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Exhibit 2.5
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of July 24, 1997, between PLY
GEM INDUSTRIES, INC., a Delaware corporation (the "Company"), and NORTEK, INC.,
a Delaware corporation (the "Investor").
The Investor owns 640,000 shares of common stock, $0.25 par value per
share (the "Common Stock"), of the Company pursuant to the Stock Purchase
Agreement dated July 24, 1997 between the Company and the Investor. The Company
and the Investor deem it to be in their respective best interests to set forth
the rights of the Investor in connection with public offerings and sales of the
capital stock of the Company.
ACCORDINGLY, in consideration of the premises and mutual
covenants and obligations hereinafter set forth, the Company and the Investor
hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the
following terms shall have the following meanings:
"COMMISSION" shall mean the Securities and Exchange Commission
or any other governmental authority at the time administering the Securities
Act.
"COMMON STOCK" shall have the meaning given to it in the
preamble to this agreement.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934
or any successor federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect from time
to time.
"INFORMATION" shall have the meaning given to it in
Section 5(i).
"INSPECTORS" shall have the meaning given to it in
Section 5(i).
"INVESTOR" shall have the meaning given to it in the preamble
to this agreement, and includes any successor to, or assignee or transferee of
the Investor who or which agrees in writing to be treated as an Investor
hereunder and to be bound by and comply with all of the applicable terms and
provisions hereof.
"MATERIAL TRANSACTION" means any material transaction in which
the Company or any of its subsidiaries proposes to engage or is engaged,
including a purchase or sale of assets or securities, financing, merger,
consolidation, tender offer or any other transactions that would
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require disclosure pursuant to the Exchange Act, and with respect to which the
Board of Directors of the Company reasonably has determined in good faith that
compliance with this Agreement may reasonably be expected to either materially
interfere with the Company's or such subsidiary's ability to consummate such
transaction in a timely fashion or require the Company to disclose material,
non-public information prior to such time as it would otherwise be required to
be disclosed.
"MERGER AGREEMENT" means the Agreement and Plan of Merger
dated the date hereof among the Investor, NTK Sub, Inc., a Delaware corporation
and a wholly owned subsidiary of the Investor, and the Company.
"NASD" shall have the meaning given to it in Section 5(n).
"OTHER SHARES" shall mean at any time those shares of Common
Stock which do not constitute Primary Shares or Registrable Shares.
"PERSON" shall be construed as broadly as possible and shall
include an individual or natural person, a partnership (including a limited
liability partnership), a corporation, an association, a joint stock company, a
limited liability company, a trust, a joint venture, an unincorporated
organization and a governmental authority.
"PRIMARY SHARES" shall mean at any time the authorized but
unissued shares of Common Stock or shares of Common Stock held by the Company in
its treasury.
"RECORDS" shall have the meaning given to it in Section 5(i).
"REGISTRABLE SHARES" shall mean, at any time, with respect to
the Investor, the shares of Common Stock held by the Investor which constitute
Restricted Shares. As to any particular Registrable Shares, once issued, such
Registrable Shares shall cease to be Registrable Shares when (A) they have been
registered under the Securities Act, the Registration Statement in connection
therewith has been declared effective and they have been disposed of pursuant to
and in the manner described in such effective Registration Statement, (B) they
(1) are sold or distributed pursuant to Rule 144 or (2) may be sold or
distributed by the holder thereof under Rule 144(k), (C) they have been
otherwise transferred and new certificates or other evidences of ownership for
them not bearing a restrictive legend and not subject to any stop transfer order
or other restriction on transfer shall have been delivered by the Corporation or
the issuer of other securities issued in exchange for the Registrable Shares, or
(D) they have ceased to be outstanding.
"RESTRICTED SECURITIES" shall mean, at any time and with
respect to the Investor, the Restricted Shares and any securities received on or
with respect to any Restricted Shares, which are held by the Investor and which
theretofore have not been sold to the public pursuant to a registration
statement under the Securities Act or pursuant to Rule 144.
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"RESTRICTED SHARES" shall mean, at any time and with respect
to the Investor, the shares of Common Stock and any other securities which by
their terms are exercisable or exchangeable for or convertible into Common
Stock, and any securities received on or with respect to any such Common Stock,
acquired by the Investor pursuant to this Agreement and which theretofore have
not been sold to the public pursuant to a registration statement under the
Securities Act or pursuant to Rule 144 or may be sold under Rule 144(k).
"RULE 144" shall mean Rule 144 promulgated under the
Securities Act or any successor rule thereto or any complementary rule thereto
(such as Rule 144A).
"SECURITIES ACT" shall mean the Securities Act of 1933 or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"SELLING INVESTOR'S COUNSEL" shall have the meaning given to
it in Section 5(b).
SECTION 2. DEMAND REGISTRATION.
(a) If, following the earlier of (i) the
consummation of a merger, consolidation, tender offer, sale of assets
or other disposition of the Company other than pursuant to the Merger
Agreement, and (ii) ninety (90) days after the termination of the
Merger Agreement or the failure to consummate the transactions
contemplated thereby regardless of the reasons therefore, the Company
shall be requested by the Investor to effect the registration under the
Securities Act of Registrable Shares, then, upon the written request,
delivered to the Company (which request shall specify the number of
Registrable Shares proposed to be included in such registration), the
Company shall, subject to Section 2(c) below, promptly use its best
efforts to effect such registration under the Securities Act of the
Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the
contrary notwithstanding, the Company shall not be obligated to effect
pursuant to Section 2(a) any registration under the Securities Act
except in accordance with the following provisions:
(i) the Company shall not be obligated to
use its best efforts to file and cause to become effective (A)
more than two registration statements initiated pursuant to
Section 2(a), or (B) any registration statement during any
period in which any other registration statement (other than
on Form S-4 or Form S-8 promulgated under the Securities Act
or any successor forms thereto) pursuant to which Primary
Shares are to be or were sold has been filed and not withdrawn
or has been declared effective within the prior 90 days;
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(ii) the Company may delay the filing or
effectiveness of any registration statement for a period of up
to 90 days after the date of a request for registration
pursuant to Section 2(a) if at the time of such request (A)
the Company is engaged, or has bona fide plans to file within
60 days of the time of such request, a registration statement
in respect of a firm commitment underwritten public offering
of Primary Shares in which the holders of Restricted Shares
may include Registrable Shares pursuant to Section 3 or (B) a
Material Transaction exists at such time, provided that the
company may only so delay the filing or effectiveness of a
particular Registration Statement once pursuant to clause (A)
above and once pursuant to this clause (B) in any 18-month
period; and
(iii) with respect to any registration
pursuant to Section 2(a), the Company may include in such
registration any Primary Shares or Other Shares; PROVIDED,
HOWEVER, that if the managing underwriter advises the Company
that the inclusion of all Registrable Shares, Primary Shares
and Other Shares proposed to be included in such registration
would interfere with the successful marketing (including
pricing) of all such securities, then the number of
Registrable Shares, Primary Shares and Other Shares proposed
to be included in such registration shall be included in the
following order:
(A) first, the Registrable Shares
held by the Investor requesting that its Registrable
Shares be included in such registration pursuant to
Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares.
A requested registration under this Section 2 may be rescinded prior to such
registration being declared effective by the Commission by written notice to the
Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration
shall not count as a registration statement initiated pursuant to this Section 2
for purposes of clause (i) above if the Company shall have been reimbursed for
all out-of-pocket expenses incurred by the Company in connection with such
rescinded registration and provided further that no request to register
Registrable Securities may be made pursuant to this Section 2(a) for a period of
180 days from the date of such recession.
SECTION 3. PIGGYBACK REGISTRATION. If at any time following
the date hereof, the Company at any time proposes for any reason to register
Primary Shares or Other Shares under the Securities Act (other than on Form S-4
or Form S-8 promulgated under the Securities Act or any successor forms thereto
and other than pursuant to a registration statement covered by Rule 462
promulgated under the Securities Act), it shall promptly give written notice to
the
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Investor of its intention so to register the Primary Shares or Other Shares and,
upon the written request, given within 20 days after delivery of any such notice
by the Company, of the Investor to include in such registration Registrable
Shares (which request shall specify the number of Registrable Shares proposed to
be included in such registration), the Company shall use its best efforts to
cause all such Registrable Shares to be included in such registration on the
same terms and conditions as the securities otherwise being sold in such
registration; PROVIDED, HOWEVER, that if the managing underwriter advises the
Company that the inclusion of all Registrable Shares or Other Shares proposed to
be included in such registration would interfere with the successful marketing
(including pricing) of Primary Shares proposed to be registered by the Company,
then the number of Primary Shares, Registrable Shares and Other Shares proposed
to be included in such registration shall be included in the following order:
(a) first, the Primary Shares;
(b) second, the Registrable Shares held by the
Investor; and
(c) third, the Other Shares.
SECTION 4. HOLDBACK AGREEMENT. If the Company at any time
shall register shares of Common Stock under the Securities Act (including any
registration pursuant to Section 2) for sale to the public, the Investor shall
not sell, make any short sale of, grant any option for the purchase of, seek
registration under the Securities Act of, or otherwise dispose of any Restricted
Shares (other than those shares of Common Stock included in such registration
pursuant to Section 2 or 3) without the prior written consent of the Company for
a period designated by the Company in writing to the Investor, which period
cannot begin more than 10 days prior to the effectiveness of the registration
statement pursuant to which such public offering shall be made and cannot last
more than 180 days after the effective date of such registration statement and,
in any subsequent public offering, more than 120 days after the effective date
of such registration statement.
SECTION 5. PREPARATION AND FILING. If and whenever the Company
is under an obligation pursuant to the provisions of this Agreement to use its
best efforts to effect the registration of any Registrable Shares, the Company
shall, as expeditiously as practicable:
(a) use its best efforts to cause a registration
statement that registers such Registrable Shares to become and remain
effective for a period of 90 days or until all of such Registrable
Shares have been disposed of (if earlier);
(b) furnish, at least five business days before
filing a registration statement that registers such Registrable Shares,
a prospectus relating thereto or any amendments or supplements relating
to such a registration statement or prospectus, to one counsel selected
by the Investor (the "Selling Investor's Counsel"), copies of all such
documents proposed to be filed (it being understood that such
five-business-day period
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need not apply to successive drafts of the same document proposed to be
filed so long as such successive drafts are supplied to such counsel in
advance of the proposed filing by a period of time that is customary
and reasonable under the circumstances);
(c) prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep
such registration statement effective for at least a period of 90 days
or until all of such Registrable Shares have been disposed of (if
earlier) and to comply with the provisions of the Securities Act with
respect to the sale or other disposition of such Registrable Shares,
provided that the Company may delay (and such period of delay shall
extend such 90-day period by the same duration) for up to 45 days the
effectiveness or filing of such registration statement, or elect not to
amend such registration statement or supplement the Prospectus used in
connection therewith so that sales may not be made thereon for up to 45
days (and such period of delay shall extend such 90-day period by the
same duration), if the making of disclosures required by such
registration statement would have a material adverse affect upon the
Company or its securities and such disclosures are not otherwise
required to be made;
(d) notify in writing the Selling Investor's Counsel
promptly (i) of any comments by the Commission with respect to such
registration statement or prospectus, or any request by the Commission
for the amending or supplementing thereof or for additional information
with respect thereto, (ii) of the issuance by the Commission of any
stop order suspending the effectiveness of such registration statement
or prospectus or any amendment or supplement thereto or the initiation
of any proceedings for that purpose and (iii) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of such Registrable Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purposes;
(e) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as any seller of Registrable Shares reasonably requests
and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller of Registrable Shares to
consummate the disposition in such jurisdictions of the Registrable
Shares owned by such seller; PROVIDED, HOWEVER, that the Company will
not be required to qualify generally to do business, subject itself to
general taxation or consent to general service of process in any
jurisdiction where it would not otherwise be required so to do but for
this paragraph (e);
(f) furnish to each seller of such Registrable Shares
such number of copies of a summary prospectus or other prospectus,
including a preliminary prospectus, in conformity with the requirements
of the Securities Act, and such other documents as such seller of
Registrable Shares may reasonably request in order to facilitate the
public sale or other disposition of such Registrable Shares;
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(g) use its best efforts to cause such Registrable
Shares to be registered with or approved by such other governmental
agencies or authorities as may be necessary by virtue of the business
and operations of the Company to enable the seller or sellers thereof
to consummate the disposition of such Registrable Shares;
(h) notify on a timely basis each seller of such
Registrable Shares at any time when a prospectus relating to such
Registrable Shares is required to be delivered under the Securities Act
within the appropriate period mentioned in subparagraph (a) of this
Section 5, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing and, at the request of such seller, prepare and furnish to
such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the offerees of such shares, such prospectus shall not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(i) make available for inspection by any seller of
such Registrable Shares, any underwriter participating in any
disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such seller or underwriter
(collectively, the "Inspectors"), all pertinent financial and other
records, pertinent corporate documents and properties of the Company
(collectively, the "Records"), as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause
the Company's officers, directors and employees to supply all
information (together with the Records, the "Information") reasonably
requested by any such Inspector in connection with such registration
statement (and any of the Information which the Company determines in
good faith to be confidential, and of which determination the
Inspectors are so notified, shall not be disclosed by the Inspectors
unless (i) the disclosure of such Information is necessary to avoid or
correct a misstatement or omission in the registration statement, (ii)
the release of such Information is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction or (iii) such
Information has been made generally available to the public, and (iv)
the seller of Registrable Shares agrees that it will, upon learning
that disclosure of such Information is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at the
Company's expense, to undertake appropriate action to prevent
disclosure of the Information deemed confidential);
(j) use its best efforts to obtain, from its
independent certified public accountants, a "cold comfort" letter in
customary form and covering such matters of the type customarily
covered by cold comfort letters;
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(k) use its best efforts to obtain, from its counsel,
an opinion or opinions in customary form;
(l) provide a transfer agent and registrar (which may
be the same entity and which may be the Company) for such Registrable
Shares;
(m) issue to any underwriter to which any seller of
Registrable Shares may sell shares in such offering, certificates
evidencing such Registrable Shares;
(n) list such Registrable Shares on any national
securities exchange on which any shares of the Common Stock are listed
or, if the Common Stock is not listed on a national securities
exchange, use its best efforts to qualify such Registrable Shares for
inclusion on the automated quotation system of the National Association
of Securities Dealers, Inc. (the "NASD") or such other national
securities exchange as the holders of a majority of such Registrable
Shares shall request;
(o) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its securityholders, as soon as reasonably practicable, earnings
statements which need not be audited covering a period of 12 months
beginning within three months after the effective date of the
registration statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act; and
(p) use its best efforts to take all other steps
necessary to effect the registration of such Registrable Shares
contemplated hereby.
Each holder of the Registrable Shares, upon receipt of any
notice from the Company of any event of the kind described in Section 5(h)
hereof, shall forthwith discontinue disposition of the Registrable Shares
pursuant to the registration statement covering such Registrable Shares until
such holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(h) hereof, and, if so directed by the Corporation,
such holder shall deliver to the Corporation all copies, other than permanent
file copies then in such holder's possession, of the most recent Prospectus
covering such Registrable Shares at the time of receipt of such notice.
SECTION 6. EXPENSES. All expenses incurred by the Company in
complying with Section 5, including, without limitation, all registration and
filing fees (including all expenses incident to filing with the NASD), fees and
expenses of complying with securities and blue sky laws, printing expenses, fees
and expenses of the Company's counsel and accountants and fees and expenses of
the Selling Investor's Counsel, shall be paid by the Company; PROVIDED, HOWEVER,
that all underwriting discounts and selling commissions applicable to the
Registrable
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Shares shall not be borne by the Company but shall be borne by the seller or
sellers thereof, in proportion to the number of Registrable Shares sold by such
seller or sellers.
SECTION 7. INDEMNIFICATION.
(a) In connection with any registration of any
Registrable Shares under the Securities Act pursuant to this Agreement,
the Company shall indemnify and hold harmless the seller of such
Registrable Shares, each underwriter, broker or any other Person acting
on behalf of such seller and each other Person, if any, who controls
any of the foregoing Persons within the meaning of the Securities Act
against any losses, claims, damages or liabilities, joint or several,
to which any of the foregoing Persons may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the registration statement under which such Registrable
Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, any amendment or
supplement thereto or any document incident to registration or
qualification of any Registrable Shares, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading or, with respect to any prospectus, necessary to
make the statements therein in light of the circumstances under which
they were made not misleading, or any violation by the Company of the
Securities Act or state securities or blue sky laws applicable to the
Company and relating to action or inaction required of the Company in
connection with such registration or qualification under such state
securities or blue sky laws; and shall reimburse such seller, such
underwriter, such broker or such other Person acting on behalf of such
seller and each such controlling Person for any legal or other expenses
reasonably incurred by any of them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in said registration statement,
preliminary prospectus, amendment, supplement or document incident to
registration or qualification of any Registrable Shares in reliance
upon and in conformity with written information furnished to the
Company through an instrument duly executed by such seller or
underwriter, or a Person duly acting on their behalf, specifically for
use in the preparation thereof.
(b) In connection with any registration of
Registrable Shares under the Securities Act pursuant to this Agreement,
each seller of Registrable Shares shall indemnify and hold harmless (in
the same manner and to the same extent as set forth in the preceding
paragraph of this Section 7) the Company, each director of the Company,
each officer of the Company, each underwriter, broker or other Person
acting on behalf of such seller, each Person who controls any of the
foregoing Persons within the meaning of
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the Securities Act and each other seller of Registrable Shares under
such registration statement with respect to any statement or omission
from such registration statement, any preliminary prospectus or final
prospectus contained therein, any amendment or supplement thereto or
any document incident to registration or qualification of any
Registrable Shares, if such statement or omission was made in reliance
upon and in conformity with written information furnished to the
Company or such underwriter through an instrument duly executed by such
seller or a Person duly acting on their behalf specifically for use in
connection with the preparation of such registration statement,
preliminary prospectus, final prospectus, amendment or supplement;
provided, however, that the maximum amount of liability in respect of
such indemnification shall be, limited, in the case of each seller of
Registrable Shares, to an amount equal to the net proceeds actually
received by such seller from the sale of Registrable Shares effected
pursuant to such registration unless the Seller had actual knowledge
that the information furnished was materially inaccurate.
(c) Promptly after receipt by an indemnified party of
notice of the commencement of any action involving a claim referred to
in the preceding paragraphs of this Section 7, such indemnified party
will, if a claim in respect thereof is made against an indemnifying
party, give written notice to the latter of the commencement of such
action. In case any such action is brought against an indemnified
party, the indemnifying party will be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel
reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party shall not be
responsible for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof; provided,
however, that if any indemnified party shall have reasonably concluded
that there may be one or more legal or equitable defenses available to
such indemnified party which are additional to or conflict with those
available to the indemnifying party, or that such claim or litigation
involves or could have an effect upon matters beyond the scope of the
indemnity agreement provided in this Section 7, the indemnifying party
shall not have the right to assume the defense of such action on behalf
of such indemnified party and such indemnifying party shall reimburse
such indemnified party and, any Person controlling such indemnified
party for that portion of the fees and expenses of any one counsel
retained by the indemnified party which are reasonably related to the
matters covered by the indemnity agreement provided in this Section 7.
(d) If the indemnification provided for in this
Section 8 is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss, claim,
damage or liability referred to herein, then the indemnifying party, in
lieu of indemnifying such indemnified party hereunder, shall contribute
to the amounts paid or payable by such indemnified party as a result of
such loss, claim, damage or liability in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on
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the one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in such loss, claim,
damage or liability as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
SECTION 8. UNDERWRITING AGREEMENT. Notwithstanding the
provisions of Sections 4, 5, 6 and 7, to the extent that the Investor selling
Registrable Shares in a proposed registration shall enter into an underwriting
or similar agreement, which agreement contains provisions covering one or more
issues addressed in such Sections, the provisions contained in such Sections
addressing such issue or issues shall be of no force or effect with respect to
such registration, but this provision shall not apply to the Company if the
Company is not a party to the underwriting or similar agreement.
SECTION 9. INFORMATION BY HOLDER. Each holder of Registrable
Shares to be included in any registration shall furnish to the Company and the
managing underwriter such written information regarding such holder and the
distribution proposed by such holder as the Company or the managing underwriter
may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Agreement.
SECTION 10. EXCHANGE ACT COMPLIANCE. The Company shall use its
reasonable efforts to comply with all of the reporting requirements of the
Exchange Act (whether or not it shall be required to do so) and shall use its
reasonable efforts to comply with all other public information reporting
requirements of the Commission which are conditions to the availability of Rule
144 for the sale of the Common Stock. The Company shall cooperate with the
Investor in supplying such information as may be necessary for the Investor to
complete and file any information reporting forms presently or hereafter
required by the Commission as a condition to the availability of Rule 144.
SECTION 11. NO CONFLICT OF RIGHTS. The Company represents and
warrants to the Investor that the registration rights granted to the Investor
hereby do not conflict with any other registration rights granted by the
Company. The Company shall not, after the date hereof, grant any registration
rights which conflict with or impair, or have any priority over, the
registration rights granted hereby. In any Public Offering, the managing
underwriter shall be a nationally recognized investment banking firm selected by
the Company and reasonably acceptable to the Investor for so long as it holds
Registrable Shares.
SECTION 12. TERMINATION. This Agreement shall terminate and be
of no further force or effect when there shall not be any Restricted Shares;
PROVIDED, HOWEVER, that the
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Investor's rights under Sections 2 and 3 hereof shall cease to be in effect at
any time when (i) the Registrable Shares held by the Investor may be sold by the
Investor under Rule 144 and such Registrable Shares constitute less than 1% of
the class of the Company's Securities to which the Registrable Shares are a part
or (ii) all of the Registrable Shares held by the Investor may be sold under
Rule 144(k).
SECTION 13. SUCCESSORS AND ASSIGNS. This Agreement shall bind
and inure to the benefit of the Company and the Investor and, subject to Section
14, their respective successors and assigns.
SECTION 14. ASSIGNMENT. The Investor may assign its rights
hereunder to any purchaser from the Investor of Restricted Shares; PROVIDED,
HOWEVER, that such purchaser shall, as a condition to the effectiveness of such
assignment, be required to execute a counterpart to this Agreement agreeing to
be treated as the Investor whereupon such purchaser shall have the benefits of,
and shall be subject to the restrictions contained in, this Agreement.
SECTION 15. ENTIRE AGREEMENT. This Agreement contains the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all prior arrangements or understandings with respect hereto.
SECTION 16. NOTICES. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument and shall be deemed to have been duly given
when delivered in Person, by telex, telegram or telecopy, by overnight courier,
or by first class registered or certified mail, postage prepaid, addressed to
such party at the address set forth below or such other address as may hereafter
be designated in writing by the addressee to the sender:
(i) if to the Company, to:
Ply Gem Industries, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
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with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
(ii) if to the Investor, to:
Nortek, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Telephone: (000)000-0000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
All such notices, requests, consents and other communications shall be deemed to
have been delivered (a) in the case of personal delivery, telex, telegram or
telecopy, on the date of such delivery, (b) in the, case of overnight courier,
on the next business day, and (c) in the case of mailing, on the third business
day following such mailing.
SECTION 17. MODIFICATIONS; AMENDMENTS; WAIVERS. The terms and
provisions of this Agreement may not be modified or amended, nor may any
provision applicable to the Investor be waived, except pursuant to a writing
signed by (i) the Company and (ii) the Investor.
SECTION 18. HEADINGS. The headings of the various sections of
this Agreement have been inserted for convenience of reference only and shall
not be deemed to be a part of this Agreement.
SECTION 19. SEVERABILITY. It is the desire and intent of the
parties that the provisions of this Agreement be enforced to the fullest extent
permissible under the law and
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public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any provision of this Agreement would be held in any
jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 20. GOVERNING LAW. All questions concerning the
construction, interpretation and validity of this Agreement shall be governed by
and construed and enforced in accordance with the domestic laws of the State of
Delaware, without giving effect to any choice or conflict of law provision or
rule (whether in the State of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Delaware. In furtherance of the foregoing, the internal law of the State of
Delaware will control the interpretation and construction of this Agreement,
even if under such jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily apply.
SECTION 21. LEGEND ON CERTIFICATES. Any certificate
representing securities subject to this Agreement shall bear a legend in
substantially the following form:
"The securities represented by this certificate are
subject to a Registration Rights Agreement dated as
of July 24, 1997, as amended from time to time. A
copy thereof is available for inspection from the
Company."
SECTION 22. COUNTERPARTS; VALIDITY. This Agreement may be
executed in any number of counterparts, and each such counterpart hereof shall
be deemed to be an original instrument, but all such counterparts together shall
constitute but one agreement and telecopied signatures are effective.
SECTION 23. ENTIRE AGREEMENT. This Agreement and the other
documents, certificates, instruments, writings and agreements referred to herein
or delivered pursuant hereto contain the entire understanding of the parties
with respect to the subject matter hereof and supersede in their entirety any
and all prior agreements and understandings between any of the parties hereto
all of which are hereby terminated in their entirety and of no further force or
effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement on the date first written above.
PLY GEM INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman
NORTEK, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and General Counsel
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