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EXHIBIT 10.q
AMENDED AND RESTATED
SECURITIES PURCHASE AGREEMENT
THIS AMENDED AND RESTATED SECURITIES PURCHASE AGREEMENT, dated as of
November 23, 1993 (hereinafter referred to as "this Agreement"), amends and
restates the Securities Purchase Agreement, dated as of March 31, 1993, between
MascoTech, Inc., a Delaware corporation (formerly known as Masco Industries,
Inc., the "Company"), and Masco Corporation, a Delaware
corporation ("Masco").
WHEREAS, the Company desires to have the right to sell to Masco, and Masco
is willing to purchase from the Company at its request, from time to time, up to
$200 million principal amount of subordinated debt securities upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, the parties agree as follows:
1. Authorization of Issues of Securities. (a) The Company has authorized
the issuance and delivery of separate series of subordinated debt securities
("Securities"), such Securities to have substantially the same terms and
provisions as the form of subordinated note attached hereto as Exhibit A.
(b) The Securities shall be issued in separate series with the interest
rate on each such series being a rate per annum that is 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. "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.
(c) Each issuance of Securities shall constitute a separate and discrete
series of securities and may be redeemed pursuant to Section 5.1 of the form of
subordinated note attached hereto as Exhibit A without regard to the redemption
of any other Securities.
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(d) The parties confirm that the Securities constitute "Subordinated
Debentures" under the Registration Agreement between them dated as of
March 31, 1993.
2. Obligation to Purchase. (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, 1997, 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 million) and the interest
rate, as determined in accordance with the provisions of Paragraph 1(b). The
interest rate set forth in such notice shall be final and binding in the absence
of manifest error.
(b) The Commitment is not revolving in nature, and any Securities
repurchased, redeemed or otherwise acquired by the Company shall not restore the
Commitment. The Company may reduce or terminate the unused portion of the
Commitment at any time by written notice to Masco.
3. Closing. (a) Any closing of a sale of Securities to Masco hereunder
shall occur at Masco's offices on the tenth Business Day (as hereinafter
defined) after the Company gives Masco the written notice referred to in
Paragraph 2. The term "Business Day" shall mean any day, except a Saturday,
Sunday or other day on which commercial banks in New York City are authorized by
law to close, on which commercial banks are open for international business
(including dealings in dollar deposits) in London.
(b) At each closing, provided the Company has paid all commitment fees then
due and payable under Paragraph 4 and provided the Company's representations and
warranties set forth in Paragraphs 6(b) through 6(f) shall then be true and
correct, Masco shall deliver to the Company immediately available funds in an
amount equal to the aggregate principal amount of Securities being purchased.
(c) At each closing, the Company shall deliver to Masco one or more
certificates for the Securities being issued, registered in the name of Masco
(or such other person as Masco may designate prior to the closing) with any such
legend that may be appropriate and in such denominations of $1,000 and any
multiple thereof as Masco may specify prior to the closing. The Company's
delivery of the certificates representing the Securities being purchased shall
automatically be deemed to be a representation by the Company that all of the
representations and warranties set forth in Paragraphs 6(b) through 6(f) are
true and correct as of the date of closing. The accuracy of such representations
and warranties shall be a condition to Masco's obligation to purchase such
Securities.
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4. Commitment Fee. (a) The Company shall pay Masco a commitment fee for
Masco's Commitment hereunder at the rate of 0.125% per annum on the daily
average amount by which the Commitment exceeds the principal amount of
Securities purchased by Masco hereunder (including Securities previously issued
and redeemed).
(b) The commitment fee shall continue to accrue from and including the date
hereof to but excluding the date on which the aggregate principal amount of
Securities purchased by Masco hereunder (including Securities previously issued
and redeemed) equals the Commitment (as may be reduced or terminated by the
Company pursuant to Paragraph 2(b)). Such fee shall be computed for the actual
number of days elapsed and shall be payable quarterly on the last day of each
calendar quarter, and upon fulfillment of the Commitment in its entirety or the
earlier termination of the Commitment.
5. Representations of Masco. Masco represents and warrants to the Company
that:
(a) Masco is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is authorized by its
certificate of incorporation to carry on its business as now conducted.
(b) The execution, delivery and performance by Masco of this Agreement and
the consummation by Masco of the transactions contemplated hereby are within the
corporate powers of Masco and have been duly authorized by all necessary
corporate action on the part of Masco. This Agreement constitutes a valid and
binding agreement of Masco.
(c) The execution, delivery and performance of this Agreement do not result
in any violation by Masco of any indenture, mortgage or other agreement or
instrument by which Masco or any of its Subsidiaries (as hereinafter defined) is
bound.
(d) No authorization, consent or approval of, or registration or filing
with, any governmental or public body or regulatory authority is required on the
part of Masco which has not been obtained for the purchase by Masco of the
Securities contemplated by this Agreement, and such a purchase will not result
in any violation by Masco of any of the terms or provisions of its certificate
of incorporation or by-laws.
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(e) Masco has received such information from the Company as it deems
necessary and sufficient in order to make an informed investment decision
regarding its commitment to purchase Securities hereunder. Masco is a
sophisticated investor, with such knowledge and experience in financial matters
that it is capable of evaluating the risks and merits of an investment in the
Securities, and is purchasing such Securities for its own account for investment
and (subject, to the extent necessary, to the disposition of its property being
at all times within its control) not with a view to any distribution or other
disposition thereof, and is proceeding on the assumption that it must bear the
economic risk of any such investment for an indefinite period since such
Securities may not be sold except as set forth below. If Masco decides to
dispose of any of the Securities acquired pursuant to this Agreement or any
securities issued in exchange or substitution therefor (which it does not
presently contemplate), it will not offer, sell or deliver any such securities,
directly or indirectly, except in compliance with the Securities Act of 1933.
6. Representations of the Company. The Company represents and warrants to
Masco that:
(a) (i) As of the date hereof, the Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted.
(ii) As of the date hereof, (1) each of the Company's Subsidiaries is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has all corporate powers and all
material governmental licenses, authorization, consents and approvals
required to carry on its business as now conducted, and (2) all of the
outstanding shares of capital stock of each such Subsidiary have been duly
authorized and validly issued and are fully paid and non-assessable and are
owned directly or indirectly by the Company (except for directors'
qualifying shares of certain such Subsidiaries and equity interests in
Subsidiaries owned by Persons (as hereinafter defined) other than the
Company which individually or in the aggregate are not material to the
Company and its Subsidiaries taken as a whole) free and clear of all Liens
(as hereinafter defined), except Liens not material to the Company and its
Subsidiaries taken as a whole.
(iii) The following terms, as used herein, have the following
meanings:
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"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof. "Subsidiary" means, with respect to any Person, any corporation or
other entity of which a majority of the capital stock or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time
directly or indirectly owned by such Person.
(b) The execution, delivery and performance by the Company of this
Agreement and the consummation by the Company of the transactions contemplated
hereby are within the Company's corporate powers and have been duly authorized
by all necessary corporate action on the part of the Company. This Agreement
constitutes a valid and binding agreement of the Company.
(c) The Securities issuable from time to time pursuant to this Agreement
have been duly authorized by all necessary corporate action on the part of the
Company and, if and when such Securities are issued pursuant to this Agreement,
such Securities will constitute valid and binding obligations of the Company.
(d) Assuming the truth and accuracy of Masco's representations and
warranties set forth in Paragraph 5(e), no authorization, consent or approval
of, or registration or filing with, any governmental or public body or
regulatory authority is required on the part of the Company for the issuance of
the Securities pursuant to this Agreement prior to the issuance of Securities
hereunder, and such issuance will not result in any violation by the Company of
any of the terms or provisions of the certificate of incorporation or bylaws of
the Company.
(e) The execution, delivery and performance by the Company of this
Agreement and the issuance of Securities pursuant to this Agreement do not
result in any violation by the Company of any of the terms or provisions of any
indenture, mortgage or other agreement or instrument by which the Company or any
of its Subsidiaries is bound.
(f) The Company is not and, after giving effect to any proposed issuance of
Securities for which the Company has given written notice, will not be in
default with respect to any of the Securities or any other of the Company's
securities acquired from the Company by Masco or any of its Subsidiaries; and
there is no event which, with the giving of notice or passage of time, would
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constitute a default with respect to any of the Securities or any other of the
Company's securities acquired from the Company by Masco or any of its
Subsidiaries.
7. Opinions of Counsel. Concurrently with the execution
hereof,
(a) Masco is delivering to the Company an opinion of John R. Leekley,
counsel to Masco, dated the date hereof, to the effect specified in
Paragraphs 5(a) through 5(d).
(b) The Company is delivering to Masco an opinion of Dykema Gossett,
counsel to the Company, dated the date here of, to the effect specified in
Paragraphs 6(a)(i) and 6(b) through 6(d).
8. Miscellaneous. All notices, requests and other communications to either
party hereunder shall be in writing (including telex, telecopy or similar
writing) and shall be delivered by hand and receipted for by the party to whom
such communication shall have been directed or mailed by certified mail return
receipt requested to the following address (or to such other address as the
party receiving such communication has theretofore advised the other party in
the manner provided for herein):
(a) If to Masco, to:
21001 Van Born Road
Taylor, Michigan 48180
Telecopy: (313) 374-6430
Attention: President
with a copy to:
John R. Leekley
Vice President and
General Counsel
Masco Corporation
21001 Van Born Road
Taylor, Michigan 48180
Telecopy: (313) 374-6430
except in the case of notices required under Paragraph 2, in which
case each such notice shall be deemed delivered only upon actual
receipt, directed to:
Masco Corporation
21001 Van Born Road
Taylor, Michigan 48180
Telecopy: (313) 374-6135
Attention: Robert B. Rosowski
Vice President - Controller
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(b) If to the Company, to:
21001 Van Born Road
Taylor, Michigan 48180
Telecopy: (313) 374-6136
Attention: President
with a copy to:
Lloyd A. Semple
Dykema Gossett
400 Renaissance Center
Detroit, Michigan 48243
Telecopy: (313) 568-6915
9. Amendments; No Waivers. This Agreement may not be amended or terminated,
nor any condition or term hereof be waived orally, but only by an instrument in
writing duly executed by the parties hereto or, in the case of a waiver, by the
party otherwise entitled to performance. No failure or delay by either party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
10. Expenses. All costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such cost or expense.
11. Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that neither party may assign, delegate or
otherwise transfer any of its rights or obligations under this Agreement without
the consent of the other party hereto, except that Masco may transfer or assign,
in whole or from time to time in part, to one or more of its affiliates, its
obligation to purchase all or a portion of the Securities, but no such transfer
or assignment will relieve Masco of its obligations hereunder.
12. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Michigan.
13. Counterparts; Effectiveness. This Agreement may be signed in any number
of counterparts, each of which shall be deemed an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received a
counterpart hereof signed by the other party hereto.
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14. Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
IN WITNESS WHEREOF, the parties hereto here caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
MASCO CORPORATION
By /s/Richard G. Mosteller
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Its Senior Vice President-Finance
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MASCOTECH, INC.
By Timothy Wadhams
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Its Vice President - Controller
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Exhibit A
FORM OF SUBORDINATED NOTE
[insert appropriate legend]
No. [ ] $[Principal Amount]
MASCOTECH, INC.
__% Subordinated Note Due [5 years from original issue
date], Series ___
MascoTech, Inc., a Delaware corporation (together with its successors and
assigns the "Issuer"), for value received hereby promises to pay to
______________________ or registered assigns the principal sum of __________, on
the Stated Maturity Date (as hereinafter defined) or any earlier redemption
date, in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and
to pay interest, semiannually in arrears, on April 1 and October 1 (unless such
day is not a Business Day (as hereinafter defined), in which event on the next
succeeding Business Day) (each an "Interest Payment Date") of each year in which
this Note remains outstanding, commencing with___________________, 19__, on the
unpaid principal sum hereof outstanding in like coin or currency, at the rates
per annum set forth below, by check mailed to the address of the holder as such
address shall appear in the Register (as hereinafter defined), from the most
recent Interest Payment Date to which interest has been paid on this Note, or if
no interest has been paid on this Note, from ____________, 19__, until payment
in full of the principal sum hereof has been made.
The interest rate shall be a rate per annum that is specified on the face
hereof (the "Interest Rate"). Further, the Issuer shall pay interest on overdue
principal at a rate per annum 1% above the rate borne by this Note at the time
the same became overdue (the "Overdue Rate"), and interest on overdue
installments of interest, to the extent lawful, at the Overdue Rate. Interest
payments on this Note will include interest accrued to but excluding the
Interest Payment Dates or the Stated Maturity Date (or any earlier redemption or
repayment date), as the case may be. Interest on this Note will be calculated on
the basis of a 360 day year of twelve 30-day months.
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Notwithstanding anything herein to the contrary, the interest or any amount
deemed to be interest payable by the Issuer with respect to this Note shall not
exceed the maximum amount permitted by applicable law and, to the extent that
any payments in excess of such permitted amount are received by the holder, such
excess shall be considered payments in respect of the principal amount of this
Note. All sums paid or agreed to be paid to the holder for the use, forbearance
or retention of the indebtedness of the Issuer to the holder shall, to the
extent permitted by applicable law, be deemed to be amortized, prorated,
allocated and spread throughout the full term of such indebtedness until
payment in full of the principal so that the interest on account of such
indebtedness shall not exceed the maximum amount permitted by applicable law.
This Note is one of a duly authorized issue of subordinated notes
designated as the ___% Subordinated Notes Due _____, Series ____ of the Issuer,
limited in aggregate principal amount to $________ (hereinafter called the
"Notes").
This Note is transferable and assignable to one or more purchasers (in any
multiple of $10,000), subject to the restrictions on transfer, if any, referred
to on the face hereof. The Issuer agrees to issue from time to time replacement
Notes in the form hereof to facilitate such transfers and assignments. In
addition, after delivery of an indemnity in form and substance satisfactory to
the Issuer, the Issuer also agrees to issue replacement Notes for Notes which
have been lost, stolen, mutilated or destroyed.
The Issuer shall keep at its principal office a register (the "Register")
in which shall be entered the names and addresses of the registered holders of
the Notes and particulars of the respective Notes held by them and of all
transfers of such Notes. The ownership of the Notes shall be proven by the
Register. For the purpose of paying interest and principal on the Notes, the
Issuer shall be entitled to rely on the names and addresses in the Register and
notwithstanding anything to the contrary contained in this Note, no Event of
Default shall occur under Section 4.l(a) or (b) if payment of interest and
principal is made in accordance with the names and addresses and particulars
contained in the Register.
SECTION 1.1. Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Note shall have the respective meanings specified
below. All accounting terms used herein and not expressly defined shall have the
meanings given to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" shall mean
such accounting principles which are generally accepted as of the time of any
such determination. The terms defined in this Section 1.1 include the plural as
well as the singular.
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"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" when used with
respect to any Person means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in the City of New York are authorized by law to close.
"Event of Default" means any event or condition specified as such in
Section 4 which shall have continued for the period of time, if any, therein
designated.
"Person" means an individual, a corporation, a partnership, an association,
a trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Senior Indebtedness" means (a) all indebtedness of the Issuer for money
borrowed (including without limitation obligations of the Issuer in respect of
overdrafts, foreign exchange contracts, swaps, letters of credit, bankers'
acceptance, or any loan or advance from a bank whether or not evidenced by
promissory notes or other instruments) or incurred in connection with the
acquisition of property, whether outstanding on the date of execution of this
Note or thereafter created, assumed or incurred, including but not limited to,
the Issuer's 6% Convertible Subordinated Debentures due 2011, the Issuer's 10%
Senior Subordinated Notes due 1995 and the Issuer's 10-1/4% Senior Subordinated
Notes due 1997, except (i) other notes issued pursuant to the Amended and
Restated Securities Purchase Agreement between the Issuer and Masco
Corporation,a Delaware corporation ("Masco"), dated as of November 23, 1993, all
of which notes shall rank pari passu inter sese, (ii) such indebtedness of the
Issuer as is by its terms expressly stated to be not superior in right of
payment to the Notes or to rank pari passu with the Notes, and (iii)
indebtedness of the Issuer to an Affiliate of the Issuer provided that in no
event will Masco Corporation or any Affiliate of Masco Corporation (other than
the Issuer or Affiliates controlled by the Issuer) be deemed to be an affiliate
of the Issuer for purposes of this definition of Senior Indebtedness, (b) any
guaranty, endorsement or other contingent obligation of the Issuer in respect
of, or to purchase or otherwise acquire, any indebtedness of another for money
borrowed or incurred in connection with the acquisition of property, and (c) any
deferrals, renewals or extensions of any such Senior Indebtedness, or
debentures, notes or other evidences of indebtedness issued in exchange for such
Senior Indebtedness. The term "indebtedness of
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the Issuer for money borrowed" as used in the foregoing sentence shall mean any
obligation of the Issuer for borrowed money, whether or not evidenced by notes
or other written obligations, and any indebtedness of the Issuer evidenced by
bonds, notes or debentures or other similar instruments. The term "indebtedness
of the Issuer incurred in connection with the acquisition of property" as used
in the first sentence of this definition shall mean any purchase money
obligation (whether or not secured by any lien or other security interest)
created or assumed as all or part of the consideration for the acquisition of
property whether by purchase, merger, consolidation or otherwise (but not
including any account payable or any other obligation created or assumed by the
Issuer in the ordinary course of business in connection with the obtaining of
materials or services) and any indebtedness arising under a lease of property,
equipment or other assets which, pursuant to generally accepted accounting
principles then in effect, is classified as a liability on the Issuer's balance
sheet.
"Stated Maturity Date" means [the date that is five years from the date of
issuance]
"Subsidiary" means, with respect to any Person, any corporation or other
entity of which a majority of the capital stock or other ownership interests
having ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions are at the time directly or
indirectly owned by such Person.
SECTION 2.1. Payment of Principal and Interest. No provision of this Note
shall alter or impair the obligations of the Issuer, which are absolute and
unconditional, to pay the principal of and interest on this Note at the place,
times, and rate, and in the currency, herein prescribed.
SECTION 3. Covenants.
SECTION 3.1. Offices for Notices and Transfers, etc. So long as any of the
Notes remain outstanding, the Issuer will maintain an office or agency where the
Notes may be presented for registration of transfer and for exchange and an
office or agency where notices and demands to or upon the Issuer in respect of
the Notes may be served. The Issuer will give to the holders of the Notes
written notice of any change of location of any such office or agency thereof.
SECTION 3.2. Provision as to Paying Agent. The Issuer shall act as its own
paying agent and will, on or not more than seven days before each due date of
the principal of or interest on the Notes, set aside, segregate and hold in
trust for the benefit of the holders of the Notes of such series a sum
sufficient to pay such principal or interest so becoming due.
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SECTION 3.3 Subordination of Subsidiary Indebtedness. The Issuer shall
obtain an agreement from each of its Subsidiaries, comparable to the letter
agreement dated January 29, 1987 between the Issuer and its subsidiaries
executed in connection with the sale of convertible subordinated debentures and
senior subordinated notes, to the effect that, so long as any Notes are
outstanding, all indebtedness of the Issuer to such Subsidiary for money
borrowed or incurred in connection with the acquisition of property shall be
subordinated and junior in right of payment to the prior payment in full of all
such Notes in the same manner and to the same extent as such Notes are
subordinated and junior in right of payment to the prior payment in full of all
Senior Indebtedness (as defined herein).
SECTION 4. Events of Default and Remedies.
SECTION 4.1. Events of Default. "Event of Default", whenever used herein
with respect to any Note means any one of the following events:
(a) default in the payment of interest upon any Note when it becomes
due and payable and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of any
Note as and when the same shall become due and payable either at maturity,
upon redemption, by declaration or otherwise; or
(c) default in the performance, or breach, of any covenant of the
Issuer in any Note (other than a covenant, a default in whose performance
or whose breach is elsewhere in this Section or elsewhere in the
corresponding provision in any such other Note specifically dealt with),
and continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Issuer by the
holders of at least 25% in principal amount of the outstanding Notes, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" under the
Notes; or
(d) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer in an involuntary case under
any applicable bankruptcy, insolvency or other similar law or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or other similar official of the Issuer or for any substantial
part of its property, or ordering the winding-up or liquidation of its
affairs and such decree or order shall remain unstayed and in effect for a
period of 90 consecutive days; or
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(e) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
shall consent to the entry of an order for relief in an involuntary case
under any such law, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Issuer or of any substantial
part of its property, or shall make any general assignment for the benefit
of creditors, or shall fail generally to pay its debts as they become due.
If an Event of Default described in clause (a), (b) or (c) occurs and is
continuing, then, and in each and every such case, unless the principal of all
of the Notes shall have already become due and payable, the holders of not less
than 25% in aggregate principal amount of the Notes of this Series then out
standing, by notice in writing to the Issuer, may declare the entire principal
of all the Notes and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable. If an Event of Default described in clause (d) or (e) occurs, the
principal of and accrued interest on the Notes shall become and be immediately
due and payable without any declaration or other act on the part of any holder
of Notes.
The foregoing provisions, however, are subject to the condition that if, at
any time after the principal of the Notes shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Issuer shall
pay or shall deposit in trust for the benefit of the holders of the Notes a sum
sufficient to pay all matured installments of interest upon all of the Notes and
the principal of the Notes (with interest upon such principal and, to the extent
that payment of such interest is enforceable under applicable law, on overdue
installments of interest to the date of such payment or deposit) and if any and
all Events of Default under this Note other than the non-payment of the
principal shall have been cured, waived or otherwise remedied as provided
herein, then and in every such case the holders of a majority in aggregate
principal amount of the Notes then outstanding, by written notice to the Issuer,
may waive all defaults with respect to the Notes and rescind and annul such
declaration and its consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
SECTION 4.2. Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default. All powers and remedies given by this Section 4 to the holders of
Notes shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any thereof or of any other powers and remedies available to the
holders of the Notes, by judicial proceedings or otherwise, to
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enforce the performance or observance of the covenants and agreements contained
in this Note and no delay or omission of any holder of any of the Notes to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, every power and
remedy given by this Note or by law to the holders of Notes may be exercised
from time to time, and as often as shall be deemed expedient, by the holders of
Notes.
SECTION 4.3. Waiver of Past Defaults by Majority of Holders. Subject to
Section 4.1, the holders of a majority in aggregate principal amount of the
Notes at the time outstanding may on behalf of the holders of all of the Notes
waive such default or Event of Default and its consequences except a default in
the payment of principal of or interest on any of the Notes. Upon any such
waiver the Issuer and the holders of the Notes shall be restored to their former
positions and rights hereunder, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default shall have been waived as
permitted by this Section 4.3, said default or Event of Default shall for all
purposes of the Notes be deemed to have been cured and to be not continuing.
SECTION 5. Redemption.
SECTION 5.1. Optional Redemption. The Notes may be redeemed at the option
of the Issuer as a whole, or from time to time in part, at any time prior to
maturity, at a price equal to the principal amount of the Notes so redeemed,
together in each case with accrued interest to the date fixed for redemption,
upon mailing notice of such redemption not less than 30 nor more than 60 days
prior to the date fixed for redemption to the holders of Notes at their last
addresses as the same appear on the Register. Such mailing shall be by first
class mail. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notices to the holder of any Note designated for redemption shall
not affect the validity of the proceedings for the redemption of any other Note.
If less than all of the Notes are to be redeemed, the Issuer will select
(a) by lot or by such other manner as may be prescribed by resolution of the
Board of Directors of the Issuer and (b) to the extent Masco, or any Subsidiary
thereof, holds Notes, the Issuer shall allow Masco to select, in its sole
discretion, the specific Notes then owned by Masco or its Subsidiaries to be
redeemed (provided that Masco informs the Issuer no later than the day prior to
the date of such redemption of the specific Notes selected for redemption), the
Notes or portions thereof (in integral multiples of $1,000) to be redeemed in a
minimum amount of
16
$1,000,000 unless less than $1,000,000 of the Notes remain out standing in which
case all of the Notes must be redeemed.
Upon presentation of any Note redeemed in part only, the Issuer shall
execute and deliver to the holder thereof, at the expense of the Issuer, a new
Note or Notes of authorized denominations, in principal amount equal to the
unredeemed portion of the Note so presented.
SECTION 5.2. Change of Control Put. (a) The holder of this Note shall have
the right, at such holder's option, upon the giving of notice of the occurrence
of any event described in clause (b) below, and subject to the terms and
provisions hereof, to tender any Note, in whole or in part, without regard to
whether the Note is then otherwise redeemable, for cash in an amount equal to
the principal amount of such Note plus accrued interest to the date fixed for
redemption. Such redemption shall occur on the sixty-fifth day after the date of
the notice provided pursuant to clause (c) below (the "Mandatory Redemption
Date"). The holder's right to tender shall continue up to the sixtieth day after
the date of such notice and shall be exercised by any surrender of such Note to
the office or agency to be main tained by the Issuer pursuant to Section 3.1,
accompanied by written notice that the holder elects to tender such Note and (if
so required by the Issuer) by a written instrument or instruments of transfer in
form satisfactory to the Issuer duly executed by the holder or such holder's
duly authorized legal representative and transfer tax stamps or funds therefor,
if required. All Notes surrendered for redemption shall be cancelled by the
Issuer.
(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, of at least 50% of the voting power for
election of the Directors of the Issuer, unless approved in advance by a
majority of the Issuer's Continuing Directors has hereinafter defined), 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, unless approved in advance by a
majority of the Issuer's Continuing Directors.
A "Continuing Director" is a Director who is a member of the Board of
Directors of the Issuer elected by stockholders prior to the time the other
entity acquires in excess of 10% of the voting
17
power for the election of Directors of the Issuer or a person recommended to
succeed a Continuing Director by a majority of the Continuing Directors.
(c) The Issuer shall mail to each holder of Notes at such holder's last
address appearing on the Register, as promptly as possible but in any event not
more than ten days after learning of an occurrence specified in subclause (b)
(i) above or not more than ten days after an occurrence specified in subclause
(b) (ii) above, a notice stating that the event specified in the notice has
occurred and that each holder has the right to tender such holder's Notes for
cash pursuant to the terms hereof. Upon demand to the Issuer at any time by any
holder of Notes, such notice shall be mailed to each holder of Notes, unless the
Issuer can demonstrate to the holder's satisfaction that no event described in
clause (b) has occurred.
(d) On or before the sixty-second day after the date of the notice
provided pursuant to clause (c) above, the Issuer shall set aside, segregate and
hold in trust for the benefit of the holders of the Notes to be redeemed an
amount of money sufficient to pay the principal of, and accrued interest on, all
the Notes to be redeemed on the Mandatory Redemption Date.
(e) After giving the notice of redemption as provided above, the Notes to
be redeemed shall, on the Mandatory Redemption Date, become due and payable at a
price equal to the principal amount thereof plus accrued interest and from and
after such date (unless the Issuer shall default in the payment of principal and
accrued interest thereon) such Notes shall cease to bear interest. Upon
surrender of any such Note for redemption in accordance herewith, such Note
shall be paid on the Mandatory Redemption Date by the Issuer at a price equal to
the principal amount thereof, together with accrued interest to the Mandatory
Redemption Date.
If any Note to be redeemed shall not be so paid on the Mandatory Redemption
Date, the principal and accrued interest thereon shall, until paid, bear
interest from the Mandatory Redemption Date at the Overdue Rate.
(f) Notes may be redeemed in whole or in any integral multiple of $1,000.
Any Note which is to be redeemed only in part shall be surrendered at an office
or agency of the Issuer designated for that purpose (with, if the Issuer so
requires, due endorsement by, or a written instrument to transfer in form
satisfactory to the Issuer duly executed by, the holder thereof or such holder's
attorney duly authorized in writing), and the Issuer shall execute and deliver
to the holder of such Note without service charge, a new Note or Notes, of any
authorized denomination in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal amount.
18
SECTION 6. Subordination of Notes.
SECTION 6.1. Agreement to Subordinate. The Issuer covenants and agrees,
and each holder of Notes by such holder's acceptance thereof likewise covenants
and agrees, that all Notes shall be issued subject to the provisions of this
Section; and each Person holding any Note, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such
provisions. The provisions of this Section are made for the benefit of the
holders of Senior Indebtedness, and such holders shall, at any time, be entitled
to enforce such provisions against the Issuer or any holders of Notes.
All Notes shall, to the extent and in the manner hereinafter in this
Section set forth, be subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness.
SECTION 6.2. No Payment on Notes if Senior Indebtedness in Default. No
payment on account of principal or interest on the Notes shall be made unless
full payment of amounts then due for principal, premium, if any, sinking funds
and interest on all Senior Indebtedness has been made or duly provided for. No
payment on account of principal or interest on the Notes shall be made if, at
the time of such payment or immediately after giving effect thereto, (i) there
shall exist a default in the payment of principal, premium, if any, sinking
funds or interest with respect to any Senior Indebtedness, or (ii) there shall
have occurred an event of default (other than a default in the payment of
principal, premium, if any, sinking funds or interest) with respect to any
Senior Indebtedness, as defined therein or in the instrument under which the
same is outstanding, permitting the holders thereof to accelerate the maturity
thereof, and such event of default shall not have been cured or waived or shall
not have ceased to exist.
SECTION 6.3. Priority of Senior Indebtedness. In the event of any
insolvency or bankruptcy proceedings, and any receiver ship, liquidation,
reorganization under the Federal Bankruptcy Code or any other similar applicable
Federal or state law, or other similar proceedings in connection therewith,
relative to the Issuer or to its creditors, as such, or to its property, and in
the event of any proceedings for voluntary liquidation, dissolution or other
winding up of the Issuer or assignment for the benefit of creditors or any other
marshalling of assets of the Issuer, whether or not involving insolvency or
bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive
payment in full of all principal of and premium, if any, and interest on all
Senior Indebtedness including interest on such Senior Indebtedness after the
date of filing of a petition or other action commencing such proceeding before
the holders of the Notes are entitled to receive any payment on account of the
principal of or interest on the Notes and any payment or distribution of any
kind or character which may be payable or deliverable in any such proceedings
in respect of the
19
Notes, except securities which are subordinate and junior in right of payment to
the payment of all Senior Indebtedness then outstanding, shall be paid by the
person making such payment or distribution directly to the holders of Senior
Indebtedness to the extent necessary to make payment in full of all Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
the holders of Senior Indebtedness. In the event that any payment or
distribution of cash, property or securities shall be received by the holders of
the Notes in contravention of this Section before all Senior Indebtedness is
paid in full, or provision made for the payment thereof, such payment or
distribution shall be held in trust for the benefit of and shall be paid over to
the holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture under which
any instrument evidencing any of such Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay in full
all Senior Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness.
In the event that any Note is declared due and payable before its expressed
maturity because of the occurrence of an Event of Default (under circumstances
when the provisions of the first paragraph of this Section shall not be
applicable), the holders of the Senior Indebtedness outstanding at the time the
Notes so become due and payable because of such occurrence of such an Event of
Default shall be entitled to receive payment in full of all principal of and
premium, if any, and interest on all Senior Indebtedness before the holders of
the Notes are entitled to receive any payment on account of the principal of or
interest on the Notes.
SECTION 6.4. Subrogation of Notes. Subject to the payment in full of all
Senior Indebtedness, the holders of the Notes shall be subrogated to the rights
of the holders of Senior Indebtedness to receive payments or distributions of
assets of the Issuer made on the Senior Indebtedness until the principal of and
interest on the Notes shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of Senior Indebtedness
of any cash, property or securities to which the holders of the Notes would be
entitled except for the provisions of this Section, and no payment over pursuant
to the provisions of this Section to the holders of Senior Indebtedness by
holders of the Notes, shall, as between the Issuer, its creditors other than the
holders of Senior Indebtedness, and the holders of Notes, be deemed to be a
payment by the Issuer to or on account of Senior Indebtedness, and no payments
or distributions to the holders of the Notes of cash, property or securities
payable or distributable to the holders of the Senior Indebtedness to which the
holders of the Notes shall become entitled pursuant to the provisions of this
Section, shall, as between the Issuer, its creditors other than the holders of
Senior Indebtedness, and the holders of the Notes, be
20
deemed to be a payment by the Issuer to the holders of or on account of the
Notes.
SECTION 6.5. Issuer Obligation to Pay Unconditional. The provisions of this
Section are solely for the purpose of defining the relative rights of the
holders of Senior Indebtedness on the one hand, and the holders of the Notes on
the other hand, and nothing herein shall impair, as between the Issuer and the
holders of the Notes, the obligation of the Issuer, which is unconditional and
absolute, to pay to the holders thereof the principal thereof and interest
thereon in accordance with the terms of the Notes nor shall anything herein
prevent the holders of the Notes from exercising all remedies otherwise
permitted by applicable law or under the Notes upon default under the Notes,
subject to the rights of holders of Senior Indebtedness under the provisions of
this Section to receive cash, property or securities otherwise payable or
deliverable to the holders of the Notes.
SECTION 7. Miscellaneous.
SECTION 7.1. Modification of Notes. The Notes may be modified without prior
notice to any holder but with the written consent of the holders of a majority
in principal amount of the Notes. Subject to Section 4.1 and Section 4.3, the
holders of a majority in principal amount of the Notes may waive compliance by
the Issuer with any provision of the Notes without prior notice to any holder.
However, without the consent of each holder affected, an amendment, supplement
or waiver may not (1) reduce the amount of Notes whose holders must consent to
an amendment, supplement or waiver, (2) reduce the rate or extend the time for
payment for interest on any Notes, (3) reduce the principal amount of or extend
the fixed maturity of any Notes or alter the redemption provisions with respect
thereto or (4) make any Notes payable in money or property other than as stated
in the Notes.
The Issuer will use its best efforts to qualify an indenture with respect
to this Note at or prior to the time such qualification is required under the
Trust Indenture Act of 1939, as amended, or similar law then in effect.
SECTION 7.2. Miscellaneous. This Note shall be deemed to be a contract
under the laws of the State of Michigan and for all purposes shall be construed
in accordance with the laws of said State, except as may otherwise be required
by mandatory provisions of law. The parties hereto, including all guarantors or
endorsers, hereby waive presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance and
enforcement of this Note, except as specifically provided herein, and assent to
extensions of the time of payment, or forbearance or other indulgence without
notice. The holder of this Note by acceptance of this Note agrees to be bound by
the provisions (including the subordination provisions) of this Note
21
which are expressly binding on such holder. In determining whether the holders
of the requisite aggregate principal amount of Notes have concurred in any
direction, consent or waiver as provided under the Notes, Notes which are owned
by the Issuer or any Subsidiary of the Issuer shall be disregarded and deemed
not to be outstanding for the purpose of any such determination. The Section
headings herein are for convenience only and shall not affect the construction
hereof.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated:
[Seal] MASCOTECH, INC.
By:
Name:
Title:
22
AGREEMENT
This Agreement is dated as of November 23, 1993 between MascoTech, Inc., a
Delaware corporation (the "Company"), and Masco Corporation, a Delaware
corporation ("Masco").
WHEREAS, in addition to certain shares of Company common stock, par value
$1.00 per share (the "Common Stock"), and warrants to purchase Common Stock,
Masco holds (i) $130 million (the "Masco Debentures") of the Company's 6%
Convertible Subordinated Debentures Due 2011 (the "Debentures"), which are
redeemable at any time by the Company and convertible at any time into Common
Stock at $18 per share of Common Stock, and (ii) the one million outstanding
shares of the Company's 10% Exchangeable Preferred Stock (the "Preferred
Stock").
WHEREAS, the Company has been contemplating calling for redemption all of
the Debentures (including the Masco Debentures), and Masco is willing to refrain
from selling or otherwise disposing of Common Stock or other Company securities
for a period of time in order to facilitate the call for redemption of all of
the Debentures.
WHEREAS, it is in the interest of the Company to repurchase the Preferred
Stock for cash in order to reduce its financing costs and such repurchase is not
inconsistent with Masco's previously stated intention to reduce its investment
in the Company.
WHEREAS, the Company and Masco have entered into a Securities Purchase
Agreement dated as of March 31, 1993 (the "Securities Purchase Agreement")
pursuant to which Masco has agreed to purchase from the Company at its request
on or before March 31, 1995 additional preferred stock or subordinated debt
securities for an aggregate purchase price of up to $200 million, and the
parties desire to amend and restate the Securities Purchase Agreement in certain
respects.
WHEREAS, the Company and Masco have entered into a Stock Repurchase
Agreement dated as of May 1, 1984, as amended (the "Stock Repurchase
Agreement"), pursuant to which the Company has agreed to repurchase from
Masco,until May 1, 1994, such number of shares of Common Stock as may be
necessary to prevent Masco's Common Stock ownership interest in the Company from
exceeding 49%, and the parties are agreeable to extending the term thereof.
NOW, THEREFORE, the parties agree as follows:
1. Conversion of Debentures. Masco agrees that (a) on
23
or before December 31, 1993 it will surrender for conversion the Masco
Debentures, and (b)it will not sell or otherwise dispose of any Common Stock,
warrants to purchase Common Stock or Debentures (whether now held or acquired on
conversion) on or before December 31, 1993. If Masco surrenders the Masco
Debentures for conversion prior to December 15, 1993, the Company will pay Masco
an amount equal to the interest accrued on the Masco Debentures from the last
regular semi-annual interest payment date to the date of conversion.
2. Repurchase of Preferred Stock. The Company shall repurchase the
Preferred Stock for $100 per share, plus an amount equal to accrued and unpaid
dividends from October 1, 1993 to the date of repurchase, payable in cash on the
date of such repurchase. Such repurchase shall occur as soon as practicable
after the execution of this Agreement.
3. Amendment to Securities Purchase Agreement. Concurrently herewith the
parties are entering into an Amended and Restated Securities Purchase Agreement.
The parties hereby confirm that all securities issuable pursuant to the Amended
and Restated Securities Purchase Agreement will be "Registrable Securities"
under the Registration Agreement between them dated as of March 31, 1993.
4. Amendment to Stock Repurchase Agreement. The parties hereby amend
Paragraph 1 of the Stock Repurchase Agreement by deleting the date "May 1, 1994"
and substituting therefor the date "May 1, 2004". Except as otherwise
specifically set forth herein, the Stock Repurchase Agreement shall continue in
full force and effect.
5. Representations and Warranties. (a) Each party represents and warrants
to the other that the following statements are true and correct as of the date
hereof and will be true and correct at the time Masco surrenders the Masco
Debentures for conversion and at the time of the repurchase of the Preferred
Stock:
(i) It is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware and is authorized by its
certificate of incorporation to carry on its business as now conducted.
(ii) The execution, delivery and performance of this Agreement by
such party and the consummation by such party of the transactions contemplated
hereby are within the corporate powers of such party and have been duly
authorized by all necessary corporate action on its part. This Agreement
constitutes a valid and binding agreement of such party.
24
(iii) No authorization, consent or approval of, or registration or
filing with, any governmental or public body or regulatory authority is required
and which has not been obtained on the part of such party for the execution,
delivery and performance of this Agreement by such party.
(iv) The execution, delivery and performance of this Agreement by
such party do not result in any violation by it of any of the terms or
provisions of its certificate of incorporation or by-laws or of any indenture,
mortgage or other agreement or instrument by which it or any of its Subsidiaries
(as hereinafter defined) is bound.
(b) Masco represents and warrants to the Company that Masco has, and at
the time of the repurchase of the Preferred Stock will have, unencumbered title
to the Preferred Stock, free and clear of any Liens (as hereinafter defined),
and delivery by Masco of the Preferred Stock will pass unencumbered title to the
Company, free and clear of any Liens .
(c) The Company represents and warrants to Masco that the repurchase of
the Preferred Stock from Masco will be effected in compliance with the Delaware
General Corporation Law.
6. Legal Opinions. Concurrently with the execution hereof, Masco is
delivering to the Company an opinion of John R. Leekley, counsel to Masco, and
the Company is delivering to Masco an opinion of Dykema Gossett, counsel to the
Company, in each case dated the date hereof and to the effect of certain of the
matters specified in Paragraph 5 hereof.
7. Definitions. The following terms, as used herein, have the following
meanings:
(a) "Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset.
(b) "Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
(c) "Subsidiary" means, with respect to any Person, any corporation
or other entity of which a majority of the capital stock or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time directly
or indirectly owned by such Person.
25
8. Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
WHEREFORE, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
MASCO CORPORATION
By /s/Richard G. Mosteller
Its Senior Vice President -
Finance
MASCOTECH, INC.
By /s/Timothy Wadhams
Its Vice President -
Controller
26
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
27
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).
28
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.
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,
29
(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.
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