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EXHIBIT 10.f
AMENDMENT NO. 1 TO RECAPITALIZATION AGREEMENT
THIS AMENDMENT NO. 1 to the Recapitalization Agreement dated as
of August 1, 2000 (the "RECAPITALIZATION AGREEMENT") is made on October 23,
2000 by MascoTech, Inc., a Delaware corporation (the "COMPANY"), and
Riverside Company LLC, a Delaware limited liability company ("MERGER
SUBSIDIARY").
WHEREAS, the Company and the Merger Subsidiary entered into a
Recapitalization Agreement on August 1, 2000;
WHEREAS, the Company and the Merger Subsidiary desire to amend the
Recapitalization Agreement to reflect the changes set forth herein; and
WHEREAS, the parties to the Exchange and Voting Agreement dated as of
August 1, 2000 desire to amend the Exchange and Voting Agreement to reflect a
change in (i) the timing of the exchange of shares of common stock, par value
$1.00 per share, of the Company held by Masco Corporation, the Xxxxxxx and Xxxx
Xxxxxxxxx Foundation and Xxxxxxx X. Xxxxxxxxx into Class A Preferred Stock and
Class B Preferred Stock, as the case may be, and (ii) the terms of the
stockholders agreement attached to the Exchange and Voting Agreement as Exhibit
B (the "STOCKHOLDERS TERMS").
NOW THEREFORE, the parties hereto hereby amend the Recapitalization
Agreement as follows:
SECTION 1.01. Exchange and Voting Agreement. Upon execution of
Amendment No. 1 to the Exchange and Voting Agreement by each of the parties
thereto, the Exchange and Voting Agreement attached to the Recapitalization
Agreement as Exhibit A (including the form of Stockholders Terms attached
thereto as an exhibit) shall be amended in accordance with such Amendment No.
1 to the Exchange and Voting Agreement.
SECTION 1.02. Definitions. The definition of "ADJUSTMENT AMOUNT" in
Section 1.01 of the Recapitalization Agreement is amended and restated in its
entirety to read as follows:
"ADJUSTMENT AMOUNT" means an amount equal to the sum of:
(i) an amount equal to the portion of proceeds (as defined herein)
realized from all transfers, sales or dispositions (including as a result of any
merger, consolidation, liquidation or winding-up of Saturn) of all or any part
of
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the Saturn Equity Investment (the "SATURN SALES") that exceed $18 million and
are less than or equal to $40 million (the "INITIAL ADJUSTMENT AMOUNT");
(ii) an amount equal to the portion of the proceeds realized from
Saturn Sales in excess of $55.7 million and less than or equal to $56.7 million;
(iii) an amount equal to 60% of the portion of proceeds from Saturn
Sales that exceeds $56.7 million;
(iv) an amount equal to 60% of the portion of proceeds realized from
the sales of Equity Investments that exceeds $125 million; and
(v) an amount equal to 60% of any interest actually earned on proceeds
referred to in clauses (i), (ii), (iii) and (iv) of this definition prior to
payment of the Merger Consideration Adjustments and the Option Consideration
Adjustments (clauses (ii), (iii), (iv) and (v), the "SUBSEQUENT ADJUSTMENT
AMOUNT").
As used in this definition, proceeds means the cash proceeds after deducting all
applicable out-of-pocket costs and expenses (including, without limitation,
underwriting discounts, commissions and fees and financial advisory fees, but
excluding taxes) directly incurred by the Company or the Surviving Corporation
in connection with such transfers, sales or dispositions.
SECTION 2.03. Restricted Stock Awards and Options. (a) Section 2.06(a)
of the Recapitalization Agreement is amended by adding in the fourth line
thereof the phrase ", on January 3, 2001 (or as soon as practicable
thereafter)," prior to the phrase "holders of such options".
(b) Section 2.06(b) of the Recapitalization Agreement is amended by
replacing each reference to "anniversary date" with "vesting date".
(c) Section 2.06(b)(2) of the Recapitalization Agreement is further
amended by (i) deleting the words "on each anniversary of the Merger, commencing
on the first anniversary of the Merger through the third anniversary of the
Merger" and inserting in their place the words "on January 14, 2002, 2003 and
2004 (or if such date is not a Business Day, on the next succeeding Business
Day)", (ii) deleting the words "the first, second or third anniversary of the
Effective Time" and inserting in their place the words "January 14, 2002,
January 14, 2003 and January 14, 2004 (or if such date is not a Business Day, on
the next succeeding Business Day)" and (iii) deleting the words "the first,
second or third anniversary, as the case may be," and inserting in their place
the words "January 14, 2002, January 14, 2003 and January 14, 2004, as the case
may be (or if such date is not a Business Day, on the next succeeding Business
Day)".
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SECTION 3.04. Dividends. Section 4.10(b) of the Recapitalization
Agreement is amended by deleting the parenthetical "(other than quarterly cash
dividends on the Shares not in excess of $.08 per share per quarter and having
customary record and payment dates)" and inserting in its place the
parenthetical "(other than quarterly cash dividends on the Shares declared prior
to August 1, 2000 and not in excess of $.08 per share per quarter and having
customary record and payment dates)".
SECTION 3.05. Conditions to Obligations. Section 9.01(f)(i) is amended
by replacing (a) the number "$125.0 million" with the number "$123.8 million"
and (b) deleting the parenthetical clause "(or, no less than $116.0 million in
cash to the extent a right of first refusal process has not been completed prior
to the Effective Time with respect to certain Equity Investments (but not by
virtue of a refusal to consent to any such sale))".
SECTION 3.06. Effect of Amendment; Governing Law. Except as expressly
amended hereby, the Recapitalization Agreement shall remain unchanged. The
Recapitalization Agreement, as amended hereby shall remain in full force and
effect. The validity, construction and effect of this Amendment shall be
governed by and construed and enforced in accordance with the laws of the State
of Delaware, without giving effect to the principles of conflicts of law of such
state.
SECTION 3.07. Defined Terms. Capitalized terms used herein but not
defined herein shall have the terms ascribed to them in the Recapitalization
Agreement.
SECTION 3.08. Counterparts. This Amendment may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
MASCOTECH, INC.
By: /s/ Xxxxx X. Liner
--------------------------------
Name: Xxxxx X. Liner
Title: Vice President
RIVERSIDE COMPANY LLC
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
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AMENDMENT NO. 1 TO EXCHANGE AND VOTING AGREEMENT
THIS AMENDMENT NO. 1 to the Exchange and Voting Agreement dated as of
August 1, 2000 (the "AGREEMENT") is made on October 23, 2000 by Riverside
Company LLC, a Delaware limited liability company ("MERGER SUBSIDIARY"), Masco
Corporation, a Delaware corporation (the "COMPANY SHAREHOLDER"), Xxxxxxx and
Xxxx Xxxxxxxxx Foundation, a Michigan Non-Profit Corporation ("FS"), and Xxxxxxx
X. Xxxxxxxxx.
WHEREAS, the Merger Subsidiary, Company Shareholder, FS and Xx.
Xxxxxxxxx entered into the Exchange and Voting Agreement on August 1, 2000;
WHEREAS, the parties hereto desire to amend the Exchange and Voting
Agreement to reflect a change in (i) the timing of the exchange of shares of
common stock, par value $1.00 per share, of MascoTech, Inc. (the "COMPANY") held
by Company Shareholder, FS and Xx. Xxxxxxxxx into Class A Preferred Stock or
Class B Preferred Stock, as the case may be, and (ii) the terms of the
stockholders agreement attached to the Exchange and Voting Agreement as Exhibit
B (the "STOCKHOLDERS TERMS"); and
WHEREAS, the parties hereto desire to consent to the changes to the
Recapitalization Agreement between the Company and the Merger Subsidiary (the
"RECAPITALIZATION AGREEMENT") reflected in Amendment No. 1 to the
Recapitalization Agreement.
NOW THEREFORE, the parties hereto hereby amend the Agreement as
follows:
SECTION 1.01. Exchange of Certain Shares Prior to the Merger. Section
4.1 of the Agreement is amended by replacing the words "No later than 1 Business
Day prior to the scheduled Effective Time and otherwise at such time as the
Company, Merger Subsidiary and the Shareholders shall agree" with "Immediately
prior to the Effective Time".
SECTION 1.02. Stockholders Agreement. Section 5 of the Stockholders
Terms is amended by replacing it in its entirety with the following:
"The Board of the Surviving Corporation will be designated by the
Sponsor with the Company Shareholder having the right to
designate one director. The size of the Board will be within
Sponsor's sole discretion and the Sponsor will have the right to
elect or to designate for election a majority of the Board of
Directors of the Surviving Corporation. The Company
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Shareholder's right to appoint directors will cease upon it (together
with its Permitted Transferees) ceasing to own Shares (appropriately
adjusted for stock splits, combinations, subdivisions and similar
events ("Adjustments")) representing a majority of its initial position
which will be determined, based upon its anticipated ownership at the
time of Transactions without giving effect to any transfers of Company
Common Stock made prior to the Transactions; provided that Company
Shareholder will retain its rights for so long as the provisions of
(1)(i) or (ii) of paragraph 13 would be applicable, whether or not
prior to a public offering. The rights referred to in this paragraph
are not assignable."
SECTION 1.03. Consent to the Amendment of the Recapitalization
Agreement. Each of the Company Shareholder, FS and Xx. Xxxxxxxxx consents to
Amendment No. 1 to the Recapitalization Agreement.
SECTION 1.04. Effect of Amendment; Governing Law. Except as expressly
amended hereby, the Agreement shall remain unchanged. The Agreement, as amended
hereby shall remain in full force and effect. The validity, construction and
effect of this Amendment shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law of such state.
SECTION 1.05. Defined Terms. Capitalized terms used herein but not
defined herein shall have the terms ascribed to them in the Recapitalization
Agreement.
SECTION 1.06. Counterparts. This Amendment may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
RIVERSIDE COMPANY LLC
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: President
MASCO CORPORATION
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
XXXXXXX X. XXXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxxx
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XXXXXXX AND XXXX XXXXXXXXX
FOUNDATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
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