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Exhibit (c)(3)
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STOCK PURCHASE AGREEMENT
dated as of July 24, 1997
among
PLY GEM INDUSTRIES, INC.
(the "Company"),
and
NORTEK, INC.
(the "Investor")
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TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINED TERMS; RULES OF CONSTRUCTION.................................1
1.1. DEFINED TERMS...............................................1
1.2. RULES OF CONSTRUCTION.......................................3
ARTICLE II
PURCHASE AND SALE OF SHARES..........................................3
2.1. CLOSING.....................................................3
2.2. USE OF PROCEEDS.............................................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY........................4
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.......................4
4.1. INVESTMENT REPRESENTATIONS..................................4
4.2. OTHER REPRESENTATIONS AND WARRANTIES........................5
ARTICLE V
COMPANY DELIVERIES AT THE CLOSING....................................5
5.1. SUPPORTING DOCUMENTS........................................5
5.2. REGISTRATION RIGHTS AGREEMENT...............................6
ARTICLE VI
MISCELLANEOUS........................................................6
6.1. FEES........................................................6
6.2. FURTHER ASSURANCES..........................................7
6.3. SUCCESSORS AND ASSIGNS......................................7
6.4. ENTIRE AGREEMENT............................................7
6.5. NOTICES.....................................................7
6.6. AMENDMENTS, MODIFICATIONS AND WAIVERS.......................8
6.7. GOVERNING LAW...............................................8
6.8. COUNTERPARTS; FACSIMILE SIGNATURES..........................9
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STOCK PURCHASE AGREEMENT dated as of July 24, 1997, among PLY GEM
INDUSTRIES, INC., a Delaware corporation (the "COMPANY") and NORTEK, INC., a
Delaware corporation (the "INVESTOR").
The Company desires to obtain equity financing, and the Investor is
willing to purchase certain shares of the Company's common stock in connection
therewith, all on the terms and subject to the conditions set forth herein.
ACCORDINGLY, in consideration of the foregoing and the covenants,
agreements, representations and warranties contained in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties, the parties hereto hereby agree as follows:
ARTICLE I
DEFINED TERMS; RULES OF CONSTRUCTION
1.1. DEFINED TERMS.
Capitalized terms used and not otherwise defined in this Agreement have
the meanings ascribed to them below or in the other locations of this Agreement
specified below:
"ATRIUM AGREEMENT" means the Agreement and Plan of Merger dated as of
June 24, 1997 among Atrium Acquisition Holding Corp., Atrium/PG Acquisition
Corp. and the Company, and, solely for the purposes of Section 4.3 and Articles
9 and 10, Atrium Corporation, a Delaware corporation and the sole stockholder of
Atrium Acquisition Holding Corp.
"BUSINESS DAY" means any day that is not a Saturday, Sunday, legal
holiday or other day on which banks are required to be closed in New York, New
York.
"BY-LAWS" means the by-laws of the Company, as amended and in effect at
the time in question.
"CERTIFICATE OF INCORPORATION" means the certificate of incorporation
of the Company as amended and restated and in effect at the time in question.
"CLOSING" has the meaning given to it in Section 2.1(b).
"CLOSING Date" has the meaning given to it in Section 2.1(b).
"COMMISSION" means the United States Securities and Exchange
Commission.
"COMMON STOCK" means the common stock, $0.25 par value, of the Company.
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"COMPANY" has the meaning given to it in the preamble to this
Agreement.
"DOCUMENTS" means this Agreement and the Registration Rights Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any similar Federal Statute then in force, and the rules and regulations
promulgated thereunder, all as the same may from time to time be in effect.
"INVESTOR" has the meaning given to it in the preamble to this
Agreement.
"MERGER AGREEMENT" means the Agreement and Plan of Merger dated the
date hereof by and among the Investor, NTK and the Company.
"NON-COMPETE AND TERMINATION AGREEMENT" means the Non-Compete and
Termination Agreement among the Investor, the Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
substantially in the form of Exhibit C to the Merger Agreement.
"NTK" means NTK Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of the Investor.
"OPTION SURRENDER AGREEMENT, RELEASE AND WAIVER" means the Option
Surrender Agreement, Release and Waiver between the Company and certain
beneficial and record holders of options or unvested stock substantially in the
form of Exhibit B to the Merger Agreement.
"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.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
to be entered into among the Company and the Investor substantially in the form
attached hereto as Exhibit A.
"SECURITIES" means, with respect to any Person, such Person's
"securities" as defined in Section 2(1) of the Securities Act of 1933, as
amended, and includes such Person's capital stock or other equity interests or
any options, warrants or other securities or rights that are directly or
indirectly convertible into, or exercisable or exchangeable for, such Person's
capital stock or other equity interests.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same may from time to time be in effect.
"SHARES" has the meaning given to it in Section 2.1(a).
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"TERMINATION AND RELEASE AGREEMENT" means the Termination and Release
Agreement among the Investor, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and the Company substantially
in the form of Exhibit D to the Merger Agreement.
1.2. Rules of Construction.
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The term "this Agreement" means this agreement together with all
schedules and exhibits attached hereto, as the same may from time to time be
amended, modified, supplemented or restated in accordance with the terms hereof.
The use in this Agreement of the term "including" means "including, without
limitation." The words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole, including the schedules and
exhibits, as the same may from time to time be amended, modified, supplemented
or restated, and not to any particular section, subsection, paragraph,
subparagraph or clause contained in this Agreement. All references to sections,
schedules and exhibits mean the sections of this Agreement and the schedules and
exhibits attached to this Agreement, except where otherwise stated. The title of
and the section and paragraph headings in this Agreement are for convenience of
reference only and shall not govern or affect the interpretation of any of the
terms or provisions of this Agreement. The use herein of the masculine, feminine
or neuter forms shall also denote the other forms, as in each case the context
may require or permit. Where specific language is used to clarify by example a
general statement contained herein, such specific language shall not be deemed
to modify, limit or restrict in any manner the construction of the general
statement to which it relates. The language used in this Agreement has been
chosen by the parties to express their mutual intent, and no rule of strict
construction shall be applied against any party.
ARTICLE II
PURCHASE AND SALE OF SHARES
2.1. Closing.
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(a) At the Closing (as defined below), subject to the satisfaction or
waiver of the conditions in Articles V, (i) the Company shall issue and sell to
the Investor, and the Investor shall purchase from the Company, 640,000 shares
of Common Stock at a per share purchase price equal to $18.75 (or the aggregate
purchase price of $12,000,000 for all 640,000 shares (collectively, the
"SHARES") to be sold to the Investor at the Closing).
(b) The closing (the "CLOSING") hereunder with respect to the issuance
and sale of the Shares and the consummation of the related transactions
contemplated hereby shall take place on the date hereof (such date being called
the "CLOSING DATE" herein) at the offices of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
New York, New York, or such other location agreed upon by the Company and the
Investor. At the Closing, the Company shall deliver to the Investor one or more
certificates representing the Shares being purchased by the Investor at the
Closing, registered in the name of the Investor, against receipt by the Company
of the aggregate purchase
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price therefor, payable in its entirety by wire transfer of immediately
available funds to an account specified in writing by the Company at least one
Business Day prior to the Closing Date.
2.2. Use of Proceeds.
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The proceeds received by the Company from the sale of the Shares shall
be used first by the Company to satisfy its obligations to Atrium Acquisition
Holding Corp. under Section 6.4(b) of the Atrium Agreement and, if there remain
any proceeds after such obligations are fully satisfied, for general corporate
purposes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The representations and warranties of the Company contained in the
Merger Agreement are incorporated into this Agreement by reference. The Company
represents and warrants to the Investor that each of the representations and
warranties of the Company contained in the Merger Agreement are true, correct
and complete on and as of the Closing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
4.1. Investment Representations.
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(a) The Investor is acquiring the Shares to be purchased by the
Investor hereunder for its own account, for investment and not with a view to
the distribution thereof in violation of the Securities Act or applicable state
securities laws.
(b) The Investor understands that (i) the Shares have not been
registered under the Securities Act or applicable state securities laws by
reason of their issuance by the Company in a transaction exempt from the
registration requirements of the Securities Act and applicable state securities
laws and (ii) the Shares must be held by the Investor indefinitely unless a
subsequent disposition thereof is registered under the Securities Act and
applicable state securities laws or is exempt from registration.
(c) The Investor further understands that the exemption from
registration afforded by Rule 144 (the provisions of which are known to the
Investor) promulgated under the Securities Act depends on the satisfaction of
various conditions, and that, if applicable, Rule 144 may only afford the basis
for sales of Securities acquired hereunder only in limited amounts.
(d) The Investor is an "accredited investor" (as defined in Rule 501(a)
of Regulation D promulgated under the Securities Act). The Company has made
available to the Investor or its representatives all agreements, documents,
records and books that the Investor has requested relating to an investment in
the Securities which may be acquired by the Investor hereunder. The
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Investor has had an opportunity to ask questions of, and receive answers from, a
person or persons acting on behalf of the Company, concerning the terms and
conditions of this investment, and answers have been provided to all of such
questions to the full satisfaction of the Investor. The Investor has such
knowledge and experience in financial and business matters that it is capable of
evaluating the risks and merits of this investment.
4.2. Other Representations and Warranties.
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The representations and warranties of the Investor and NTK contained in
the Merger Agreement are incorporated into this Agreement by reference. The
Investor and NTK represent and warrant to the Company that each of the
representations and warranties of the Investor and NTK contained in the Merger
Agreement are true, correct and complete on and as of the Closing Date.
ARTICLE V
COMPANY DELIVERIES AT THE CLOSING
The Investor's obligation to purchase the Shares is subject to the
satisfaction on or prior to the Closing Date of each of the following
conditions, unless expressly waived by the Investor at or prior to Closing:
5.1. Supporting Documents.
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The Investor shall have received copies of the following supporting
documents (in form and substance satisfactory to the Investor):
(a) certificates of the Secretary of State of the State of
Delaware, dated as of a recent date as to the due incorporation or formation and
good standing of the Company and listing all documents of the Company on file
with said Secretary;
(b) a telegram, telex or other acceptable method of confirmation
from said Secretary as of the close of business on the next Business Day
preceding the Closing Date as to the continued good standing of the Company;
(c) a certificate of the Secretary or an Assistant Secretary of
the Company, dated as of the Closing Date and certifying:
(i) that attached thereto is a true, correct and complete copy
of the Certificate of Incorporation of the Company as in effect on and
as of the Closing Date (which shall be in form and substance
satisfactory to the Investor) and that no action has been taken or is
proposed to be taken by or on the part of the Company to amend or
modify the same in any respect or to liquidate, dissolve or wind up the
affairs of the Company;
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(ii) that attached thereto is a true, correct and complete
copy of the By-laws of the Company as in effect on and as of the
Closing Date (which shall be in form and substance satisfactory to the
Investor) and that no action has been taken or is proposed to be taken
by or on the part of the Company to amend or modify the same in any
respect;
(iii) that attached thereto are true, correct and complete
copies of all resolutions adopted by the Board of Directors (and any
committees thereof) and the stockholders of the Company authorizing the
execution, delivery and performance of the Documents to which the
Company is or will be a party and the issuance, sale, and delivery of
the Shares (which resolutions shall be in form and substance
satisfactory to the Investor), and that all such resolutions are still
in full force and effect and that no action has been taken or is
proposed to be taken by or on the part of the Company to amend, modify
or rescind the same in any respect; and
(iv) the incumbency and specimen signature of all officers
of the Company executing the Documents, the stock certificates
representing the Shares and any certificate or instrument furnished
pursuant hereto, and a certification by another officer of the Company
as to the incumbency and signature of the officer signing the
certificate referred to in this clause (iv); and
(d) such additional supporting documents as the Investor may
reasonably request.
5.2. Registration Rights Agreement.
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The Company shall have executed and delivered the Registration Rights
Agreement in substantially the form of Exhibit A hereto.
ARTICLE VI
MISCELLANEOUS
6.1. Fees.
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(a) Each party hereto shall bear all fees, costs and expenses
incurred by it in connection with the preparation, execution and performance of
the Documents, except as otherwise expressly provided herein.
(b) The Company agrees that it will pay, and will save the
Investor harmless from, any and all liability with respect to any stamp or
similar taxes which may be determined to be payable in connection with the
execution and delivery and performance of the Documents or any modification,
amendment or alteration of the terms or provisions of the Documents, and that it
will similarly pay and hold the Investor harmless from all issue taxes in
respect of the issuance of the Shares to the Investor.
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6.2. Further Assurances.
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The Company shall duly execute and deliver, or cause to be duly
executed and delivered, at its own cost and expense, such further instruments
and documents and to take all such action, in each case as may be necessary or
proper in the reasonable judgment of the Investor to carry out the provisions
and purposes of the Agreement and the other Documents.
6.3. Successors and Assigns.
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This Agreement shall bind and inure to the benefit of the Company and
the Investor and their respective successors, assigns, heirs and personal
representatives.
6.4. Entire Agreement.
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This Agreement and the other writings referred to herein or delivered
pursuant hereto which form a part hereof contain the entire agreement among the
parties with respect to the subject matter hereof and thereof and supersede all
prior and contemporaneous arrangements or understandings with respect thereto.
6.5. Notices.
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All notices and other communications delivered hereunder (whether or
not required to be delivered hereunder) shall be deemed to be sufficient and
duly given if contained in a written instrument (a) personally delivered, (b)
sent by telecopier, (c) sent by nationally-recognized overnight courier
guaranteeing next Business Day delivery or (d) sent by first class registered or
certified mail, postage prepaid, return receipt requested, in each case
addressed as follows:
(i) if to the Company, to:
Ply Gem Industries, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
with a copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(ii) if to the Investor, to:
Nortek, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
Ropes & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
or to such other address as the party to whom such notice or other communication
is to be given may have furnished to each other party in writing in accordance
herewith. Any such notice or communication shall be deemed to have been received
(i) when delivered, if personally delivered, (ii) when sent, if sent by telecopy
on a Business Day (or, if not sent on a Business Day, on the next Business Day
after the date sent by telecopy), (iii) on the next Business Day after dispatch,
if sent by nationally recognized, overnight courier guaranteeing next Business
Day delivery, and (iv) on the fifth Business Day following the date on which the
piece of mail containing such communication is posted, if sent by mail.
6.6. Amendments, Modifications and Waivers.
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The terms and provisions of this Agreement may not be modified or
amended, nor may any of the provisions hereof be waived, temporarily or
permanently, except pursuant to a written instrument executed by the Company and
the Investor.
6.7. Governing Law.
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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
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Agreement, even if under such jurisdiction's choice of law or conflict of law
analysis, the substantive law of some other jurisdiction would ordinarily or
necessarily apply.
6.8. Counterparts; Facsimile Signatures.
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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. Facsimile
counterpart signatures to this Agreement shall be acceptable an binding.
* * * *
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IN WITNESS WHEREOF, the parties hereto have duly executed this Stock
Purchase Agreement in one or more counterparts as of the date first above
written.
PLY GEM INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman
NORTEK, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and General Counsel
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