AMENDMENT NO. 1 TO AMENDED AND
RESTATED SECURITIES PURCHASE AGREEMENT
This Amendment is made as of October 31, 1996, between Masco Corporation,
a Delaware corporation ("Masco"), and MascoTech, Inc., f/k/a Masco Industries,
Inc., a Delaware corporation (the "Company" or the "Issuer"), concerning that
certain Amended and Restated Securities Purchase Agreement (the "Securities
Purchase Agreement"), dated as of November 23, 1993, between Masco and the
Company. All capitalized terms not otherwise defined in this Amendment shall
have the meanings given them in the Securities Purchase Agreement.
A. Masco holds 24,824,690 shares of the Common Stock, par value $1.00
per share, of the Company (the "Tech Common Stock");
B. Concurrently herewith, the Company has, among other things,
repurchased from Masco 17,000,000 shares of Tech Common Stock;
C. In connection therewith, Masco and the Company desire to amend
certain provisions of the Securities Purchase Agreement as set forth herein.
IN CONSIDERATION of the mutual covenants and agreements contained in
this Amendment, the parties agree to amend the Securities Purchase Agreement as
follows:
1. Paragraph 1(b) is hereby amended to read in its entirety as follows:
(b) The Securities shall be issued in separate series with the
interest rate on each such series being a rate per annum that is the
higher of: (I) 400 basis points over the average Treasury Rate (as
hereinafter defined) for the week preceding the week in which the
notice of purchase referred to in Paragraph 2 is given to Masco; or
(ii) 75 basis points over the Comparable Debt Issuance Rate (as
hereinafter defined).
"Treasury Rate" means the rate for noncallable direct
obligations of the United States ("Treasury Notes") having a
remaining maturity of five years, as published in the Federal
Reserve Statistical Release H.15(519) (or any successor publication
provided by the Board of Governors of the Federal Reserve System)
under the heading "Treasury Constant Maturities." If a rate for
Treasury Notes having a remaining maturity of five years has not
been so published or reported for the preceding week as provided
above by 1:00 P.M., New York City time, on the day such notice is
given to Masco, then the Treasury Rate shall be calculated by the
Company and shall be a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean of
the secondary market bid rates, as of approximately 1:30 P.M., New
York City time, on the date of such notice, of three leading primary
United
States government securities dealers selected by the Company for the
purchase of Treasury Notes with a remaining maturity of five years.
The "Comparable Debt Issuance Rate" means a per annum rate of
interest determined as follows:
Each of the Company and Masco shall select an investment
banker within 3 business days from the date the notice of
purchase referred to in Paragraph 2 is given to Masco, and
those two investment bankers shall have 3 business days to
select a third investment banker. Each of the three
investment bankers shall have qualifications with respect to
the sale of debt instruments of manufacturing and industrial
companies. Each of the three investment bankers shall have 3
business days to determine, in its good faith opinion, the per
annum rate of interest that the Company would be required to
pay if it were to issue the relevant series of Securities to
third party investors in a transaction negotiated at
arms'-length and priced as of the date the notice of purchase
referred to in Paragraph 2 is given to Masco, and each banker
shall set forth its conclusion in a letter addressed to each
of Masco and the Company and delivered to each of them by
12:00 noon EST on the 10th day from the date of the notice of
purchase given to Masco. The arithmetic mean of the interest
rates determined by each of the three investment bankers shall
be the Comparable Debt Issuance Rate.
2. Paragraph 2(a) is hereby amended to read in its entirety as follows:
(a) Subject to the terms and conditions set forth herein, Masco
agrees to purchase, at par, at any time or from time to time on or
before March 31, 2002, upon the Company's written notice, up to $200
million aggregate principal amount of Securities (the "Commitment").
The Company's written notice shall specify the principal amount of
Securities that Masco is required to purchase (which for each
respective issuance of Securities shall be $10 million or any larger
multiple of $1,000,000). The interest rate for such Securities
shall be determined in accordance with the provisions of Paragraph
1(b).
3. The first sentence of Paragraph 3(a) is hereby amended to read in
its entirety as follows:
(a) Any closing of a sale of Securities to Masco hereunder shall
occur at Masco's offices on the 10th Business Day (as hereinafter
defined) after the Company gives Masco the written notice referred
to in Paragraph 2.
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4. Section 5.2(b) of the Form of Subordinated Note attached as Exhibit
A to the Securities Purchase Agreement is hereby amended to read in its entirety
as follows:
(b) The holder's right to tender under clause (a) above shall be
triggered upon the occurrence of either of the following events:
(I) Any person or group (an "other entity"), within the
meaning of Section 13 (d) (3) of the Securities Exchange Act
of 1934, shall attain beneficial ownership, within the meaning
of Rule 13d-3 adopted under the Securities Exchange Act of
1934, or at least 50% of the voting power for election of the
Directors of the Issuer, or,
(ii) The Issuer, directly or indirectly, consolidates or
merges with any other entity or sells or leases its properties
and assets substantially as an entirety to any other entity,
provided that this clause shall not apply to a transaction in
which the Company is the surviving company in any merger or
consolidation and in which the stock issued in such a
transaction is less than 40% of the common stock of the
Company issued and outstanding after the transaction.
5. A new Section 2 (c) is hereby added to read in its entirety as
follows:
(c) The Commitment shall terminate upon the occurrence of either
of the following events:
(i) Any person or group (an "other entity"), within the
meaning of Section 13 (d) (3) of the Securities Exchange Act
of 1934, shall attain beneficial ownership, within the meaning
of Rule 13d-3 adopted under the Securities Exchange Act of
1934, or at least 50% of the voting power for election of the
Directors of the Issuer, or,
(ii) The Issuer, directly or indirectly, consolidates or
merges with any other entity or sells or leases its properties
and assets substantially as an entirety to any other entity,
provided that this clause shall not apply to a transaction in
which the Company is the surviving company in any merger or
consolidation and in which the stock issued in such a
transaction is less than 40% of the common stock of the
Company issued and outstanding after the transaction.
6. All other terms and conditions of the Securities Purchase Agreement
are hereby ratified and confirmed and remain in full force and effect.
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IN WITNESS WHEREOF, the parties have duly executed and delivered
this Amendment as of the date first above written.
MASCO CORPORATION
By:/s/ John R. Leekley
Name: John R. Leekley
Title: Senior Vice President and
General Counsel
MASCOTECH, INC.
By: /s/ Timothy Wadhams
Name: Timothy Wadhams
Title: Vice President-Controller and
Treasurer
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