-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CISLM6cZC0E1SJxNwiRDJ4ZIidK3e4M9whv97Kr/BhGRfZ+Q22SlGI/em6brvUCn Kpn0S58lklMGjLV+80/1sQ== 0000072423-97-000022.txt : 19971104 0000072423-97-000022.hdr.sgml : 19971104 ACCESSION NUMBER: 0000072423-97-000022 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19971031 EFFECTIVENESS DATE: 19971031 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: NORTEK INC CENTRAL INDEX KEY: 0000072423 STANDARD INDUSTRIAL CLASSIFICATION: AIR COND & WARM AIR HEATING EQUIP & COMM & INDL REFRIG EQUIP [3585] IRS NUMBER: 050314991 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-39293 FILM NUMBER: 97706329 BUSINESS ADDRESS: STREET 1: 50 KENNEDY PLZ CITY: PROVIDENCE STATE: RI ZIP: 02903 BUSINESS PHONE: 4017511600 MAIL ADDRESS: STREET 1: 50 KENNEDY PLAZA CITY: PROVIDENCE STATE: RI ZIP: 02903 S-8 1 Registration No. 333 - ____________ SECURITIES AND EXCHANGE COMMISSION Washington D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 NORTEK, INC. (Exact name of issuer as specified in its charter) Delaware 05-0314991 (State or other jurisdiction of (I.R.S. Employer incorporation or organization Identification No.) 50 Kennedy Plaza, Providence, Rhode Island 02903 (Address of Principal Executive Offices) (Zip Code) NORTEK, INC. 1997 EQUITY AND CASH INCENTIVE PLAN NORTEK, INC. 1997 STOCK OPTION PLAN FOR DIRECTORS (Full title of the plan) Copy to Richard L. Bready, Chairman Kevin W. Donnelly, Esq. Nortek, Inc., 50 Kennedy Plaza Nortek, Inc., 50 Kennedy Plaza Providence, Rhode Island 02903 Providence, Rhode Island 02903 (Name and address of agent for service) (401) 751-1600 (Telephone number, including area code, of agent for service) The Exhibit Index can be found on Page 11. CALCULATION OF REGISTRATION FEE Proposed Proposed Title of Maximum Maximum Securities Amount to Offering Aggregate Amount of to be be Regis- Price Offering Registra- Registered tered(1) Per Share(2) Price(2) tion Fee Common Stock, Par Value $1.00 Per Share(3) 480,000 $23.01 $11,044,625 $3,346.86 (1) Persons eligible to receive awards under the Plans being registered hereunder (the "Plans") may receive shares of or may receive options to purchase shares of Special Common Stock, par value $1.00 per share, which is convertible into Common Stock. No more than 480,000 shares of Common Stock and Special Common Stock in the aggregate may be issued. (2) Outstanding options on the date hereof have an average exercise price of $23.03 and a maximum aggregate offering price of $8,191,200, the registration fee payable with respect to such options is $2,482.18. There are 124,400 shares available for grant under the Plans, at exercise prices still to be determined. For the purpose of determining the registration fee, the maximum per share and aggregate offering prices have been determined, pursuant to Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the average of the high and low prices of the Common Stock reported on the New York Stock Exchange on October 28, 1997. The registration fee for the shares not yet subject to outstanding options is $864.68. The total registration fee payable in respect of the shares being registered hereunder is $3,346.86. (3) There is also registered hereunder 480,000 attached Rights to purchase one one-hundredth of a share of Series A Participating Preference Stock of the Company. Part II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference Nortek, Inc. (the "Company") hereby incorporates the following documents by reference: (a) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996. (b) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended March 29, 1997 and June 28, 1997. (c) The Company's Current Reports on Form 8-K and 8-K/A filed with the Commission on March 5, 1997, March 13, 1997, May 5, 1997, July 29, 1997, August 27, 1997, September 10, 1997 and September 12, 1997. (d) The description of the Company's Common Stock contained in its registration statement on Form 8-A filed with the Commission on April 23, 1981 and the description of the Company's Special Common Stock contained in its registration statement on Form 8-A filed with the Commission on November 25, 1986. All reports and other documents subsequently filed by the Company pursuant to Sections 13(a) and (c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel The validity of the shares of Common Stock (and the attached Rights) and Special Common Stock offered hereby is being passed upon by Kevin W. Donnelly, Vice President, General Counsel and Secretary of the Company. Item 6. Indemnification of Directors and Officers. Section 145 of the Delaware General Corporation Law ("DGCL") provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Section 145 further provides that a corporation similarly may indemnify any such person serving in any such capacity who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor, against expenses actually and reasonably incurred in connection with the defense or settlement of such action or suit if he acted in good faith in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or such other court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. Section 102(b)(7) of the DGCL permits a corporation to include in its certificate of incorporation a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL (relating to unlawful payment of dividends and unlawful stock purchase and redemption) or (iv) for any transaction from which the director derived an improper personal benefit. The Company's Certificate of Incorporation provides that its directors shall not be liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director except to the extent that exculpation from liabilities is not permitted under the DGCL as in effect at the time such liability is determined. The Company's By-Laws further provide that Registrant shall indemnify its directors and officers to the fullest extent permitted by the DGCL. The directors and officers of the Company are covered under directors' and officers' liability insurance policies maintained by the Company. Item 7. Exemption From Registration Claimed Not applicable. Item 8. Exhibits Exhibits marked with an asterisk are filed herewith. The remainder of the exhibits have heretofore been filed with the Commission and are incorporated herein by reference: Exhibit Number 4.1 Restated Certificate of Incorporation of Nortek, Inc. (Exhibit 2 to form 8-K filed April 23, 1987). 4.2 Amendment to Restated Certificate of Incorporation of Nortek, Inc. effective May 10, 1989 (Exhibit 3.2 to Form 10-K filed March 30, 1990, File No. 1-6112). 4.3 By-laws of Nortek, Inc. (as amended through September 19, 1996) (Exhibit 3.3 to Form 10-Q filed November 5, 1996, File No. 1-6112). 4.4 Indenture dated as of February 14, 1994 between the Company and State Street Bank and Trust Company, as Trustee, relating to the 9 7/8% Senior Subordinated Notes due 2004 (Exhibit 4.5 to Form 10-K filed March 25, 1994, File No. 1-6112). 4.5 Indenture dated as of March 17, 1997 between the Company and State Street Bank and Trust Company, as Trustee relating to the 9.25% Series A and Series B Senior Notes due March 15, 2007 (Exhibit 4.2 to Registration Statement No. 333-25505 filed April 18, 1997). 4.6 Indenture dated as of August 26, 1997 between the Company and State Street Bank and Trust Company, as Trustee relating to the 9.125% Series A and B Senior Notes due September 1,2007. (Exhibit 4.1 to Registration Statement No. 333-36711 filed September 30, 1997). 4.7 Second Amended and Restated Rights Agreement dated as of April 1, 1996 between the Company and State Street Bank and Trust Company, as Rights Agent (Exhibit 1 to Form 8-K filed April 2, 1996). *5. Opinion of Kevin W. Donnelly, Esq.. *23.1 Consent of Kevin W. Donnelly, Esq. (contained in Exhibit 5). *23.2 Consent of Arthur Andersen LLP. 24. Power of Attorney (see page 9 of the Registration Statement). 99.1 Nortek, Inc. 1997 Equity and Cash Incentive Plan (Exhibit 10.1 to Form 10-Q filed May 12, 1997, File No. 1-6112). 99.2 Nortek, Inc. 1997 Stock Option Plan for Directors (Exhibit 10.2 to Form 10-Q filed May 12, 1997, File No. 1- 6112). *99.3 Form of Stock Option Certificate. Item 9. Undertakings (a) The Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post- effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if the information required to be included in a post- effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) That, for the purposes of determining any liability under the Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post- effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b)The undersigned Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c)Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers, and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Providence, Rhode Island on this 31st day of October, 1997. NORTEK, INC. By: /s/Richard L. Bready Richard L. Bready Chairman of the Board We, the undersigned officers and directors of the Company, hereby severally constitute and appoint Richard L. Bready, Richard J. Harris and Kevin W. Donnelly, and each of them singly, our true and lawful attorneys or attorney to execute in our names, in the capacities indicated below, any and all amendments to this registration statement on Form S-8, and all instruments necessary or incidental in connection therewith, and to file the same with the Commission. Each of said attorneys shall have power to act hereunder with or without any other of said attorneys, and shall have full power of substitution and resubstitution. Each of said attorneys shall have full power and authority to do and perform in the name and on behalf of each of the undersigned, in any and all capacities, every act whatsoever requisite or necessary to be done in the premises, as fully and to all intents and purposes as each of the undersigned might or could do in person, and each of the undersigned hereby ratifies and approves the acts of said attorneys and each of them. Pursuant to the requirements of the Act, this registration statement has been signed below by the following persons in the capacities and on the date indicated. Name Title Date /s/Richard L. Bready Chairman of the Board of October 31, 1997 Richard L. Bready Directors and President (Principal Executive Officer) /s/Richard J. Harris Vice President and October 31, 1997 Richard J. Harris Treasurer (Principal Financial Officer) and Director /s/Almon C. Hall Vice President and October 31, 1997 Almon C. Hall Controller (Principal Accounting Officer) /s/Phillip L. Cohen Director October 28, 1997 Phillip L. Cohen /s/William I. Kelly Director October 25, 1997 William I. Kelly /s/J. Peter Lyons Director October 28, 1997 J. Peter Lyons EXHIBIT INDEX Exhibits marked with an asterisk are filed herewith. The remainder of the exhibits have heretofore been filed with the Commission and are incorporated herein by reference: Sequentially Exhibit Number Numbered Pages 4.1 Restated Certificate of Incorporation of Nortek, Inc. (Exhibit 2 to form 8-K filed April 23, 1987). 4.2 Amendment to Restated Certificate of Incorporation of Nortek, Inc. effective May 10, 1989 (Exhibit 3.2 to Form 10-K filed March 30, 1990, File No. 1-6112). 4.3 By-laws of Nortek, Inc. (as amended through September 19, 1996) (Exhibit 3.3 to Form 10-Q filed November 5, 1996, File No. 1-6112). 4.4 Indenture dated as of February 14, 1994 between the Company and State Street Bank and Trust Company, as Trustee, relating to the 9 7/8% Senior Subordinated Notes due 2004 (Exhibit 4.5 to Form 10-K filed March 25, 1994, File No. 1-6112). 4.5 Indenture dated as of March 17, 1997 between the Company and State Street Bank and Trust Company, as Trustee relating to the 9.25% Series A and Series B Senior Notes due March 15, 2007 (Exhibit 4.2 to Registration Statement No. 333-25505 filed April 18, 1997). 4.6 Indenture dated as of August 26, 1997 between the Company and State Street Bank and Trust Company, as Trustee relating to the 9.125% Series A and B Senior Notes due September 1,2007. (Exhibit 4.1 to Registration Statement No. 333-36711 filed September 30, 1997). 4.7 Second Amended and Restated Rights Agreement dated as of April 1, 1996 between the Company and State Street Bank and Trust Company, as Rights Agent (Exhibit 1 to Form 8-K filed April 2, 1996). *5. Opinion of Kevin W. Donnelly, Esq. *23.1 Consent of Kevin W. Donnelly, Esq. (contained in Exhibit 5). *23.2 Consent of Arthur Andersen LLP. 24. Power of Attorney (see page 9 of the Registration Statement). 99.1 Nortek, Inc. 1997 Equity and Cash Incentive Plan (Exhibit 10.1 to Form 10-Q filed May 12, 1997, File No. 1-6112). 99.2 Nortek, Inc. 1997 Stock Option Plan for Directors (Exhibit 10.2 to Form 10-Q filed May 12, 1997, File No. 1-6112). *99.3 Form of Stock Option Certificate. EX-5 2 Exhibit 5 October 31, 1997 Board of Directors NORTEK, INC. 50 Kennedy Plaza Providence, RI 02903 Ladies and Gentlemen: This opinion is rendered to you in connection with the proposed issue by Nortek, Inc. (the "Company") of up to 480,000 shares in the aggregate which may be shares of its Common Stock, $1.00 par value, or shares of its Special Common Stock, $1.00 par value (the "Shares"), together with such Preference Stock Purchase Rights as may be issued in connection with the Common Stock pursuant to the provisions of the Second Amended and Restated Rights Agreement dated as of April 1, 1996, (the "Rights Agreement"), between the Company and State Street Bank and Trust Company, as Rights Agent (the "Rights"), covered by the Registration Statement referred to below. The Shares are to be issued in accordance with the terms of stock options and other awards granted pursuant to the Company's 1997 Equity and Cash Incentive Plan and 1997 Stock Option Plan for Directors (the "Plans"). I am Vice President and General Counsel of the Company and am familiar with the proceedings taken from time to time in connection with issues of the Company's capital stock, and the adoption of the Plans. I have examined such certificates, records, documents and papers and I have deemed necessary for the purposes of this opinion, including a copy of the Company's Registration Statement on Form S-8 being filed with the Securities and Exchange Commission contemporaneously herewith. Board of Directors October 31, 1997 Page two Based upon the foregoing, I am of the opinion that when duly executed certificates representing the Shares have been issued against receipt of the agreed consideration therefor in accordance with the terms of the stock options and other awards granted pursuant to the terms of the Plans, the Shares will have been validly issued and will be fully paid and nonassessable. I am further of the opinion that any Rights issuable in accordance with the terms of the Rights Agreement will be validly issued with no additional consideration required to be paid therefor under the terms of the Rights Agreement. I hereby consent to the Company's filing of this opinion as an exhibit to the above-mentioned Registration Statement and amendments thereto. Very truly yours, NORTEK, INC. /s/Kevin W. Donnelly Kevin W. Donnelly Vice President, General Counsel & Secretary EX-23 3 Exhibit 23.2 [Arthur Andersen LLP Letterhead] CONSENT OF INDEPENDENT PUBLIC ACCOUNTS To Nortek, Inc. As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated February 12, 1997 included in Nortek, Inc.'s Form 10- K for the year ended December 31, 1996. /s/ARTHUR ANDERSEN LLP October 30, 1997 EX-99 4 Exhibit 99.3 1997 EQUITY AND CASH INCENTIVE PLAN ----------------------------------- Stock Option Certificate Stock Option granted by Nortek, Inc., a Delaware corporation, (the "Company") on ________________ to __________________, an employee of the Company or of a subsidiary of the Company, (the "Employee") pursuant to the Company's 1997 Equity and Cash Incentive Plan, (the "Plan"). This certificate evidences the grant by the Company to the Employee of an option to purchase, on the terms provided herein and in the Plan, a total of _______ shares of the Company's Common Stock, $1.00 par value ("Common Stock"), at a price of ___________ per share. This option is a non- statutory stock option within the meaning of Section 422(b) of the Internal Revenue Code (the "Code"). This option shall terminate on _______________ and is subject to earlier termination as provided in the Plan. Subject to the other terms hereof and of the Plan, this option is exercisable as follows: _______ shares on and ______________, _______________ shares on and after _______________________; and __________ shares on and after ___________________. Each election to exercise this option shall be in writing, signed by the proper person, and received by the Company at its principal office in Providence, Rhode Island, accompanied by this certificate and payment in full as provided in the Plan. This certificate and the option evidenced hereby are subject to the provisions of the Plan, a copy of which is furnished to the Employee herewith. IN WITNESS WHEREOF, Nortek, Inc. has caused this certificate to be executed by its Vice President and Treasurer, hereunto authorized under its corporate seal duly attested. This option is granted at the Company's office, on the date stated below. Attest: NORTEK, INC. ___________________________ By: ____________________________ Secretary Vice President and Treasurer Date: _____________________ Accepted and Agreed: ___________________________ Employee -----END PRIVACY-ENHANCED MESSAGE-----