforceability
Exceptions.
2.02. Non-Contravention.
The
execution, delivery and performance by the Securityholder of this Agreement
and
the consummation of the transactions contemplated hereby do not and will not
(a)
violate
any Law applicable to the Securityholder, (b)
require
any Consent or other action by any person under, constitute a default under,
or
give rise to any right of termination, cancellation or acceleration or to a
loss
of any benefit to which the Securityholder is entitled under any provision
of
any agreement or other instrument binding on the Securityholder or (c)
result
in the imposition of any Encumbrance on any asset of the Securityholder, in
each
case such as would impair or adversely affect such Securityholder’s ability to
perform his obligations hereunder. No Consent from or with any Governmental
Authority is required in connection with the execution and delivery of this
Agreement by the Securityholder or the consummation by the Securityholder of
the
transactions contemplated hereby, except for applicable requirements, if any,
under the Exchange Act and any other applicable state or federal securities
laws
and for such Consents the absence of which would not impair or adversely affect
the Securityholder’s ability to perform his obligations hereunder.
2.03. Ownership
of
Subject Shares; Total Shares.
The
Securityholder is the record or beneficial owner (as defined in Rule 13d-3
under
the Exchange Act) of his Subject Shares and, as of the date of Merger Sub’s
acceptance of the Shares in the Offer, such Subject Shares will be free and
clear of any Encumbrance and any other limitation or restriction (including
any
restriction on the right to vote or otherwise transfer such Subject Shares),
except as provided hereunder or pursuant to any applicable restrictions on
transfer under the Securities Act. As of the date hereof, the Securityholder
does not own, beneficially or otherwise, any Shares, Company Options or other
securities of the Company other than (x)
the
number of Shares set forth above in the first “WHEREAS” clause and (y)
the
Company Options set forth opposite the Securityholder’s name on Section 2.2(f)
of the Company Disclosure Schedule.
2.04. Voting
Power.
The
Securityholder has full voting power, with respect to his Subject Shares, and
full power of disposition, full power to issue instructions with respect to
the
matters set forth herein, and full power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of his Subject Shares.
None of the Securityholder’s Subject Shares are subject to any voting trust or
other agreement or arrangement with respect to the voting of such shares, except
as provided hereunder.
2.05. Reliance
By Purchaser.
The
Securityholder understands and acknowledges that Purchaser is entering into
the
Merger Agreement in reliance upon the Securityholder’s execution and delivery of
this Agreement.
ARTICLE
3.
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
Purchaser
represents and warrants to the Securityholder that:
3.01. Authorization;
Binding Agreement.
Purchaser
is a limited liability company duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, and the execution,
delivery and performance by Purchaser of this Agreement and the consummation
by
it of the transactions contemplated hereby are within its corporate or other
organizational powers and have been duly authorized by all necessary corporate
or other organizational actions on the part of Purchaser. This Agreement
constitutes a legal, valid and binding agreement of Purchaser, enforceable
against Purchaser in accordance with its terms, subject to the Enforceability
Exceptions.
3.02. Non-Contravention.
The
execution, delivery and performance by Purchaser of this Agreement and the
consummation by it of the transactions contemplated hereby do not and will
not
(a)
violate
any Law applicable to Purchaser, (b)
require
any Consent or other action by any person under, constitute a default under,
or
give rise to any right of termination, cancellation or acceleration or to a
loss
of any benefit to which Purchaser is entitled under any provision of any
agreement or other instrument binding on Purchaser or (c)
result
in the imposition of any Encumbrance on any asset of Purchaser, in each case
such as would impair or adversely affect Purchaser’s ability to perform its
obligations hereunder. No Consent from or with any Governmental Authority is
required in connection with the execution and delivery of this Agreement by
Purchaser or the consummation by it of the transactions contemplated hereby,
except for applicable requirements, if any, under the Exchange Act and any
other
applicable state or federal securities laws and for such Consents the absence
of
which would not impair or adversely affect Purchaser’s ability to perform its
obligations hereunder.
ARTICLE
4.
ADDITIONAL
COVENANTS OF THE SECURITYHOLDER
The
Securityholder hereby covenants and agrees as to himself, that:
4.01. Voting
of
Subject Shares.
At
every
meeting of the stockholders of the Company called, and at every adjournment
or
postponement thereof, the Securityholder shall, or shall cause the holder of
record on any applicable record date to, vote his Subject Shares (to the extent
that any of the Securityholder’s Subject Shares are not purchased in the Offer)
(a)
in
favor of the adoption of the Merger Agreement and the transactions contemplated
thereby, (b)
against
(i)
any
agreement or Company action regarding any Company Takeover Proposal,
(ii)
any
liquidation, dissolution, recapitalization, extraordinary dividend or other
significant corporate reorganization of the Company or any of its subsidiaries
(iii)
any
agreement or Company action that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or (iv)
any
agreement or Company action that would reasonably be expected to prevent,
impede, interfere with or delay the transactions contemplated by the Merger
Agreement or that would reasonably be expected to dilute the benefits to
Purchaser and its affiliates of the transactions contemplated by the Merger
Agreement and (c)
in
favor of any other matter necessary for consummation of the transactions
contemplated by the Merger Agreement, which is considered at any such meeting
of
stockholders.
4.02. Irrevocable
Proxy.
In
order
to secure the performance of the Securityholder’s obligations under this
Agreement, by entering into this Agreement, the Securityholder hereby
irrevocably grants a proxy appointing such persons as Purchaser designates
as
the Securityholder’s attorney-in-fact and proxy, with full power of
substitution, for and in his name, place and xxxxx, to vote, express consent
or
dissent, or otherwise to utilize such voting power in the manner contemplated
by
Section 4.01 as such attorney-in-fact and proxy, in his or her sole discretion,
deems proper with respect to the Securityholder’s Subject Shares until the
termination of this Agreement in accordance with Section 5.03 hereof. The
Securityholder hereby revokes any and all previous proxies granted with respect
to his Subject Shares. The Securityholder hereby affirms that the irrevocable
proxy set forth in this Section 4.02 is given in connection with the execution
of the Merger Agreement and granted in consideration of Purchaser entering
into
this Agreement and Purchaser and Merger Sub entering into the Merger Agreement
and affirms that the irrevocable proxy is coupled with an interest and may
under
no circumstances be revoked, except that this irrevocable proxy shall be revoked
automatically, without any notice or other action by any person, upon the
termination of this Agreement in accordance with Section 5.03 hereof. The
Securityholder hereby ratifies and confirms all that such irrevocable proxy
may
lawfully do or cause to be done by virtue hereof. This
proxy and power of attorney is irrevocable and coupled with an interest and
is
executed and intended to be irrevocable.
The
Securityholder shall execute and deliver to Purchaser any proxy cards that
the
Securityholder receives to vote in favor of the adoption of the Merger Agreement
and the transactions contemplated thereby.
4.03. No
Transfers; No Inconsistent Arrangements.
(a) Except
as
provided hereunder or under the Merger Agreement, the Securityholder shall
not,
directly or indirectly, (i)
transfer (which term shall include any sale, assignment, gift, pledge,
hypothecation or other disposition), or consent to or permit any such transfer
of, any or all of his Subject Shares, or any interest therein, or create or
permit to exist any Encumbrance on any such Subject Shares, (ii)
enter
into any contract, agreement, arrangement or understanding with respect to
any
transfer of such Subject Shares or any interest therein, (iii)
grant
or permit the grant of any proxy, power of attorney or other authorization
in or
with respect to such Subject Shares, (iv)
deposit
or permit the deposit of such Subject Shares into a voting trust or enter into
a
voting agreement or arrangement with respect to such Subject Shares or
(v)
take or
permit any other action that would in any way restrict, limit or interfere
with
the performance of his obligations hereunder or the transactions contemplated
hereby or otherwise make any representation or warranty of the Securityholder
herein untrue or incorrect.
(b) Any
attempted transfer of Subject Shares, or any interest therein, in violation
of
this Section 4.03 shall be null and void. In furtherance of this Agreement,
the
Securityholder shall and hereby does authorize the Company and Purchaser’s
counsel to notify the Company’s transfer agent that there is a stop transfer
restriction with respect to all of his Subject Shares (and that this Agreement
places limits on the voting and transfer of his Subject Shares); provided
that any
such stop transfer restriction shall terminate automatically, without any notice
or other action by any Person, upon the termination of this Agreement in
accordance with Section 5.03 hereof.
4.04. Certain
Transactions.
In
the
event that (a)
the
Merger Agreement is terminated by Purchaser pursuant to Section 7.1(d) or
Section 7.1(f) or by the Company pursuant to Section 7.1(g) and (b)
within
twelve (12) months of such termination, the Securityholder sells, transfers
or
otherwise disposes of his Subject Shares and/or realizes the value of any
Company Options or other securities or rights directly or indirectly exercisable
for, or convertible into, or whose value is otherwise determined by reference
to, Shares (any such other securities or rights being referred to herein
collectively, with Company Options, as “Other
Securities”)
pursuant to any Company Takeover Proposal or a definitive agreement for a
Company Takeover Proposal is entered into, the Securityholder shall pay to
Purchaser, following receipt of proceeds in connection with the consummation
of
such a Company Takeover Proposal, an amount in cash, in immediately available
funds as directed in writing by Purchaser, equal to (x)
0.5
multiplied by (y)
the
aggregate number of Subject Shares sold, transferred or otherwise disposed
of by
such Securityholder (and in the case of Other Securities whose value is realized
by such Securityholder, the aggregate number of Shares underlying such Other
Securities), multiplied by (z)
the
difference of (a)
the
cash price per share (or the fair market value per share, if securities or
other
consideration is received) received by holders of Shares in such Company
Takeover Proposal (to the extent greater than the Offer Price), minus
(b)
the
Offer Price. To the extent that the consideration received by the Securityholder
in a Company Takeover Proposal is cash, the Securityholder shall pay any amount
payable pursuant to this Section 4.04 in connection with the receipt thereof
upon demand; to the extent that the consideration received by the Securityholder
in a Company Takeover Proposal is securities or other non-cash consideration,
the Securityholder shall pay any amount payable pursuant to this Section 4.04
in
connection with the receipt thereof within 12 months of the receipt of such
securities or other consideration. For purposes of this Section 4.04, fair
market value shall mean, in the case of securities, the value of such
securities, as determined by the average of the last sales prices for such
securities on the five trading days ending five trading days prior to the date
of the consummation of the applicable Company Takeover Proposal. If such
securities do not have an existing public trading market or there is other
consideration provided, the value of the securities or other consideration,
as
the case may be, shall be the fair market value on the day prior to the
consummation of the applicable Company Takeover Proposal as mutually agreed
in
good faith by the board of directors of Purchaser and the Securityholder. For
purposes of this Section 4.04, a “Company Takeover Proposal” shall have the
meaning set forth in Section 4.8 of the Merger Agreement, except that references
to “20%” in such definition shall be replaced by “66-2/3%.” Notwithstanding
anything to the contrary herein, if the price per share for Shares in any
consummated Company Takeover Proposal is less than the Offer Price, no
Securityholder shall be liable to, or owe any payment to, Purchaser with respect
to such Securityholder's Subject Shares or Other Securities.
4.05. No
Solicitation.
Subject
to Section 5.14, the Securityholder hereby agrees to comply with the provisions
of Section 4.8 of the Merger Agreement as if a party thereto. The
Securityholder, in his capacity as an officer and director of the Company,
hereby acknowledges and agrees to the provisions of Section 4.8 of the Merger
Agreement that apply to him in such capacity.
4.06. No
Exercise of
Appraisal Rights.
The
Securityholder agrees not to exercise any appraisal rights or dissenter’s rights
in respect of his Subject Shares which may arise with respect to the
Merger.
4.07. Legends.
If
so
requested by Purchaser, the Securityholder agrees that his Subject Shares shall
bear a legend stating that they are subject to this Agreement; provided
that the
Company shall remove such legend upon the termination of this Agreement in
accordance with Section 5.03 hereof.
4.08. Documentation
and
Information.
The
Securityholder (i)
consents to and authorizes the publication and disclosure by Purchaser and
its
affiliates of his identity and holding of Subject Shares, the nature of his
commitments and obligations under this Agreement (including, for the avoidance
of doubt, the disclosure of this Agreement) and any other information, in each
case, that Purchaser reasonably determines is required to be disclosed by
applicable Law in any press release, the Offer Documents, or any other
disclosure document in connection with the Offer, the Merger or any of the
other
transactions contemplated by the Merger Agreement or this Agreement and
(ii)
agrees
promptly to give to Purchaser any information it may reasonably require for
the
preparation of any such disclosure documents. The Securityholder agrees to
promptly notify Purchaser of any required corrections with respect to any
written information supplied by him specifically for use in any such disclosure
document, if and to the extent that any shall have become false or misleading
in
any material respect.
ARTICLE
5.
MISCELLANEOUS
5.01. Notices.
All
notices, requests and other communications to any party hereunder shall be
in
writing (including facsimile transmission) and shall be given,
if
to
Purchaser, to:
Acquisition
Sub 2007-2, Inc.
c/o
Nortek, Inc.
00
Xxxxxxx Xxxxx
Xxxxxxxxxx,
XX 00000
Attention:
General Counsel
Facsimile:
000-000-0000
with
a
copy to:
Ropes
& Xxxx LLP
Xxx
Xxxxxxxxxxxxx Xxxxx
Xxxxxx,
XX 00000
Attention:
Xxxx X. Xxxx
Facsimile:
(000)
000-0000
if
to the
Securityholder, to
Xxxx
Xxxxxxxxx
c/o
International Electronics, Inc.
000
Xxxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Facsimile:
000-000-0000
with
a
copy to:
Xxxxxx,
Xxxx & Xxxxxxx LLP
Xxx
Xxxxxxxxxxxxx Xxxxx
Xxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxx, Xx.
Facsimile:
(000) 000-0000
or
to
such other address or facsimile number as such party may hereafter specify
for
the purpose by notice to each other party hereto. All such notices, requests
and
other communications shall be deemed received on the date of receipt by the
recipient thereof if received prior to 5:00 p.m. on a business day in the place
of receipt. Otherwise, any such notice, request or communication shall be deemed
to have been received on the next succeeding business day in the place of
receipt.
5.02. Further
Assurances.
The
Securityholder shall, from time to time, execute and deliver, or cause to be
executed and delivered, such additional or further transfers, assignments,
endorsements and other instruments as Purchaser may reasonably request to carry
out the transactions contemplated by this Agreement.
5.03. Termination.
This
Agreement shall terminate automatically, without any notice or other action
by
any person, upon the earlier of (a)
the
termination of the Merger Agreement in accordance with its terms and
(b)
the
Effective Time; provided,
however,
that
any such termination, under clause (a)
herein,
shall not effect the provisions of Section 4.04 and this Article 5, which shall
continue in full force and effect thereafter.
5.04. Survival
of
Representations And Warranties.
The
representations and warranties contained herein and in any certificate or other
writing delivered pursuant hereto shall not survive the Effective
Time.
5.05. Amendments
and
Waivers.
(a) Any
provision of this Agreement may be amended or waived if such amendment or waiver
is in writing and is signed, in the case of an amendment, by each party to
this
Agreement or, in the case of a waiver, by each party against whom the waiver
is
to be effective.
(b) No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
applicable Law.
5.06. Expenses.
Except
as
otherwise provided herein or in the Merger Agreement, all costs and expenses
incurred in connection with this Agreement shall be paid by the party incurring
such cost or expense.
5.07. Binding
Effect; Benefit; Assignment.
(a) The
provisions of this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors, heirs, personal
representatives, administrators, executors and permitted assigns. No provision
of this Agreement is intended to confer any rights, benefits, remedies,
obligations or liabilities hereunder upon any Person other than the parties
hereto and their successors, heirs, personal representatives, administrators,
executors and permitted assigns.
(b) No
party
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of each other party hereto, except
that
Purchaser may assign any or all of its rights or delegate any or all of its
obligations hereunder, and may transfer, sell or otherwise dispose of all or
any
part of its interest in Merger Sub, to any of its affiliates without such prior
written consent.
5.08. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
The
Commonwealth of Massachusetts, without regard to the conflicts of law rules
thereof.
5.09. Waiver
of
Jury Trial.
Each
of
the parties hereto hereby irrevocably waives any and all right to trial by
jury
in any legal proceeding arising out of or related to this agreement or the
transactions contemplated hereby.
5.10. Counterparts;
Effectiveness.
This
Agreement may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile or “.pdf” signature page were an original thereof.
5.11. Entire
Agreement.
This
Agreement constitutes the entire agreement among the parties with respect to
the
subject matter of this Agreement and supersedes all prior agreements and
understandings, both oral and written, among the parties with respect to its
subject matter.
5.12. Severability.
If
any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction or other Governmental Authority to be invalid, void
or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such a determination, the parties 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 in order
that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
5.13. Specific
Performance.
The
parties hereto agree that Purchaser would be irreparably damaged if for any
reason any Securityholder fails to perform any of his obligations under this
Agreement, and that Purchaser would not have an adequate remedy at law for
money
damages in such event. Accordingly, Purchaser shall be entitled to specific
performance and injunctive and other equitable relief to prevent breaches or
threatened breaches of this Agreement or to enforce specifically the performance
of the terms and provisions hereof, without the need to post bond or other
security, in addition to any other remedy to which they are entitled at law
or
in equity.
5.14. Securityholder
Capacity.
Notwithstanding
anything herein to the contrary, nothing set forth herein shall in any way
restrict the Securityholder in the exercise of his fiduciary duties as an
officer or director of the Company (it being understood that this Agreement
shall apply to the Securityholder solely in the Securityholder’s capacity as a
holder of the Subject Shares).
[Remainder
of page intentionally left blank.]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly
executed as of the day and year first above written.
By:
/s/Xxxxxx X.
Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Vice President and Treasurer
SECURITYHOLDER:
/s/
Xxxx
Xxxxxxxxx
Xxxx
Xxxxxxxxx
