AGREEMENT AND PLAN OF MERGER BY AND AMONG FORTUNE BRANDS HOME & HARDWARE, INC., TDC ACQUISITION COMPANY, INC., THERMA-TRU HOLDINGS, INC., AND THE HOLDERS REPRESENTATIVES IDENTIFIED HEREIN DATED AS OF OCTOBER 31, 2003Agreement and Plan of Merger • November 24th, 2003 • Fortune Brands Inc • Heating equip, except elec & warm air; & plumbing fixtures • New York
AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of October 31, 2003, by and among Fortune Brands Home & Hardware, Inc., a Delaware corporation (“Parent”), TDC Acquisition Company, Inc., an Ohio corporation and a direct wholly-owned subsidiary of Parent (“Merger Sub”), and Therma-Tru Holdings, Inc., an Ohio corporation (the “Company”). Parent, Merger Sub, the Company and, solely with respect to Articles X and XI, the Holders Representative, are referred to collectively herein as the “Parties”.
UNDERWRITING AGREEMENTUnderwriting Agreement • November 24th, 2003 • Fortune Brands Inc • Heating equip, except elec & warm air; & plumbing fixtures • New York
If any one or more of the Underwriters shall fail or refuse to purchase Underwriters’ Securities which it or they have agreed to purchase pursuant to the Underwriting Agreement, and the aggregate amount of Underwriters’ Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate amount of the Underwriters’ Securities, the other Underwriters shall be obligated severally in the proportions which the amounts of Underwriters’ Securities set forth opposite their names in the Underwriting Agreement bear to the aggregate amount of Underwriters’ Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Manager may specify, to purchase the Underwriters’ Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase; provided that in no event shall the amount of Underwriters’ Securities which any Underwriter has ag
FORM OR REGISTERED GLOBAL SECURITY]Fortune Brands Inc • November 24th, 2003 • Heating equip, except elec & warm air; & plumbing fixtures
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY BE MADE EXCEPT IN LIMITED CIRCUMSTANCES.
