EXHIBIT 4.9
First Amendment, dated February 10, 2005, to
SECURITYHOLDERS AGREEMENT
THL - NORTEK INVESTORS, LLC
Dated as of August 27, 2004
THIS FIRST AMENDMENT, dated as of February 10, 2005 (the "First
Amendment"), amends that certain SECURITYHOLDERS AGREEMENT, dated as of August
27, 2004 (the "Original Agreement"), among THL - Nortek Investors, LLC, a
Delaware limited liability company (the "Company"), Nortek Holdings, Inc., a
Delaware corporation formerly known as THL Buildco Holdings, Inc. ("Holdings"),
▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund V, L.P. and the other THL Investors (as defined in the
Original Agreement), ▇▇▇▇▇▇ Investments Employees' Securities Company I LLC,
▇▇▇▇▇▇ Investments Employees' Securities Company II LLC, ▇▇▇▇▇▇ Investments
Holdings, LLC, Third Party Investors (as defined therein) and Management
Securityholders (as defined therein). Capitalized terms used and not otherwise
defined in this Amendment are used herein as defined in the Original Agreement.
As used herein, the term "this Agreement" means the Original Agreement, as
amended by this First Amendment.
WHEREAS, the Securityholders entered into the Original Agreement in August
2004 and the transactions contemplated by the first recital to the Original
Agreement were completed;
WHEREAS, the Company, Holdings and the Securityholders now want to effect
a recapitalization transaction pursuant to which: (i) the Company will transfer
to NTK Holdings, Inc., a new Delaware corporation ("NTK Holdings") all of the
outstanding shares of Holdings in exchange for the issuance to the Company of
shares of the common stock of NTK Holdings, as a result of which exchange NTK
Holdings will become a wholly-owned subsidiary of the Company and Holdings will
become a wholly-owned subsidiary of NTK Holdings, and (ii) NTK Holdings will
issue and sell certain discount notes, it being contemplated that a portion of
the proceeds from such issuance will be used to pay a dividend to the Company
which, in turn, will make a distribution to its members; and
WHEREAS, the Securityholders and NTK Holdings believe it to be in their
respective best interests and in the best interests of the Company that they
enter into this Amendment so that the terms of the Original Agreement will
continue (adjusted appropriately to reflect the interposition of NTK Holdings as
a new intermediate holding company) to provide certain rights and restrictions
with respect to the Securities owned by them or their permitted transferees;
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth in this Agreement, the parties hereto agree as follows:
1. Joinder of NTK Holdings. By the execution of this Amendment, NTK
Holdings becomes and is made a party to this Agreement.
2. Changes to Section 1.1.
(a) Section 1.1(a) of the Original Agreement is amended as follows:
(i) The phrase "employees of Holdings or its subsidiaries" is
hereby deleted and replaced with the phrase "employees of NTK
Holdings or its subsidiaries"; and
(ii) The phrase "merges, of Holdings or any of their
subsidiaries" is hereby deleted and replaced with the phrase
"merges, of NTK Holdings or any of their subsidiaries".
(b) Section 1.1(c) of the Original Agreement is amended by deleting
the phrase "common stock of Holdings" and substituting therefor the phrase
"common stock of NTK Holdings".
3. Global Change of "Holdings Stock" to "NTK Holdings Stock".
(a) All references in the Original Agreement to "Holdings Stock"
(including those in clause (ii) of the first sentence of Section 6.4 of
the Original Agreement and in clause (ii) of the first sentence of Section
7.1 of the Original Agreement) are deleted and replaced with references to
"NTK Holdings Stock".
(b) The corresponding change is made in the definitions section
(Section 11.1) so that:
(i) The term "Holdings Stock" and related definition are
deleted and replaced (in the appropriate alphabetical order) with
the following: "The term `NTK Holdings Stock' means shares of common
stock of NTK Holdings that are distributed by the Company to the
Securityholders";
(ii) In clause (ii) of the definition of Common Stock the word
"NTK" is hereby inserted immediately prior to the words "Holdings
Stock"; and
(iii) In clause (c) of the definition of each of the terms
Management Securities, Third Party Investor Securities and THL
Securities, the phrase "securities of the Company, Holdings or" is
deleted and replaced, in each case, with the phrase "securities of
the Company, NTK Holdings or".
(c) Section 7.1 of the Original Agreement is hereby further amended
by deleting the phrase "and Holdings, in the case of clause (ii) above"
and replacing it with the phrase "and NTK Holdings, in the case of clause
(ii) above".
(d) References in Exhibit A to the Original Agreement (the form or
Registration Rights Agreement) to "Nortek Holdings, Inc." (including
references thereto in the preamble and signature blocks of that form
agreement) will be deemed to be references to "NTK Holdings, Inc."
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4. Change to Subsection 8.2(i). Paragraph (i) of Section 8.2 is amended by
deleting the phrase "each of Holdings and Nortek, Inc." and substituting
therefor the phrase "each of NTK Holdings, Holdings and Nortek, Inc."
5. Additional Definitions. Section 11.1 is further amended by adding the
following additional definitions:
(a) "`First Amendment' means the first amendment, dated February 10,
2005, to this Agreement."
(b) "`NTK Holdings' means NTK Holdings, Inc., a Delaware corporation
and, as of the date of the First Amendment, the holder of all of the
outstanding common stock of Holdings."
6. Additional Provisions.
(a) Effectiveness. This Amendment will take effect from and as of
the time of the exchange of shares described in the recitals of this First
Amendment. The undersigned acknowledge, agree and confirm that their
execution of this Amendment is sufficient to cause this Amendment to take
effect and to be binding upon both them and the other Securityholders, and
constitutes all consents and approvals required under Sections 11.7 and
11.5 of the Original Agreement.
(b) Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments
and documents as any other party hereto may reasonably request in order to
carry out the intent and accomplish the purposes of this Amendment and the
consummation of the transactions contemplated hereby.
(c) Governing Law. This Amendment and the rights and obligations of
the parties hereunder shall be governed by, and construed and interpreted
in accordance with, the law of the State of Delaware applicable to
agreements signed and to be performed in that state, without giving effect
to any choice of law principles thereof that would cause application of
the laws of another jurisdiction.
(d) Jurisdiction, Severability, Interpretation, etc. The provisions
of Sections 11.13 and 11.14 of the Original Agreement are incorporated
into this Amendment by reference and apply to this Amendment to the same
extent as they would if set forth in full herein.
(e) Headings; Execution in Counterparts. The headings and captions
contained herein are for convenience and shall not control or affect the
meaning or construction of any provision hereof. This Amendment may be
executed in any number of counterparts (or by the parties in separate
counterparts), each of which shall be deemed to be an original and all of
which together shall constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
THL-NORTEK INVESTORS, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
______________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary
NORTEK HOLDINGS, INC.
(f/k/a THL Buildco Holdings, Inc.)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President, General Counsel and
Secretary
NTK HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President, General Counsel and
Secretary
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▇▇▇▇▇▇ ▇. ▇▇▇ EQUITY FUND V, L.P.
By: THL Equity Advisors V, LLC, its general
partners
By: ▇▇▇▇▇▇ ▇. ▇▇▇ Partners, L.P., its sole
member
By: ▇▇▇▇▇▇ ▇. ▇▇▇ Advisors LLC, its general
partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇ ▇. ▇▇▇ PARALLEL FUND V, L.P.
By: THL Equity Advisors V, LLC, its general
partner
By: ▇▇▇▇▇▇ ▇. ▇▇▇ Partners, L.P., its sole
member
By: ▇▇▇▇▇▇ ▇. ▇▇▇ Advisors LLC, its general
partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
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▇▇▇▇▇▇ ▇. ▇▇▇ EQUITY (CAYMAN)
FUND V, L.P.
By: THL Equity Advisors V, LLC, its general
partner
By: ▇▇▇▇▇▇ ▇. ▇▇▇ Partners, L.P., its sole
member
By: ▇▇▇▇▇▇ ▇. ▇▇▇ Advisors LLC, its general
partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
1997 ▇▇▇▇▇▇ ▇. ▇▇▇ NOMINEE TRUST
By: US Bank, N.A., not personally, but
solely as Trustee under the 1997
▇▇▇▇▇▇ ▇. ▇▇▇ Nominee Trust
By: ________________________________________
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇ INVESTORS LIMITED
PARTNERSHIP
By: THL Investment Management Corp., its
general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
______________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Chief Executive Officer
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▇▇▇▇▇▇ INVESTMENTS EMPLOYEES'
SECURITIES COMPANY I LLC
By: ▇▇▇▇▇▇ Investments Holdings, LLC, its
managing member
By: ▇▇▇▇▇▇ Investments, LLC, its managing
member
By:_________________________________________
Name:
Title:
▇▇▇▇▇▇ INVESTMENTS EMPLOYEES'
SECURITIES COMPANY II LLC
By: ▇▇▇▇▇▇ Investments Holdings, LLC, its
managing member
By: ▇▇▇▇▇▇ Investments, LLC, its managing
member
By:_________________________________________
Name:
Title:
▇▇▇▇▇▇ INVESTMENTS HOLDINGS, LLC
By: ▇▇▇▇▇▇ Investments, LLC, its managing
member
By:_________________________________________
Name:
Title:
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THIRD PARTY INVESTORS
RGIP, LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
_________________________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Managing Member
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MANAGEMENT SECURITYHOLDERS
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________________ ___________________________________
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___________________________________ ___________________________________
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___________________________________ ___________________________________
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___________________________________ ___________________________________
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___________________________________ ___________________________________
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