Registration No. 333 -
As filed with the Securities and Exchange Commission
on April 15, 1999
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. 1998 EQUITY AND CASH INCENTIVE PLAN
(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)
CALCULATION OF REGISTRATION FEE
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Proposed
Title of Proposed Maximum
Securities Maximum Aggregate Amount of
to be Amount to be Offering Price Offering Registration
Registered Registered (1) Per Share(2) Price(2) Fee
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Common Stock, Par
Value $1.00 Per 475,000 $25.09 $11,643,471 $3,237(2)
Share (1)
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(1) Persons eligible to receive awards under the Plan being registered hereunder
(the "Plan") may receive shares of or may receive options to purchase shares of
Special Common Stock, par value $1.00 per share, which are convertible into
Common Stock. No more than 475,000 shares of Common Stock and Special Common
Stock in the aggregate may be issued. There is also registered hereunder 475,000
attached Rights to purchase one one-hundredth of a share of Series A
Participating Preference Stock of the Company.
(2) Outstanding options on the date hereof have a weighted average exercise
price of $24.4616 and a maximum aggregate offering price of $10,682,380. The
registration fee payable with respect to such options is $2,970. There are
38,300 shares available for grant under the Plan, 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 April 9, 1999. The registration fee for the shares not yet subject
to outstanding options is $267. The total registration fee payable in respect of
the shares being registered hereunder is $3,237.
Exhibit Index on Page 7.
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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, 1998 filed with the Securities and Exchange Commission (the
"Commission") on March 30, 1999.
(b) The Company's Current Reports on Form 8-K filed with the Commission on
January 11, 1999, March 10, 1999 and April 8, 1999.
(c) All other reports filed by the Company with the Commission pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") since the end of the fiscal year covered by the Company's
Annual Report referred to above.
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. Mr. Donnelly owns
21,007 shares of Common Stock (including 13,914 shares subject to exercisable
options) and 10 shares of Special Common Stock.
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
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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 Nortek, Inc. 1998 Equity and Cash Incentive Plan (Exhibit 10.1 to Form 10-Q
filed August 18, 1998, File No. 1-6112).
4.2 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 March 1, 2004 (Exhibit 4.5 to Form 10-K filed March
25, 1994, File No. 1-6112).
4.3 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).
4.4 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).
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4.5 Indenture dated as of July 31, 1998 between the Company and State Street
Bank and Trust Company, as Trustee relating to the 8.875% Series A and B
Senior Notes due August 1, 2008 (Exhibit 4.1 to Registration Statement No.
333-64731 filed September 30, 1998).
4.6 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 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.
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(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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company 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 the City of Providence, Rhode Island on this 15th day of April,
1999.
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 April 15, 1999
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Richard L. Bready Directors and President
(Principal Executive
Officer)
/s/Richard J. Harris Vice President and April 15, 1999
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Richard J. Harris Treasurer (Principal
Financial Officer) and
Director
/s/ Almon C. Hall Vice President and April 15, 1999
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Almon C. Hall Controller (Principal
Accounting Officer)
/s/ Phillip L. Cohen Director April 14, 1999
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Phillip L. Cohen
/s/ William I. Kelly Director April 14, 1999
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William I. Kelly
/s/ J. Peter Lyons Director April 15, 1999
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J. Peter Lyons
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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:
Exhibit Number
4.1 Nortek, Inc. 1998 Equity and Cash Incentive Plan (Exhibit 10.1 to Form 10-Q
filed August 18, 1998, File No. 1-6112).
4.2 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).
4.3 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).
4.4 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).
4.5 Indenture dated as of July 31, 1998 between the Company and State Street
Bank and Trust Company, as Trustee relating to the 8.875% Series A and B
Senior Notes due August 1, 2008 (Exhibit 4.1 to Registration Statement No.
333-64731 filed September 30, 1998).
4.6 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 Form of Stock Option Certificate.
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Exhibit 5
[Nortek Letterhead]
KEVIN W. DONNELLY
VICE PRESIDENT, GENERAL COUNSEL and SECRETARY
e-mail address: [email protected]
April 15, 1999
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 475,000 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 1998 Equity and Cash Incentive Plan (the "Plan").
I am Vice President and General Counsel of the Company and am familiar with
the proceedings taken from time to time in connection with issuances of the
Company's capital stock, and the adoption of the Plan. 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.
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 Plan, 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,
/s/ Kevin W. Donnelly
Exhibit 23.2
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 March 22, 1999
included in Nortek, Inc.'s Form 10-K for the year ended December 31, 1998 and to
all references to our Firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Boston, Massachusetts
April 15, 1999
Exhibit 99.1
NORTEK, INC.
1998 EQUITY AND CASH INCENTIVE PLAN
Stock Option Certificate
Stock Option granted by Nortek, Inc., a Delaware corporation, (the "Company") to
__________________, an employee of the Company or of a subsidiary of the
Company, (the "Employee") pursuant to the Company's 1998 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] [Special Common Stock], $1.00 par value
("Common Stock"), at a price of ___________ per share. The options are to be
non-statutory options within the meaning of Section 422(b) of the Internal
Revenue Code (the "Code").
The options shall expire on _______________ and are 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 immediately; an
additional __________ of the shares on and after ____________________; and an
additional __________ of the 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 Chairman and Chief Executive Officer, 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 Chairman and Chief Executive Officer
Date: _____________________
Accepted and Agreed:
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Employee
