SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 12)*
MascoTech, Inc.
(Name of Issuer)
Common Stock, par value $1.00 per share
(Title of Class of Securities)
574670 10 5
(CUSIP Number)
Richard A. Manoogian, 21001 Van Born Road, Taylor, MI 48180
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
October 31, 1996
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13-d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following pages)
<PAGE>
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above
Persons
Richard A. Manoogian
###-##-####
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [ ]
3) SEC Use Only
4) Source of Funds (See Instructions)
5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
6) Citizenship or Place of Organization
United States of America
Number of Shares Beneficially Owned by Each Reporting Person With
7) Sole Voting Power - 2,911,576
8) Shared Voting Power - 202,560
9) Sole Dispositive Power - 2,839,736
10) Shared Dispositive Power - 202,560
11) Aggregate Amount Beneficially Owned by Each Reporting Person
4,501,142
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
13) Percent of Class Represented by Amount in Row (11)
11.7%
14) Type of Reporting Person (See Instructions)
IN
<PAGE>
The information contained in this Amendment No. 12 supplements and amends
the information contained in the following Items of the Schedule 13D filed by
Richard A. Manoogian relating to the Common Stock, par value $1.00 per share
(the "Common Stock"), of MascoTech, Inc., a Delaware corporation (the "Issuer"),
as heretofore amended.
Item 5. Interest in Securities of Issuer.
(a) On October 31, 1996, the reporting person sold 1,000,000 shares of
Common Stock to the Issuer for $13,625,000. After giving effect to this
transaction and other transactions since the date of the previous amendment to
this Schedule 13D, as of October 31, 1996, the reporting person beneficially
owned 4,501,142 shares of Common Stock, of which (i) 2,839,736 shares were owned
directly, (ii) 71,840 shares had been granted under the restricted stock
incentive plans of Masco Corporation and the Issuer and are still subject to
certain restrictions on disposition as provided in such plans, (iii) 1,000,000
shares could be acquired upon the exercise of an option granted under the
Issuer's stock option plan to the extent such option is exercisable on or before
December 31, 1996, (iv) 202,560 shares were owned by the Alex and Marie
Manoogian Foundation, a charitable foundation of which the reporting person is a
director, (v) 290,232 shares could be acquired by the Alex and Marie Manoogian
Foundation upon the conversion of convertible securities of the Issuer held by
such Foundation to the extent such securities are convertible on or before
December 31, 1996, and (vi) 96,774 shares could be acquired by the Richard and
Jane Manoogian Foundation, a charitable foundation of which the reporting person
is a director, upon conversion of convertible securities of the Issuer held by
such Foundation to the extent such securities are convertible on or before
December 31, 1996. To the best of his knowledge and based on the number of
shares of Common Stock believed to be outstanding, as of October 31, 1996 the
reporting person was deemed to be the beneficial owner of 11.7 percent of the
shares of Common Stock.
(b) The reporting person has (i) the sole power to vote all of the
shares described in clauses (i) and (ii) of Item 5(a) above, and (ii) the sole
power to dispose of the shares described in clause (i) of Item 5(a) above. The
reporting person shares with the other directors the power to vote or direct the
vote or to dispose or direct the disposition of the 202,560 shares owned by the
Foundation described in clause (iv) of Item 5(a) above. The reporting person,
Christine Simone, Louise M. Simone and Eugene A. Gargaro, Jr. are the directors
of the Alex and Marie Manoogian Foundation, and the reporting person, Eugene A.
Gargaro, Jr. and Jane Manoogian are the directors of the Richard and Jane
Manoogian Foundation, and all of the directors have a business address of 21001
Van Born Road, Taylor, Michigan 48180. To the knowledge of the undersigned,
none of the directors of the Foundations has been convicted in a criminal
proceeding nor have they been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction resulting in a judgment, decree or
final order enjoining future violations of, or mandating activities subject to,
Federal or State securities laws or finding any violation with respect to such
laws. They are all citizens of the United States of America.
<PAGE>
The reporting person disclaims any beneficial ownership or interest
whatsoever in the shares of the Common Stock or other securities of the Issuer
owned by the Foundations, and the filing of this Amendment No. 12 to Schedule
13D shall not be construed as an admission that he is the beneficial owner of
such shares or other securities.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
On October 31, 1996, the reporting person sold 1,000,000 shares of Common
Stock to the Issuer for $13,625,000, of which $6,000,000 was paid in cash and
the balance is due within one year. The reporting person currently holds
options to acquire 1,000,000 shares and 620,000 shares of Common Stock pursuant
to the Issuer's 1984 Stock Option Plan and 1991 Long Term Stock Incentive Plan,
respectively. The option price is equal to the fair market value of the shares
of Common Stock on the date of the grant and each option is exercisable
cumulatively in installments over a period of ten years and one day.
The reporting person holds awards of shares of Common Stock pursuant to
(i) Masco Corporation's 1984 Restricted Stock (Industries) Incentive Plan, (ii)
the Issuer's 1984 Restricted Stock Incentive Plan, and (iii) the Issuer's 1991
Long Term Stock Incentive Plan. Shares awarded pursuant to these Plans are
restricted and held by Masco Corporation or the Issuer, as the case may be.
Awards to the reporting person vest over a period of ten years contingent upon
continued employment and automatically vest upon death or permanent and total
disability or the occurrence of certain events constituting a change in control
of Masco Corporation or the Issuer. Until the shares vest, the reporting person
may not transfer ownership of such shares but has the right to vote them. As of
October 31, 1996, 71,840 shares of Common Stock awarded to the reporting person
under these Plans remained subject to the restrictions described herein.
Item 7. Material to be Filed as Exhibits.
Exhibit 99.a Option Award Letter dated November 11, 1996 from
MascoTech, Inc. to Richard A. Manoogian, granted
pursuant to the MascoTech, Inc. 1991 Long Term Stock
Incentive Plan
Exhibit 99.b Stock Award Letters to Richard A. Manoogian from
MascoTech, Inc. dated March 18, 1994, February 24, 1995
and November 11, 1996, granted pursuant to the
MascoTech, Inc. 1991 Long Term Stock Incentive Plan
Exhibit 99.c MascoTech, Inc. 1991 Long Term Stock Incentive Plan
(Restated as of December 6, 1995)
Exhibit 99.d Stock Purchase Agreement dated as of October 15, 1996
between Richard A. Manoogian and MascoTech, Inc.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
DATE: December 19, 1996
/s/ Richard A. Manoogian
Richard A. Manoogian
<PAGE>
EXHIBIT INDEX
Exhibit 99.a Option Award Letter dated November 11, 1996 from
MascoTech, Inc. to Richard A. Manoogian, granted
pursuant to the MascoTech, Inc. 1991 Long Term Stock
Incentive Plan
Exhibit 99.b Stock Award Letters to Richard A. Manoogian from
MascoTech, Inc. dated March 18, 1994, February 24, 1995
and November 11, 1996, granted pursuant to the
MascoTech, Inc. 1991 Long Term Stock Incentive Plan
Exhibit 99.c MascoTech, Inc. 1991 Long Term Stock Incentive Plan
(Restated as of December 6, 1995)
Exhibit 99.d Stock Purchase Agreement dated as of October 15, 1996
between Richard A. Manoogian and MascoTech, Inc.
November 11, 1996
Mr. Richard A. Manoogian
21001 Van Born Road
Taylor, MI 48180
Dear Mr. Manoogian:
On behalf of the Company, I am pleased to inform you that on September 11,
1996 the Compensation Committee of the Board of Directors granted you a non-
qualified stock option pursuant to the Company's 1991 Long Term Stock Incentive
Plan (the "Plan"), subject to the conditions set forth below. This letter
states the terms of the option and contains other provisions which on your
acceptance commit the Company and you, so I urge you to read it carefully. You
should also read the copies of the Plan and Prospectus which accompany this
Agreement.
This option, if accepted by you, grants you the right to purchase 140,000
shares of the Company's $1.00 par value Common Stock at a price of $14 1/2 per
share, which the committee has determined is the fair market value of a share of
the Company's common stock on the date of grant as reflected by trades reported
on the New York Stock Exchange.
When the Option is Exercisable and Termination
This option is exercisable cumulatively in installments in the following
manner:
20% of such shares 2 years after August 20, 1996
10% " " " 3 years after " " "
10% " " " 4 years after " " "
10% " " " 5 years after " " "
10% " " " 6 years after " " "
10% " " " 7 years after " " "
30% " " " 8 years after " " " but
no later than August 21, 2006
provided that on each date of exercise you qualify under the provisions of the
Plan, including Section 6(a), subparagraphs (ii) (D) and (F), to exercise such
option. All installments of the option as above described must be exercised no
later than August 21, 2006; all unexercised
<PAGE>
Page 2 November 11, 1996
installments shall lapse and the right to purchase shares pursuant to this
option shall be of no further effect after such date. If during the option
exercise periods your employment (or consulting relationship, if applicable)
with the Company (including its subsidiaries and affiliated companies) is
terminated for any reason, the option shall terminate in accordance with Section
6 of the Plan.
Enclosed please find (i) the Company's latest annual report and proxy
statement, (ii) Prospectus dated December 6, 1995 covering the shares which are
the subject of this option, and (iii) a copy of the Plan. We suggest that you
review the federal income tax attributes of non-qualified stock options which
are discussed in the Prospectus. This option does not qualify for the federal
tax benefits of an "incentive stock option" under the Internal Revenue Code, as
described in the Prospectus.
In consideration of this Award, you agree that, with respect to all other
Awards which you have previously been granted under the Plan and awards of
options and restricted stock under all other plans of the Company and affiliated
or formerly affiliated employers, the definition of "Change in Control" set
forth in Section 6(g)(vi)(C) of the Plan shall constitute the exclusive
definition of Change in Control for purposes of such Awards.
Acceptance and Arbitration
We agree that all of the terms and conditions of this option are reflected
in this Agreement and in the Plan, and that there are no other commitments or
understandings currently outstanding with respect to any other awards of stock
options or restricted stock except as may be evidenced by agreements duly
executed by you and the Company.
By accepting this option you acknowledge receipt of the documents referred
to above and represent that you have read the Plan, are familiar with its
provisions, and agree to its incorporation in this option agreement and all of
the other terms and conditions of this Agreement. Such acceptance, moreover,
evidences your agreement promptly to provide such information with respect to
shares acquired pursuant to this option as may be requested by the Company, one
of its subsidiaries or affiliated companies.
<PAGE>
Page 3 November 11, 1996
By accepting this option you: (a) agree to comply with the requirements
of applicable federal and other laws with respect to withholding or providing
for the payment of required taxes; (b) acknowledge that (1) all of your rights
to this option are embodied herein and in the Plan, (2) the grant and acceptance
of this option does not imply any commitment by the Company, a subsidiary or
affiliated company to your continued employment or consulting relationship and
(3) your status is that of an employee-at-will and in particular that the
Company, its subsidiary or affiliated company has a continuing right with or
without cause (unless otherwise specifically agreed to in writing) to terminate
your employment or other relationship at any time; and (c) agree that your
acceptance represents your agreement not to terminate voluntarily your current
employment (or consulting arrangement, if applicable) for at least one year from
the date of grant unless you have already agreed in writing to a longer period.
Section 3 of the Plan provides, in part, that the committee appointed by
the Company's Board of Directors to administer the Plan shall have the authority
to interpret the Plan and award agreements, and decide all questions and settle
all controversies and disputes relating thereto. It further provides that the
determinations, interpretations and decisions of the Committee are within its
sole discretion and are final, conclusive and binding on all persons. In
addition, it is agreed that if for any reason a claim is asserted against the
Company or any of its subsidiaries or affiliated companies or any officer,
employee or agent of the foregoing (other than a claim involving non-competition
restrictions or the Company's, a subsidiary's or an affiliated company's trade
secrets, confidential information or intellectual property rights) which (1)
arises out of or relates to your employment with or termination of employment
from the Company, or any of its subsidiaries or affiliated companies; (2) is
premised on claims of wrongful discharge, discrimination, breach of contract, or
other civil claims; (3) subverts the provisions of Section 3 of the Plan; or (4)
involves any of the provisions of this agreement or the Plan or the provisions
of any other option agreements relating to Company common stock or restricted
stock awards or the claims of yourself or any persons to the benefits thereof,
in order to provide a more speedy and economical resolution arbitration shall be
the exclusive remedy to resolve all disputes, claims or controversies which
could be the subject of litigation involving or arising out of the Plan, this or
such other agreements or your employment. The provisions of this paragraph shall
be binding upon our respective successors, heirs, personal representatives and
designated beneficiaries, and shall supersede the provisions of any prior
agreement between you and the Company or its subsidiaries or affiliated
companies with respect to any of the Company's option or restricted stock
incentive plans to the extent the provisions of such other agreement requires
arbitration between you and your employer. It is our mutual intention that the
arbitration award will be final and binding and that a judgment on the award may
be entered in any court of competent jurisdiction. The arbitrator shall be
chosen in accordance with the commercial arbitration rules of the American
Arbitration Association and the arbitration shall be conducted at
<PAGE>
Page 4 November 11, 1996
its principal office in the Metropolitan Detroit area. The arbitrator's sole
authority shall be to apply the clauses of this Agreement.
We agree that the provisions of the foregoing paragraph and the
decision of the arbitrator with respect to any dispute, with only the exception
provided in such paragraph, shall be the sole and exclusive remedy for any
alleged cause of action in any manner based upon or arising out of this
Agreement, the Plan or your employment or other relationship with the Company or
any of its subsidiaries or affiliated companies. Subject to the foregoing
exception, we acknowledge that since arbitration is the exclusive remedy,
neither of us nor any other party asserting a claim dealing with these matters
has the right to resort to any federal, state or local court or administrative
agency concerning any matters dealt with by this Agreement and that the decision
of the arbitrator shall be a complete defense to any action or proceeding
instituted in any tribunal or agency with respect to any dispute. The
arbitration provisions contained in this and the foregoing paragraph shall
survive the termination or expiration of this Agreement, and shall be binding on
our respective successors, personal representatives and any other party
asserting a claim based upon this Agreement. We further agree that any demand
for arbitration must be made within one year of the time any claim accrues which
you or any person claiming hereunder may have against the Company, or any of its
agents, employees, subsidiaries or affiliates; unless demand is made within such
period it is forever barred.
This option agreement shall be governed by and interpreted in
accordance with Michigan law.
<PAGE>
Page 5 November 11, 1996
Please complete your mailing address and Social Security number as
indicated below and sign, date and return two copies of this option agreement to
the undersigned as soon as possible in order that this option grant may become
effective.
Very truly yours,
MASCOTECH, INC.
/s/ Eugene A. Gargaro, Jr.
Eugene A. Gargaro, Jr.
Secretary
I accept and agree to all the foregoing terms and conditions.
/s/Richard A. Manoogian
(Signature of Recipient)
21001 Van Born Rd.
Taylor, MI 48180
(Mailing Address)
###-##-####
(Social Security Number)
Dated: Nov. 15, 1996
Restricted Stock Award Agreement
March 18, 1994
Mr. Richard A. Manoogian
21001 Van Born Road
Taylor, MI 48180
Dear Mr. Manoogian:
On behalf of the Company, I am pleased to inform you that on February 9,
1994 the Compensation Committee of the Board of Directors granted you an Award
of Restricted Stock, pursuant to the Company's 1991 Long Term Stock Incentive
Plan (the "Plan"), of shares of the Company's $1.00 par value Common Stock.
This letter states the terms of the Award and contains other provisions which on
your acceptance commit the Company and you, so I urge you to read it carefully.
You should also read the copies of the Plan and prospectus which accompany this
Agreement.
Terms of the award:
Shares of stock evidencing the Restricted Stock will be registered in your
name in book entry form promptly after your acceptance of this Award. You will
be entitled to vote and receive any cash dividends on the Restricted Stock, but
you will not be able to sell, encumber or otherwise transfer the shares except
in accordance with the Plan.
The number of shares of Restricted Stock you have been awarded is four
thousand eight hundred (4,800).
Provided since the date of the award you have been continuously employed
or retained as a consultant by the Company or one of its subsidiaries or
affiliated companies, the restrictions on 10% of the shares will automatically
lapse on January 14, 1995 and on the same date of each year thereafter until all
shares are free of restrictions, in each case based on the initial number of
shares. As restrictions lapse, if you are then employed or retained as a
consultant by the Company or one of its subsidiaries or affiliated companies, a
certificate for the number of shares of Restricted Stock as to which
restrictions have lapsed will be forwarded to you.
<PAGE>
Page 2 March 18, 1994
In accordance with Section 6(c) (iv) of the Plan, if your employment (or
consulting relationship, if applicable) should be terminated by reason of your
death or permanent and total disability or if unforfeited shares of Restricted
Stock remain unvested and you should die following retirement, the restrictions
on all Restricted Stock will lapse and your rights to the shares will become
vested on the date of such termination or death and a certificate for the shares
will be forwarded to you or to the person or persons entitled to the shares. If
you are then an employee and your employment should be terminated by reason of
retirement on or after normal retirement date (normally age 65 unless a
different date is provided at the time of your retirement under the retirement
plan of which you are a participant), such restrictions will continue to lapse
in the same manner as though your employment had not been terminated, unless
following retirement you engage in an activity which in the sole judgment of the
Committee is detrimental to the interests of the Company, a subsidiary or an
affiliated company, in which event all Restricted Stock for which restrictions
have not lapsed will be forfeited and transferred back to the Company.
If your employment or consulting relationship with the Company or one of
its subsidiaries or affiliated companies is terminated for any reason while
restrictions remain in effect, other than a reason referred to in the
immediately preceding paragraph, all Restricted Stock for which the restrictions
have not lapsed will be automatically forfeited and transferred back to the
Company.
Acceptance and arbitration:
By accepting this Award you: (a) represent that you are familiar with the
provisions of the Plan and agree to its incorporation in this Award Agreement;
(b) agree to provide promptly such information with respect to the Restricted
Stock as may be requested by the Company, one of its subsidiaries or affiliated
companies and to comply with the requirements of applicable federal and other
laws with respect to withholding or providing for the payment of required taxes;
(c) acknowledge that (1) all of your rights to this Award are embodied herein
and in the Plan, (2) the grant and acceptance of this Award does not imply any
commitment by the Company, a subsidiary or affiliated company to your continued
employment or consulting relationship and (3) your status is that of an
employee-at-will and in particular that the Company, its subsidiary or
affiliated company has a continuing right with or without cause (unless
otherwise specifically agreed to in writing) to terminate your employment or
other relationship at any time; and (d) agree that your acceptance represents
your agreement not to terminate voluntarily your current employment (or
consulting arrangement, if applicable) for at least one year from the award date
unless you have already agreed in writing to a longer period.
<PAGE>
Page 3 March 18, 1994
Section 3 of the Plan provides that the committee appointed by the
Company's Board of Directors to administer the Plan shall have the authority to
interpret the Plan and any award agreements, and decide all questions and settle
all controversies and disputes which may arise in connection therewith. It
further provides that the determinations, interpretations and decisions of the
Committee are within its sole discretion and are final, conclusive and binding
on all persons. In addition, it is agreed that if for any reason a claim is
asserted against the Company or a subsidiary or affiliated company or any
officer, employee or agent of the foregoing (other than a claim involving non-
competition restrictions or the Company's, a subsidiary's or an affiliated
company's trade secrets, confidential information or intellectual property
rights) which (1) arises out of or relates to your employment with or
termination of employment from the Company, or any of its subsidiaries or
affiliated companies; (2) is premised on claims of wrongful discharge,
discrimination, breach of contract, or other civil claims; (3) subverts the
provisions of Section 3 of the Plan; or (4) involves any of the provisions of
this agreement or the Plan or the provisions of any other agreements relating to
the Company's stock or claims of any persons to the benefits thereof, in order
to provide a more speedy and economical resolution arbitration shall be the
exclusive remedy to resolve all disputes, claims or controversies which could be
the subject of litigation involving or arising out of the Plan, this agreement
or your employment. The provisions of this paragraph shall supersede the
provisions of any prior agreement between you and the Company or its
subsidiaries or affiliated companies with respect to any of the Company's option
or restricted stock incentive plans to the extent the provisions of such other
agreement requires arbitration between you and your employer. It is our mutual
intention that the arbitration award will be final and binding and that a
judgment on the award may be entered in any court of competent jurisdiction.
The arbitrator shall be chosen in accordance with the commercial arbitration
rules of the American Arbitration Association and the arbitration shall be
conducted at its principal office in the Metropolitan Detroit area.
We agree that the provisions of the preceding paragraph and the decision
of the arbitrator with respect to any dispute, with only the exceptions provided
in such paragraph, shall be the sole and exclusive remedy for any alleged cause
of action in any manner based upon or arising out of this Agreement, the Plan or
your employment. Subject to such exceptions, we acknowledge that since
arbitration is the exclusive remedy, neither of us or any other party asserting
a claim dealing with those matters has the right to resort to any court or
administrative agency and that the decision of the arbitrator shall be a
complete defense to any action or proceeding instituted in any tribunal or
agency with respect to any dispute. The arbitration provisions shall survive
the termination or expiration of this Agreement, and shall be binding on our
respect successors, heirs, personal representatives, designated beneficiaries
and any other party asserting a claim relating to the matters dealt with in this
and the preceding paragraph.
<PAGE>
Page 4 March 18, 1994
We further agree that any demand for arbitration must be made within one
year of the time any claim accrues which you or any person claiming hereunder
may have against the Company, or any of its agents, employees, subsidiaries or
affiliates: unless demand is made within such period it is forever barred.
This agreement shall be governed by the laws of the State of Michigan.
Please complete your mailing address and social security number as
indicated below, sign, date and return two copies of this Award Agreement to
Gerald Bright, who administers the Plan, as soon as possible in order that this
Award may become effective. Since the Restricted Stock cannot be registered in
your name until we receive the signed copies of this agreement, and since
dividend, voting and other rights will only become effective at that time, your
prompt attention and acceptance will be greatly appreciated.
The documents above described should be returned directly to Mr. Bright.
Very truly yours,
MASCOTECH, INC.
/s/Eugene A. Gargaro, Jr.
Eugene A. Gargaro, Jr.
Secretary
I accept and agree to the foregoing.
/s/Richard A. Manoogian
(Signature of Recipient)
21001 Van Born Road
Taylor, Michigan 48180
(Mailing Address)
###-##-####
(Social Security Number)
Dated: March 28, 1994
<PAGE>
Restricted Stock Award Agreement
February 24, 1995
Mr. Richard A. Manoogian
21001 Van Born Road
Taylor, MI 48180
Dear Mr. Manoogian:
On behalf of the Company, I am pleased to inform you that on February 8,
1995 the Compensation Committee of the Board of Directors granted you an Award
of Restricted Stock, pursuant to the Company's 1991 Long Term Stock Incentive
Plan (the "Plan"), of shares of the Company's $1.00 par value Common Stock.
This letter states the terms of the Award and contains other provisions which on
your acceptance commit the Company and you, so I urge you to read it carefully.
You should also read the copies of the Plan and prospectus which accompany this
Agreement.
Terms of the Award:
Certificates for the shares of stock evidencing the Restricted Stock will
not be issued but the shares will be registered in your name in book entry form
promptly after your acceptance of this Award. You will be entitled to vote and
receive any cash dividends (net of required tax withholding) on the Restricted
Stock, but you will not be able to obtain a stock certificate or sell, encumber
or otherwise transfer the shares except in accordance with the Plan.
The number of shares of Restricted Stock you have been awarded is ten
thousand (10,000).
Provided since the date of the award you have been continuously employed
or retained as a consultant by the Company or one of its subsidiaries or
affiliated companies, the restrictions on 10% of the shares will automatically
lapse on January 14, 1996 and on the same date of each year thereafter until all
shares are free of restrictions, in each case based on the initial number of
shares. As restrictions lapse, if you are then employed or retained as a
consultant by the Company or one of its subsidiaries or affiliated companies, a
certificate for the number of shares of Restricted Stock as to which
restrictions have lapsed will be forwarded to you.
<PAGE>
Page 2 February 24, 1995
In accordance with Section 6(c)(iv) of the Plan, if your employment (or
consulting relationship, if applicable) should be terminated by reason of your
death or permanent and total disability or if unforfeited shares of Restricted
Stock remain unvested and you should die following retirement, the restrictions
on all Restricted Stock will lapse and your rights to the shares will become
vested on the date of such termination or death and a certificate for the shares
will be forwarded to you or to the person or persons entitled to the shares. If
you are then an employee and your employment should be terminated by reason of
retirement on or after normal retirement date (normally age 65 unless a
different date is provided at the time of your retirement under the retirement
plan of which you are a participant), such restrictions will continue to lapse
in the same manner as though your employment had not been terminated, unless
following retirement you engage in an activity which in the sole judgment of the
Committee is detrimental to the interests of the Company, a subsidiary or an
affiliated company, in which event all Restricted Stock for which restrictions
have not lapsed will be forfeited and transferred back to the Company.
If your employment or consulting relationship with the Company or one of
its subsidiaries or affiliated companies is terminated for any reason while
restrictions remain in effect, other than a reason referred to in the
immediately preceding paragraph, all Restricted Stock for which the restrictions
have not lapsed will be automatically forfeited and transferred back to the
Company.
Acceptance and arbitration:
By accepting this Award you: (a) represent that you are familiar with the
provisions of the Plan and agree to its incorporation in this Award Agreement;
(b) agree to provide promptly such information with respect to the Restricted
Stock as may be requested by the Company, one of its subsidiaries or affiliated
companies and to comply with the requirements of applicable federal and other
laws with respect to withholding or providing for the payment of required taxes;
(c) acknowledge that (1) all of your rights to this Award are embodied herein
and in the Plan, (2) the grant and acceptance of this Award does not imply any
commitment by the Company, a subsidiary or affiliated company to your continued
employment or consulting relationship and (3) your status, if you are an
employee, is that of an employee-at-will and in particular that the Company, its
subsidiary or affiliated company has a continuing right with or without cause
(unless otherwise specifically agreed to in writing) to terminate your
employment or consulting or other relationship at any time; and (d) agree that
your acceptance represents your agreement not to terminate voluntarily your
current employment (or consulting arrangement, if applicable) for at least one
year from the award date unless you have already agreed in writing to a longer
period.
<PAGE>
Page 3 February 24, 1995
Section 3 of the Plan provides that the committee appointed by the
Company's Board of Directors to administer the Plan shall have the authority to
interpret the Plan and any award agreements, and decide all questions and settle
all controversies and disputes which may arise in connection therewith. It
further provides that the determinations, interpretations and decisions of the
Committee are within its sole discretion and are final, conclusive and binding
on all persons. In addition, it is agreed that if for any reason a claim is
asserted against the Company or a subsidiary or affiliated company or any
officer, employee or agent of the foregoing (other than a claim involving non-
competition restrictions or the Company's, a subsidiary's or an affiliated
company's trade secrets, confidential information or intellectual property
rights) which (1) arises out of or relates to your employment or consulting or
other relationship with or termination of employment or consulting or other
relationship with the Company, or any of its subsidiaries or affiliated
companies; (2) is premised on claims of wrongful discharge, discrimination,
breach of contract, or other civil claims; (3) subverts the provisions of
Section 3 of the Plan; or (4) involves any of the provisions of this agreement
or the Plan or the provisions of any other agreements relating to the Company's
stock or claims of any persons to the benefits thereof, in order to provide a
more speedy and economical resolution arbitration shall be the exclusive remedy
to resolve all disputes, claims or controversies which could be the subject of
litigation involving or arising out of the Plan, this agreement or your
employment. The provisions of this paragraph shall supersede the provisions of
any prior agreement between you and the Company or its subsidiaries or
affiliated companies with respect to any of the Company's option or restricted
stock incentive plans to the extent the provisions of such other agreement
requires arbitration between you and your employer. It is our mutual intention
that the arbitration award will be final and binding and that a judgment on the
award may be entered in any court of competent jurisdiction. The arbitrator
shall be chosen in accordance with the commercial arbitration rules of the
American Arbitration Association and the arbitration shall be conducted at its
principal office in the Metropolitan Detroit area.
We agree that the provisions of the preceding paragraph and the
decision of the arbitrator with respect to any dispute, with only the exceptions
provided in such paragraph, shall be the sole and exclusive remedy for any
alleged cause of action in any manner based upon or arising out of this
Agreement, the Plan or your employment or consulting relationship with the
Company or any of its subsidiaries or affiliated companies. Subject to such
exceptions, we acknowledge that since arbitration is the exclusive remedy,
neither of us nor any other party asserting a claim dealing with those matters
has the right to resort to any court or administrative agency and that the
decision of the arbitrator shall be a complete defense to any action or
proceeding instituted in any tribunal or agency with respect to any dispute.
The arbitration provisions shall survive the termination or expiration of this
Agreement, and shall be binding on our respective successors, heirs, personal
representatives, designated beneficiaries and any other party asserting a claim
relating to the matters dealt with in this and the preceding paragraph.
<PAGE>
Page 4 February 24, 1995
We further agree that any demand for arbitration must be made within
one year of the time any claim accrues which you or any person claiming
hereunder may have against the Company, or any of its agents, employees,
subsidiaries or affiliates: unless demand is made within such period it is
forever barred.
This Agreement shall be governed by the laws of the State of
Michigan.
Please complete your mailing address and social security number as
indicated below, sign, date and return two copies of this Award Agreement to
Gerald Bright, who administers the Plan, as soon as possible in order that this
Award may become effective. Since the Restricted Stock cannot be registered in
your name until we receive the signed copies of this agreement, and since
dividend, voting and other rights will only become effective at that time, your
prompt attention and acceptance will be greatly appreciated.
The documents above described should be returned directly to Mr.
Bright.
Very truly yours,
MASCOTECH, INC.
/s/Eugene A. Gargaro, Jr.
Eugene A. Gargaro, Jr.
Secretary
I accept and agree to the foregoing.
/s/Richard A. Manoogian
(Signature of Recipient)
21001 Van Born Rd.
Taylor, MI 48180
(Mailing Address)
###-##-####
(Social Security Number)
Dated: March 9, 1995
<PAGE>
Restricted Stock Award Agreement
November 11, 1996
Mr. Richard A. Manoogian
21001 Van Born Road
Taylor, MI 48180
Dear Mr. Manoogian:
On behalf of the Company, I am pleased to inform you that on August
20, 1996 the Compensation Committee of the Board of Directors granted you an
Award of Restricted Stock, pursuant to the Company's 1991 Long Term Stock
Incentive Plan (the "Plan"), of shares of the Company's $1.00 par value Common
Stock. This letter states the terms of the Award and contains other provisions
which on your acceptance commit the Company and you, so I urge you to read it
carefully. You should also read the copies of the Plan and Prospectus which
accompany this Agreement. For purposes of this Agreement, use of the words
"employment" or "employed" shall be deemed to refer to employment by the Company
and its subsidiaries and affiliated companies.
Terms of the Award:
Certificates for the shares of stock evidencing the Restricted Stock
will not be issued but the shares will be registered in your name in book entry
form promptly after your acceptance of this Award. You will be entitled to vote
and receive any cash dividends (net of required tax withholding) on the
Restricted Stock, but you will not be able to obtain a stock certificate or
sell, encumber or otherwise transfer the shares except in accordance with the
Plan.
The number of shares of Restricted Stock you have been awarded is
forty five thousand (45,000).
Provided since the date of the Award you have been continuously
employed or retained as a consultant by the Company or one of its subsidiaries
or affiliated companies, the restrictions on 10% of the shares will
automatically lapse on July 1, 1997 and on the same date of each year thereafter
until all shares are free of restrictions, in each case based on the initial
number of shares.
<PAGE>
Page 2 November 11, 1996
In accordance with Section 6(c)(iv) of the Plan, if your employment
(or consulting relationship, if applicable) should be terminated by reason of
your death or permanent and total disability or if unforfeited shares of
Restricted Stock remain unvested and you should die following retirement, the
restrictions on all Restricted Stock will lapse and your rights to the shares
will become vested on the date of such termination or death. If you are then an
employee and your employment should be terminated by reason of retirement on or
after your attaining age 65, such restrictions will continue to lapse in the
same manner as though your employment had not been terminated.
As restrictions lapse, a certificate for the number of shares of
Restricted Stock as to which restrictions have lapsed will be forwarded to you
or the person or persons entitled to the shares.
If your employment or consulting relationship with the Company or
one of its subsidiaries or affiliated companies is terminated for any reason
while restrictions remain in effect, other than a reason referred to in the
second preceding paragraph above, all Restricted Stock for which the
restrictions have not lapsed will be automatically forfeited to the Company.
Notwithstanding the foregoing, if you at any time engage in an
activity following your termination of employment which in the sole judgment of
the Committee is detrimental to the interests of the Company, a subsidiary or
affiliated company, all Restricted Stock for which restrictions have not lapsed
will be forfeited to the Company.
Other Terms, and Acceptance and Arbitration:
We agree that all of the terms and conditions of the Award are
reflected in this Agreement and in the Plan, and that there are no other
commitments or understandings currently outstanding with respect to any other
awards of restricted stock or stock options except as may be evidenced by
agreements duly executed by you and the Company.
Further, in consideration of this Award and by the acceptance
thereof, you agree that, with respect to all other Awards which you have
previously been granted under the Plan and awards of options and restricted
stock under other plans of the Company and affiliated or formerly affiliated
employers, the definition of "Change in Control" set forth in Section
6(g)(vi)(C) of the Plan shall constitute the exclusive definition of Change in
Control for purposes of such Awards.
<PAGE>
Page 3 November 11, 1996
By accepting this Award you: (a) represent that you are familiar
with the provisions of the Plan and agree to its incorporation in this Award
Agreement; (b) agree to provide promptly such information with respect to the
Restricted Stock as may be requested by the Company and to comply with the
requirements of applicable federal and other laws with respect to withholding or
providing for the payment of required taxes; (c) acknowledge that (1) all of
your rights to this Award are embodied herein and in the Plan, (2) the grant and
acceptance of this Award does not imply any commitment by the Company to your
continued employment and (3) your status is that of an employee-at-will and in
particular that the Company or its subsidiary or affiliated company has a
continuing right with or without cause (unless otherwise specifically agreed to
in writing) to terminate your employment or other relationship at any time; and
(d) agree that your acceptance represents your agreement not to terminate
voluntarily your current employment for at least one year from the award date
unless you have already agreed in writing to a longer period.
Section 3 of the Plan provides in part, that the committee appointed
by the Company's Board of Directors to administer the Plan shall have the
authority to interpret the Plan and any award agreements, and decide all
questions and settle all controversies and disputes relating thereto. It
further provides that the determinations, interpretations and decisions of the
Committee are within its sole discretion and are final, conclusive and binding
on all persons. In addition, it is agreed that if for any reason a claim is
asserted against the Company or any of its subsidiaries or affiliated companies
or any officer, employee or agent of the foregoing (other than a claim involving
non-competition restrictions or the Company's, a subsidiary's or an affiliated
company's trade secrets, confidential information or intellectual property
rights) which (1) arises out of or relates to your employment with or
termination of employment from the Company; (2) is premised on claims of
wrongful discharge, discrimination, breach of contract, or other civil claims;
(3) subverts the provisions of Section 3 of the Plan; or (4) involves any of the
provisions of this agreement or the Plan or the provisions of any other
agreements relating to the Company's stock or claims of yourself or any persons
to the benefits thereof, in order to provide a more speedy and economical
resolution arbitration shall be the exclusive remedy to resolve all disputes,
claims or controversies which could be the subject of litigation involving or
arising out of the Plan, this or such other agreements or your employment. The
provisions of this
<PAGE>
Page 4 November 11, 1996
paragraph shall be binding upon our respective successors, heirs, personal
representatives and designated beneficiaries, and shall supersede the provisions
of any prior agreement between you and the Company or its subsidiaries or
affiliated companies with respect to any of the Company's option or restricted
stock incentive plans to the extent the provisions of such other agreement
requires arbitration between you and your employer. It is our mutual intention
that the arbitration award will be final and binding and that a judgment on the
award may be entered in any court of competent jurisdiction. The arbitrator
shall be chosen in accordance with the commercial arbitration rules of the
American Arbitration Association and the arbitration shall be conducted at its
principal office in the Metropolitan Detroit area. The arbitrator's sole
authority shall be to apply the clauses of this Agreement.
We agree that the provisions of the preceding paragraph and the
decision of the arbitrator with respect to any dispute, with only the exceptions
provided in such paragraph, shall be the sole and exclusive remedy for any
alleged cause of action in any manner based upon or arising out of this
Agreement, the Plan or your employment or consulting relationship with the
Company or any of its subsidiaries or affiliated companies. Subject to the
foregoing exception, we acknowledge that since arbitration is the exclusive
remedy, neither of us nor any other party asserting a claim dealing with those
matters has the right to resort to any court or administrative agency concerning
matters dealt with by this Agreement and that the decision of the arbitrator
shall be a complete defense to any action or proceeding instituted in any
tribunal or agency with respect to any dispute. The arbitration provisions
contained in this and the foregoing and following paragraph shall survive the
termination or expiration of this Agreement, and shall be binding on our
respective successors, personal representatives, and any other party asserting a
claim based upon this Agreement.
We further agree that any demand for arbitration must be made within
one year of the time any claim accrues which you or any person claiming
hereunder may have against the Company, or any of its agents, employees,
subsidiaries or affiliates: unless demand is made within such period it is
forever barred.
This Agreement shall be governed by and interpreted in accordance
with Michigan law.
<PAGE>
Page 5 November 11, 1996
Please complete your mailing address and social security number as
indicated below, sign, date and return two copies of this Award Agreement to the
undersigned as soon as possible in order that this Award may become effective.
Since the Restricted Stock cannot be registered in your name until we receive
the signed copies of this Agreement, and since dividend, voting and other rights
will only become effective at that time, your prompt attention and acceptance
will be greatly appreciated.
Very truly yours,
MASCOTECH, INC.
/s/Eugene A. Gargaro, Jr.
Eugene A. Gargaro, Jr.
Secretary
I accept and agree to the foregoing.
/s/Richard A. Manoogian
(Signature of Recipient)
21001 Van Born Rd.
Taylor, MI 48180
(Mailing Address)
###-##-####
(Social Security Number)
Dated: Nov. 15, 1996
MASCOTECH, INC.
1991 LONG TERM STOCK INCENTIVE PLAN
(Restated December 6, 1995)
Section 1. Purposes
The purposes of the 1991 Long Term Stock Incentive Plan (the "Plan") are
to encourage selected employees of and consultants to MascoTech, Inc. (the
"Company") and its Affiliates to acquire a proprietary interest in the Company
in order to create an increased incentive to contribute to the Company's future
success and prosperity, and enhance the ability of the Company and its
Affiliates to attract and retain exceptionally qualified individuals upon whom
the sustained progress, growth and profitability of the Company depend, thus
enhancing the value of the Company for the benefit of its stockholders.
Section 2. Definitions
As used in the Plan, the following terms shall have the meanings set forth
below:
(a) "Affiliate" shall mean any entity in which the Company's direct or
indirect equity interest is at least twenty percent, and any other entity in
which the Company has a significant direct or indirect equity interest, whether
more or less than twenty percent, as determined by the Committee.
(b) "Award" shall mean any Option, Stock Appreciation Right, Restricted
Stock, Restricted Stock Unit, Performance Award, Dividend Equivalent or Other
Stock-Based Award granted under the Plan.
(c) "Award Agreement" shall mean any written agreement, contract or other
instrument or document evidencing any Award granted under the Plan.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
(e) "Committee" shall mean a committee of the Company's directors
designated by the Board of Directors to administer the Plan and composed of not
less than two directors, each of whom is a "disinterested person" within the
meaning of Rule 16b-3.
(f) "Dividend Equivalent" shall mean any right granted under Section 6(e)
of the Plan.
<PAGE>
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(h) "Incentive Stock Option" shall mean an Option granted under Section
6(a) of the Plan that is intended to meet the requirements of Section 422 of the
Code, or any successor provision thereto.
(i) "Non-Qualified Stock Option" shall mean an Option granted under
Section 6(a) of the Plan that is not intended to be an Incentive Stock Option.
(j) "Option" shall mean an Incentive Stock Option or a Non-Qualified Stock
Option.
(k) "Other Stock-Based Award" shall mean any right granted under Section
6(f) of the Plan.
(l) "Participant" shall mean an employee of or consultant to the Company
or any Affiliate designated to be granted an Award under the Plan.
(m) "Performance Award" shall mean any right granted under Section 6(d) of
the Plan.
(n) "Restricted Period" shall mean the period of time during which Awards
of Restricted Stock or Restricted Stock Units are subject to restrictions.
(o) "Restricted Stock" shall mean any Share granted under Section 6(c) of
the Plan.
(p) "Restricted Stock Unit" shall mean any right granted under Section
6(c) of the Plan that is denominated in Shares.
(q) "Rule 16b-3" shall mean Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Exchange Act, or any successor rule or regulation.
(r) "Section 16" shall mean Section 16 of the Exchange Act, the rules and
regulations promulgated by the Securities and Exchange Commission thereunder, or
any successor provision, rule or regulation.
(s) "Shares" shall mean the Company's common stock, par value $1.00 per
share, and such other securities or property as may become the subject of
Awards, or become subject to Awards, pursuant to an adjustment made under
Section 4(b) of the Plan.
(t) "Stock Appreciation Right" shall mean any right granted under Section
6(b) of the Plan.
- 2 -
<PAGE>
Section 3. Administration
The Committee shall administer the Plan, and subject to the terms of the
Plan and applicable law, the Committee's authority shall include without limita-
tion the power to:
(i) designate Participants;
(ii) determine the types of Awards to be granted;
(iii) determine the number of Shares to be covered by Awards and any
payments, rights or other matters to be calculated in connection
therewith;
(iv) determine the terms and conditions of Awards and amend the
terms and conditions of outstanding Awards;
(v) determine how, whether, to what extent, and under what
circumstances Awards may be settled or exercised in cash, Shares, other
securities, other Awards or other property, or canceled, forfeited or
suspended;
(vi) determine how, whether, to what extent, and under what
circumstances cash, Shares, other securities, other Awards, other property
and other amounts payable with respect to an Award shall be deferred
either automatically or at the election of the holder thereof or of the
Committee;
(vii) determine the methods or procedures for establishing the fair
market value of any property (including, without limitation, any Shares or
other securities) transferred, exchanged, given or received with respect
to the Plan or any Award;
(viii) prescribe and amend the forms of Award Agreements and other
instruments required under or advisable with respect to the Plan;
(ix) designate Options granted to key employees of the Company or
its subsidiaries as Incentive Stock Options;
(x) interpret and administer the Plan, Award Agreements, Awards and
any contract, document, instrument or agreement relating thereto;
(xi) establish, amend, suspend or waive such rules and regulations
and appoint such agents as it shall deem appropriate for the
administration of the Plan;
(xii) decide all questions and settle all controversies and disputes
which may arise in connection with the Plan, Award Agreements and Awards;
- 3 -
<PAGE>
(xiii) delegate to directors of the Company who need not be "disinterested
persons" within the meaning of Rule 16b-3 the authority to designate
Participants and grant Awards, and to amend Awards granted to Participants,
provided such Participants are not directors or officers of the Company for
purposes of Section 16;
(xiv) make any other determination and take any other action that
the Committee deems necessary or desirable for the interpretation,
application and administration of the Plan, Award Agreements and Awards.
All designations, determinations, interpretations and other decisions
under or with respect to the Plan, Award Agreements or any Award shall be within
the sole discretion of the Committee, may be made at any time and shall be
final, conclusive and binding upon all persons, including the Company,
Affiliates, Participants, beneficiaries of Awards and stockholders of the
Company.
Section 4. Shares Available for Awards
(a) Shares Available. Subject to adjustment as provided in Section 4(b):
(i) Initial Authorization. There shall be 6,000,000 Shares
initially available for issuance under the Plan.
(ii) Acquired Shares. In addition to the amount set forth above,
up to 6,000,000 Shares acquired by the Company subsequent to the
effectiveness of the Plan as full or partial payment for the exercise
price for an Option or any other stock option granted by the Company, or
acquired by the Company, in open market transactions or otherwise, in
connection with the Plan or any Award hereunder or any other employee
stock option or restricted stock issued by the Company may thereafter be
included in the Shares available for Awards. If any Shares covered by an
Award or to which an Award relates are forfeited, or if an Award expires,
terminates or is cancelled, then the Shares covered by such Award, or to
which such Award relates, or the number of Shares otherwise counted
against the aggregate number of Shares available under the Plan by reason
of such Award, to the extent of any such forfeiture, expiration,
termination or cancellation, may thereafter be available for further
granting of Awards and included as acquired Shares for purposes of the
preceding sentence.
(iii) Additional Shares. Shares acquired by the Company in the
circumstances set forth in (ii) above in excess of the amount set forth
therein may thereafter be included in the Shares available for Awards to
the extent permissible for
- 4 -
<PAGE>
purposes of allowing the Plan to continue to satisfy the conditions of
Rule 16b-3.
(iv) Shares Under Prior Plans. In addition to the amount set forth
above, shares remaining available for issuance upon any termination of
authority to make further awards under both the Company's 1984 Restricted
Stock Incentive Plan and its 1984 Stock Option Plan shall thereafter be
available for issuance hereunder.
(v) Accounting for Awards. For purposes of this Section 4,
(A) if an Award (other than a Dividend Equivalent) is
denominated in Shares, the number of Shares covered by such Award,
or to which such Award relates, shall be counted on the date of
grant of such Award against the aggregate number of Shares available
for granting Awards under the Plan to the extent determinable on
such date and insofar as the number of Shares is not then
determinable under procedures adopted by the Committee consistent
with the purposes of the Plan; and
(B) Dividend Equivalents and Awards not denominated in Shares
shall be counted against the aggregate number of Shares available
for granting Awards under the Plan in such amount and at such time
as the Committee shall determine under procedures adopted by the
Committee consistent with the purposes of the Plan;
provided, however, that Awards that operate in tandem with (whether
granted simultaneously with or at a different time from), or that are
substituted for, other Awards or restricted stock awards or stock options
granted under any other plan of the Company may be counted or not counted
under procedures adopted by the Committee in order to avoid double
counting. Any Shares that are delivered by the Company or its Affiliates,
and any Awards that are granted by, or become obligations of, the Company,
through the assumption by the Company of, or in substitution for,
outstanding restricted stock awards or stock options previously granted by
an acquired company shall not, except in the case of Awards granted to
Participants who are directors or officers of the Company for purposes of
Section 16, be counted against the Shares available for granting Awards
under the Plan.
(vi) Sources of Shares Deliverable Under Awards. Any Shares
delivered pursuant to an Award may consist, in whole or in part, of
authorized but unissued Shares or of Shares reacquired by the Company,
including but not limited to Shares purchased on the open market.
- 5 -
<PAGE>
(b) Adjustments. Upon the occurrence of any dividend or other
distribution (whether in the form of cash, Shares, other securities or other
property), change in the capital or shares of capital stock, recapitalization,
stock split, reverse stock split, reorganization, merger, consolidation, split-
up, spin-off, combination, repurchase, or exchange of Shares or other securities
of the Company, issuance of warrants or other rights to purchase Shares or other
securities of the Company or extraordinary transaction or event which affects
the Shares, then the Committee shall have the authority to make such adjustment,
if any, in such manner as it deems appropriate, in (i) the number and type of
Shares (or other securities or property) which thereafter may be made the
subject of Awards, (ii) outstanding Awards including without limitation the
number and type of Shares (or other securities or property) subject thereto, and
(iii) the grant, purchase or exercise price with respect to outstanding Awards
and, if deemed appropriate, make provision for cash payments to the holders of
outstanding Awards; provided, however, that the number of Shares subject to any
Award denominated in Shares shall always be a whole number.
Section 5. Eligibility
Any employee of or consultant to the Company or any Affiliate, including
any officer of the Company (who may also be a director, but excluding a member
of the Committee, any person who serves only as a director of the Company and
any consultant to the Company or an Affiliate who is also a director of the
Company and who is not rendering services pursuant to a written agreement with
the entity in question), as may be selected from time to time by the Committee
or by the directors to whom authority may be delegated pursuant to Section 3
hereof in its or their discretion, is eligible to be designated a Participant.
Section 6. Awards
(a) Options. The Committee is authorized to grant Options to
Participants.
(i) Committee Determinations. Subject to the terms of the Plan,
the Committee shall determine:
(A) the purchase price per Share under each Option;
(B) the term of each Option; and
(C) the time or times at which an Option may be exercised, in
whole or in part, the method or methods by which and the form or
forms (including, without limitation, cash, Shares, other Awards or
other property,
- 6 -
<PAGE>
or any combination thereof, having a fair market value on the
exercise date equal to the relevant exercise price) in which payment
of the exercise price with respect thereto may be made or deemed to
have been made. The terms of any Incentive Stock Option granted
under the Plan shall comply in all respects with the provisions of
Section 422 of the Code, or any successor provision thereto, and any
regulations promulgated thereunder.
Subject to the terms of the Plan, the Committee may impose such conditions
or restrictions on any Option as it deems appropriate.
(ii) Other Terms. Unless otherwise determined by the Committee:
(A) A Participant electing to exercise an Option shall give
written notice to the Company, as may be specified by the Committee,
of exercise of the Option and the number of Shares elected for
exercise, such notice to be accompanied by such instruments or
documents as may be required by the Committee, and shall tender the
purchase price of the Shares elected for exercise.
(B) At the time of exercise of an Option payment in full in
cash shall be made for all Shares then being purchased.
(C) The Company shall not be obligated to issue any Shares
unless and until:
(I) if the class of Shares at the time is listed upon
any stock exchange, the Shares to be issued have been listed,
or authorized to be added to the list upon official notice of
issuance, upon such exchange, and
(II) in the opinion of the Company's counsel there has
been compliance with applicable law in connection with the
issuance and delivery of Shares and such issuance shall have
been approved by the Company's counsel.
Without limiting the generality of the foregoing, the Company
may require from the Participant such investment representation or
such agreement, if any, as the Company's counsel may consider
necessary in order to comply with the Securities Act of 1933 as then
in effect, and may require that the Participant agree that any sale
of the Shares will be made only in such manner as shall be in accor-
dance with law and that the Participant will notify the Company of
any intent to make any disposition
- 7 -
<PAGE>
of the Shares whether by sale, gift or otherwise. The Participant
shall take any action reasonably requested by the Company in such
connection. A Participant shall have the rights of a stockholder
only as and when Shares have been actually issued to the Participant
pursuant to the Plan.
(D) If the employment of or consulting arrangement with a
Participant terminates for any reason (including termination by
reason of the fact that an entity is no longer an Affiliate) other
than the Participant's death, the Participant may thereafter
exercise the Option as provided below, except that the Committee may
terminate the unexercised portion of the Option concurrently with or
at any time following termination of the employment or consulting
arrangement (including termination of employment upon a change of
status from employee to consultant) if it shall determine that the
Participant has engaged in any activity detrimental to the interests
of the Company or an Affiliate. If such termination is voluntary on
the part of the Participant, the option may be exercised only within
ten days after the date of termination. If such termination is
involuntary on the part of the Participant, if an employee retires
on or after normal retirement date or if the employment or
consulting relationship is terminated by reason of permanent and
total disability, the Option may be exercised within three months
after the date of termination or retirement. For purposes of this
Paragraph (D), a Participant's employment or consulting arrangement
shall not be considered terminated (i) in the case of approved sick
leave or other bona fide leave of absence (not to exceed one year),
(ii) in the case of a transfer of employment or the consulting ar-
rangement among the Company and Affiliates, or (iii) by virtue of a
change of status from employee to consultant or from consultant to
employee, except as provided above.
(E) If a Participant dies at a time when entitled to exercise
an Option, then at any time or times within one year after death
such Option may be exercised, as to all or any of the Shares which
the Participant was entitled to purchase immediately prior to death.
The Company may decline to deliver Shares to a designated
beneficiary until it receives indemnity against claims of third
parties satisfactory to the Company. Except as so exercised such
Option shall expire at the end of such period.
(F) An Option may be exercised only if and to the extent such
Option was exercisable at the date of termination of employment or
the consulting arrangement,
- 8 -
<PAGE>
and an Option may not be exercised at a time when the Option would
not have been exercisable had the employment or consulting
arrangement continued.
(iii) Restoration Options. The Committee may grant a Participant
the right to receive a restoration Option with respect to an Option or any
other option granted by the Company. Unless the Committee shall otherwise
determine, a restoration Option shall provide that the underlying option
must be exercised while the Participant is an employee of or consultant to
the Company or an Affiliate and the number of Shares which are subject to
a restoration Option shall not exceed the number of whole Shares exchanged
in payment of the original option.
(b) Stock Appreciation Rights. The Committee is authorized to grant
Stock Appreciation Rights to Participants. Subject to the terms of the Plan, a
Stock Appreciation Right granted under the Plan shall confer on the holder
thereof a right to receive, upon exercise thereof, the excess of (i) the fair
market value of one Share on the date of exercise or, if the Committee shall so
determine in the case of any such right other than one related to any Incentive
Stock Option, at any time during a specified period before or after the date of
exercise over (ii) the grant price of the right as specified by the Committee.
Subject to the terms of the Plan, the Committee shall determine the grant price,
term, methods of exercise and settlement and any other terms and conditions of
any Stock Appreciation Right and may impose such conditions or restrictions on
the exercise of any Stock Appreciation Right as it may deem appropriate.
(c) Restricted Stock and Restricted Stock Units.
(i) Issuance. The Committee is authorized to grant to Participants
Awards of Restricted Stock, which shall consist of Shares, and Restricted
Stock Units which shall give the Participant the right to receive cash,
other securities, other Awards or other property, in each case subject to
the termination of the Restricted Period determined by the Committee.
(ii) Restrictions. The Restricted Period may differ among
Participants and may have different expiration dates with respect to
portions of Shares covered by the same Award. Subject to the terms of the
Plan, Awards of Restricted Stock and Restricted Stock Units shall have
such restrictions as the Committee may impose (including, without
limitation, limitations on the right to vote Restricted Stock or the right
to receive any dividend or other right or property), which restrictions
may lapse separately or in combination at such time or times, in
installments or otherwise. Unless the Committee shall otherwise determine,
any Shares or other
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securities distributed with respect to Restricted Stock or which a
Participant is otherwise entitled to receive by reason of such Shares
shall be subject to the restrictions contained in the applicable Award
Agreement. Subject to the aforementioned restrictions and the provisions
of the Plan, Participants shall have all of the rights of a stockholder
with respect to Shares of Restricted Stock.
(iii) Registration. Restricted Stock granted under the Plan may be
evidenced in such manner as the Committee may deem appropriate, including,
without limitation, book-entry registration or issuance of stock certifi-
cates.
(iv) Forfeiture. Except as otherwise determined by the Committee:
(A) If the employment of or consulting arrangement with a
Participant terminates for any reason (including termination by
reason of the fact that any entity is no longer an Affiliate), other
than the Participant's death or permanent and total disability or,
in the case of an employee, retirement on or after normal retirement
date, all Shares of Restricted Stock theretofore awarded to the
Participant which are still subject to restrictions shall upon such
termination of employment or the consulting relationship be
forfeited and transferred back to the Company. Notwithstanding the
foregoing or Paragraph (C) below, if a Participant continues to hold
an Award of Restricted Stock following termination of the employment
or consulting arrangement (including retirement and termination of
employment upon a change of status from employee to consultant), the
Shares of Restricted Stock which remain subject to restrictions
shall nonetheless be forfeited and transferred back to the Company
if the Committee at any time thereafter determines that the
Participant has engaged in any activity detrimental to the interests
of the Company or an Affiliate. For purposes of this Paragraph (A),
a Participant's employment or consulting arrangement shall not be
considered terminated (i) in the case of approved sick leave or
other bona fide leave of absence (not to exceed one year), (ii) in
the case of a transfer of employment or the consulting arrangement
among the Company and Affiliates, or (iii) by virtue of a change of
status from employee to consultant or from consultant to employee,
except as provided above.
(B) If a Participant ceases to be employed or retained by the
Company or an Affiliate by reason of death or permanent and total
disability or if following retirement a Participant continues to
have rights under an Award of Restricted Stock and thereafter dies,
the
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restrictions contained in the Award shall lapse with respect to such
Restricted Stock.
(C) If an employee ceases to be employed by the Company or an
Affiliate by reason of retirement on or after normal retirement
date, the restrictions contained in the Award of Restricted Stock
shall continue to lapse in the same manner as though employment had
not terminated.
(D) At the expiration of the Restricted Period as to Shares
covered by an Award of Restricted Stock, the Company shall deliver
the Shares as to which the Restricted Period has expired, as
follows:
(1) if an assignment to a trust has been made in
accordance with Section 6(g)(iv)(B)(2)(c), to such trust; or
(2) if the Restricted Period has expired by reason of
death and a beneficiary has been designated in form approved
by the Company, to the beneficiary so designated; or
(3) in all other cases, to the Participant or the legal
representative of the Participant's estate.
(d) Performance Awards. The Committee is authorized to grant Performance
Awards to Participants. Subject to the terms of the Plan, a Performance Award
granted under the Plan (i) may be denominated or payable in cash, Shares
(including, without limitation, Restricted Stock), other securities, other
Awards, or other property and (ii) shall confer on the holder thereof rights
valued as determined by the Committee and payable to, or exercisable by, the
holder of the Performance Award, in whole or in part, upon the achievement of
such performance goals during such performance periods as the Committee shall
establish. Subject to the terms of the Plan, the performance goals to be
achieved during any performance period, the length of any performance period,
the amount of any Performance Award granted, the amount of any payment or
transfer to be made pursuant to any Performance Award and other terms and
conditions shall be determined by the Committee.
(e) Dividend Equivalents. The Committee is authorized to grant to
Participants Awards under which the holders thereof shall be entitled to receive
payments equivalent to dividends or interest with respect to a number of Shares
determined by the Committee, and the Committee may provide that such amounts (if
any) shall be deemed to have been reinvested in additional Shares or otherwise
reinvested. Subject to the terms of the Plan, such Awards may have such terms
and conditions as the Committee shall determine.
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<PAGE>
(f) Other Stock-Based Awards. The Committee is authorized to grant to
Participants such other Awards that are denominated or payable in, valued in
whole or in part by reference to or otherwise based on or related to Shares
(including, without limitation, securities convertible into Shares), as are
deemed by the Committee to be consistent with the purposes of the Plan,
provided, however, that such grants to persons who are subject to Section 16
must comply with the provisions of Rule 16b-3. Subject to the terms of the Plan,
the Committee shall determine the terms and conditions of such Awards. Shares or
other securities delivered pursuant to a purchase right granted under this
Section 6(f) shall be purchased for such consideration, which may be paid by
such method or methods and in such form or forms, including, without limitation,
cash, Shares, other securities, other Awards or other property or any
combination thereof, as the Committee shall determine.
(g) General.
(i) No Cash Consideration for Awards. Awards may be granted for no
cash consideration or for such minimal cash consideration as may be
required by applicable law.
(ii) Awards May Be Granted Separately or Together. Awards may, in
the discretion of the Committee, be granted either alone or in addition
to, in tandem with or in substitution for any other Award or any award
granted under any other plan of the Company or any Affiliate. Awards
granted in addition to or in tandem with other Awards or in addition to or
in tandem with awards granted under another plan of the Company or any
Affiliate, may be granted either at the same time as or at a different
time from the grant of such other Awards or awards.
(iii) Forms of Payment Under Awards. Subject to the terms of the
Plan and of any applicable Award Agreement, payments or transfers to be
made by the Company or an Affiliate upon the grant, exercise, or payment
of an Award may be made in such form or forms as the Committee shall
determine, including, without limitation, cash, Shares, other securities,
other Awards, or other property, or any combination thereof, and may be
made in a single payment or transfer, in installments, or on a deferred
basis, in each case in accordance with rules and procedures established by
the Committee. Such rules and procedures may include, without limitation,
provisions for the payment or crediting of reasonable interest on
installment or deferred payments or the grant or crediting of Dividend
Equivalents in respect of installment or deferred payments.
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<PAGE>
(iv) Limits on Transfer of Awards.
(A) Except as the Committee may otherwise determine, no Award
or right under any Award may be sold, encumbered, pledged,
alienated, attached, assigned or transferred in any manner and any
attempt to do any of the foregoing shall be void and unenforceable
against the Company.
(B) Notwithstanding the provisions of Paragraph (A) above:
(1) An Option may be transferred:
(a) to a beneficiary designated by the Participant
in writing on a form approved by the Committee; or
(b) by will or the applicable laws of descent and
distribution to the personal representative, executor or
administrator of the Participant's estate.
(2) A Participant may assign or transfer rights under an
Award of Restricted Stock or Restricted Stock Units:
(a) to a beneficiary designated by the Participant
in writing on a form approved by the Committee;
(b) by will or the applicable laws of descent and
distribution to the personal representative, executor or
administrator of the Participant's estate; or
(c) to a revocable grantor trust established by the
Participant for the sole benefit of the Participant
during the Participant's life, and under the terms of
which the Participant is and remains the sole trustee
until death or physical or mental incapacity. Such
assignment shall be effected by a written instrument in
form and content satisfactory to the Committee, and the
Participant shall deliver to the Committee a true copy
of the agreement or other document evidencing such
trust. If in the judgment of the Committee the trust to
which a Participant may attempt to assign rights under
such an Award does not meet the criteria of a trust to
which an assignment is permitted by the terms
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<PAGE>
hereof, or if after assignment, because of amendment, by
force of law or any other reason such trust no longer
meets such criteria, such attempted assignment shall be
void and may be disregarded by the Committee and the
Company and all rights to any such Awards shall revert
to and remain solely in the Participant. Notwithstanding
a qualified assignment, the Participant, and not the
trust to which rights under such an Award may be
assigned, for the purpose of determining compensation
arising by reason of the Award shall continue to be
considered an employee or consultant, as the case may
be, of the Company or an Affiliate, but such trust and
the Participant shall be bound by all of the terms and
conditions of the Award Agreement and this Plan. Shares
issued in the name of and delivered to such trust shall
be conclusively considered issuance and delivery to the
Participant.
(3) The Committee shall not permit directors or officers
of the Company for purposes of Section 16 to transfer or
assign Awards except as permitted under Rule 16b-3.
(C) The Committee, the Company and its officers, agents and
employees may rely upon any beneficiary designation, assignment or
other instrument of transfer, copies of trust agreements and any
other documents delivered to them by or on behalf of the Participant
which they believe genuine and any action taken by them in reliance
thereon shall be conclusive and binding upon the Participant, the
personal representatives of the Participant's estate and all persons
asserting a claim based on an Award. The delivery by a Participant
of a beneficiary designation, or an assignment of rights under an
Award as permitted hereunder, shall constitute the Participant's
irrevocable undertaking to hold the Committee, the Company and its
officers, agents and employees harmless against claims, including
any cost or expense incurred in defending against claims, of any
person (including the Participant) which may be asserted or alleged
to be based on an Award subject to a beneficiary designation or an
assignment. In addition, the Company may decline to deliver Shares
to a beneficiary until it receives indemnity against claims of third
parties satisfactory to the Company.
(v) Share Certificates. All certificates for Shares or other
securities delivered under the Plan pursuant to any Award or the exercise
thereof shall be subject to such stop
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<PAGE>
transfer orders and other restrictions as the Committee may deem advisable
under the Plan or the rules, regulations and other requirements of the
Securities and Exchange Commission, any stock exchange upon which such
Shares or other securities are then listed and any applicable Federal or
state securities laws, and the Committee may cause a legend or legends to
be put on any such certificates to make appropriate reference to such
restrictions.
(vi) Change in Control. (A) Notwithstanding any of the provisions
of this Plan or instruments evidencing Awards granted hereunder, upon a
Change in Control of the Company (as hereinafter defined) the vesting of
all rights of Participants under outstanding Awards shall be accelerated
and all restrictions thereon shall terminate in order that Participants
may fully realize the benefits thereunder. Such acceleration shall
include, without limitation, the immediate exercisability in full of all
Options and the termination of restrictions on Restricted Stock and
Restricted Stock Units. Further, in addition to the Committee's authority
set forth in Section 4(b), the Committee, as constituted before such
Change in Control, is authorized, and has sole discretion, as to any
Award, either at the time such Award is made hereunder or any time
thereafter, to take any one or more of the following actions: (i) provide
for the purchase of any such Award, upon the Participant's request, for an
amount of cash equal to the amount that could have been attained upon the
exercise of such Award or realization of the Participant's rights had such
Award been currently exercisable or payable; (ii) make such adjustment to
any such Award then outstanding as the Committee deems appropriate to
reflect such Change in Control; and (iii) cause any such Award then
outstanding to be assumed, or new rights substituted therefor, by the
acquiring or surviving corporation after such Change in Control.
(B) With respect to any Award granted hereunder prior to December 6,
1995, a Change in Control shall occur if:
(1) any "person" or "group of persons" as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act, other than pursuant
to a transaction or agreement previously approved by the Board of
Directors of the Company, directly or indirectly purchases or
otherwise becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act) or has the right to acquire such beneficial
ownership (whether or not such right is exercisable immediately,
with the passage of time, or subject to any condition) of voting
securities representing 25 percent or more of the combined voting
power of all outstanding voting securities of (A) the Company or (B)
of Masco Corporation, a Delaware corporation ("Masco"); or
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<PAGE>
(2) during any period of twenty-four consecutive calendar
months, the individuals who at the beginning of such period
constitute the Company's or Masco's Board of Directors, and any new
directors whose election by such Board or nomination for election by
stockholders was approved by a vote of at least two-thirds of the
members of such Board who were either directors on such Board at the
beginning of the period or whose election or nomination for election
as directors was previously so approved, for any reason cease to
constitute at least a majority of the members thereof.
(C) Notwithstanding the provisions of subparagraph (B), with
respect to Awards granted hereunder on or after December 6, 1995, a Change
in Control shall occur only if the event described in this subparagraph
(C) shall have occurred. With respect to any other Award granted prior
thereto, a Change in Control shall occur if any of the events described in
subparagraphs (B) or (C) shall have occurred, unless the holder of any
such Award shall have consented to the application of this subparagraph
(C) in lieu of the foregoing subparagraph (B). A Change in Control for
purposes of this subparagraph (C) shall occur if, during any period of
twenty-four consecutive calendar months, the individuals who at the
beginning of such period constitute the Company's Board of Directors, and
any new directors (other than Excluded Directors, as hereinafter defined),
whose election by such Board or nomination for election by stockholders
was approved by a vote of at least two-thirds of the members of such Board
who were either directors on such Board at the beginning of the period or
whose election or nomination for election as directors was previously so
approved, for any reason cease to constitute at least a majority of the
members thereof. For purposes hereof, "Excluded Directors" are directors
whose election by the Board or approval by the Board for stockholder
election occurred within one year of any "person" or "group of persons",
as such terms are used in Sections 13(d) and 14(d) of the Exchange Act,
commencing a tender offer for, or becoming the beneficial owner of, voting
securities representing 25 percent or more of the combined voting power of
all outstanding voting securities of the Company, other than pursuant to a
tender offer approved by the Board prior to its commencement or pursuant
to stock acquisitions approved by the Board prior to their representing 25
percent or more of such combined voting power.
(D) (1) In the event that subsequent to a Change in Control it
is determined that any payment or distribution by the Company to or for
the benefit of a Participant, whether paid or payable or distributed or
distributable pursuant to the terms of this Plan or otherwise, other than
any payment pursuant to this subparagraph (D) (a "Payment"), would be
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<PAGE>
subject to the excise tax imposed by Section 4999 of the Code or any
interest or penalties with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then such Participant shall
be entitled to receive from the Company, within 15 days following the
determination described in (2) below, an additional payment ("Excise Tax
Adjustment Payment") in an amount such that after payment by such
Participant of all applicable Federal, state and local taxes (computed at
the maximum marginal rates and including any interest or penalties imposed
with respect to such taxes), including any Excise Tax, imposed upon the
Excise Tax Adjustment Payment, such Participant retains an amount of the
Excise Tax Adjustment Payment equal to the Excise Tax imposed upon the
Payments.
(2) All determinations required to be made under this
Section 6(g)(vi)(D), including whether an Excise Tax Adjustment Payment is
required and the amount of such Excise Tax Adjustment Payment, shall be
made by Coopers & Lybrand L.L.P., or such other national accounting firm
as the Company, or, subsequent to a Change in Control, the Company and the
Participant jointly, may designate, for purposes of the Excise Tax, which
shall provide detailed supporting calculations to the Company and the
affected Participant within 15 business days of the date of the applicable
Payment. Except as hereinafter provided, any determination by Coopers &
Lybrand L.L.P., or such other national accounting firm, shall be binding
upon the Company and the Participant. As a result of the uncertainty in
the application of Section 4999 of the Code that may exist at the time of
the initial determination hereunder, it is possible that (x) certain
Excise Tax Adjustment Payments will not have been made by the Company
which should have been made (an "Underpayment"), or (y) certain Excise Tax
Adjustment Payments will have been made which should not have been made
(an "Overpayment"), consistent with the calculations required to be made
hereunder. In the event of an Underpayment, such Underpayment shall be
promptly paid by the Company to or for the benefit of the affected
Participant. In the event that the Participant discovers that an
Overpayment shall have occurred, the amount thereof shall be promptly
repaid to the Company.
(3) This Section 6(g)(vi)(D) shall not apply to any Award
(x) that was granted prior to February 17, 1993 and (y) the holder of
which is an executive officer of the Company, as determined under the
Exchange Act.
(vii) Cash Settlement. Notwithstanding any provision of this Plan
or of any Award Agreement to the contrary, any Award outstanding hereunder
may at any time be cancelled in the
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Committee's sole discretion upon payment of the value of such Award to the
holder thereof in cash or in another Award hereunder, such value to be
determined by the Committee in its sole discretion.
Section 7. Amendment and Termination
Except to the extent prohibited by applicable law and unless otherwise
expressly provided in an Award Agreement or in the Plan:
(a) Amendments to the Plan. The Board of Directors of the Company may
amend the Plan and the Board of Directors or the Committee may amend any
outstanding Award; provided, however, that (i) no Plan amendment shall be
effective until approved by stockholders of the Company insofar as stockholder
approval thereof is required in order for the Plan to continue to satisfy the
conditions of Rule 16b-3, and (ii) without the consent of affected Participants
no amendment of the Plan or of any Award may impair the rights of Participants
under outstanding Awards.
(b) Waivers. The Committee may waive any conditions or rights under any
Award theretofore granted, prospectively or retroactively, without the consent
of any Participant.
(c) Adjustments of Awards Upon the Occurrence of Certain Unusual or
Nonrecurring Events. The Committee shall be authorized to make adjustments in
the terms and conditions of, and the criteria included in, Awards in recognition
of unusual or nonrecurring events (including, without limitation, the events
described in Section 4(b) hereof) affecting the Company, any Affiliate, or the
financial statements of the Company or any Affiliate, or of changes in
applicable laws, regulations, or accounting principles, whenever the Committee
determines that such adjustments are appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits to be made available under the
Plan.
(d) Correction of Defects, Omissions, and Inconsistencies. The Committee
may correct any defect, supply any omission or reconcile any inconsistency in
the Plan or any Award in the manner and to the extent it shall deem desirable to
effectuate the Plan.
Section 8. General Provisions
(a) No Rights to Awards. No Participant or other person shall have any
claim to be granted any Award under the Plan, and there is no obligation for
uniformity of treatment of Participants or holders or beneficiaries of Awards
under the Plan. The terms and conditions of Awards of the same type and the
determination of the Committee to grant a waiver or modification of any Award
and the
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<PAGE>
terms and conditions thereof need not be the same with respect to each
Participant.
(b) Withholding. The Company or any Affiliate shall be authorized to
withhold from any Award granted or any payment due or transfer made under any
Award or under the Plan the amount (in cash, Shares, other securities, other
Awards or other property) of withholding taxes due in respect of an Award, its
exercise or any payment or transfer under such Award or under the Plan and to
take such other action as may be necessary in the opinion of the Company or
Affiliate to satisfy all obligations for the payment of such taxes.
(c) No Limit on Other Compensation Arrangements. Nothing contained in
the Plan shall prevent the Company or any Affiliate from adopting or continuing
in effect other or additional compensation arrangements, including the grant of
options and other stock-based awards, and such arrangements may be either
generally applicable or applicable only in specific cases.
(d) No Right to Employment. The grant of an Award shall not be construed
as giving a Participant the right to be retained in the employ of the Company or
any Affiliate. Further, the Company or an Affiliate may at any time dismiss a
Participant from employment, free from any liability, or any claim under the
Plan, unless otherwise expressly provided in the Plan or in any Award Agreement
or other written agreement with the Participant.
(e) Governing Law. The validity, construction and effect of the Plan and
any rules and regulations relating to the Plan shall be determined in accordance
with the laws of the State of Michigan and applicable Federal law.
(f) Severability. If any provision of the Plan or any Award is or
becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction
or as to any person or Award, or would disqualify the Plan or any Award under
any law deemed applicable by the Committee, such provision shall be construed or
deemed amended to conform to applicable laws, or if it cannot be so construed or
deemed amended without, in the determination of the Committee, materially
altering the intent of the Plan or the Award, such provision shall be stricken
as to such jurisdiction, person or Award, and the remainder of the Plan and any
such Award shall remain in full force and effect.
(g) No Trust or Fund Created. Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Affiliate and a Participant or
any other person. To the extent that any person acquires a right to receive
payments from the Company or any Affiliate pursuant to an Award, such right
shall be no greater
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<PAGE>
than the right of any unsecured general creditor of the Company or any
Affiliate.
(h) No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award, and the Committee shall determine
whether cash, other securities, or other property shall be paid or transferred
in lieu of any fractional Shares, or whether such fractional Shares or any
rights thereto shall be cancelled, terminated or otherwise eliminated.
(i) Headings. Headings are given to the Sections and subsections of the
Plan solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Plan or any provision thereof.
Section 9. Effective Date of the Plan
The Plan shall be effective as of the date of its approval by the
Company's stockholders.
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of October 15, 1996 (the
"Agreement"), is between Richard A. Manoogian ("Manoogian"), and MASCOTECH,
INC., a Delaware corporation (the "Company").
WHEREAS, Manoogian is the beneficial owner of shares of the Company's
Common Stock, par value $1.00 per share (the "Common Stock"); and
WHEREAS, Manoogian desires to sell and the Company desires to purchase
1,000,000 shares of Common Stock (the "Repurchased Stock") owned beneficially by
Manoogian upon the terms and conditions hereinafter provided; and
WHEREAS, simultaneously herewith the Company has entered into a stock
purchase agreement with Masco Corporation (the "Company Agreement") providing
for the Company to repurchase 17,000,000 shares of Common Stock and warrants to
purchase 10,000,000 shares of Common Stock;
NOW, THEREFORE, it is hereby agreed as follows:
1. PURCHASE AND SALE OF REPURCHASED STOCK; CLOSING.
(a) Subject to the satisfaction or waiver of the conditions set forth in
Section 5 hereof, Manoogian hereby agrees to sell, convey, transfer and deliver
to the Company, and the Company hereby agrees to purchase from Manoogian, the
Repurchased Stock in consideration for $13,625,000 (the "Purchase Price").
(b) The closing of the purchase and sale of the Repurchased Stock (the
"Closing") shall take place at the offices of the Company at 21001 Van Born
Road, Taylor Michigan 48180 at 10:00 a.m. Detroit time not later than three
business days following the satisfaction of the conditions set forth in Section
5 hereof, or at such other time as shall be agreed to in writing by the Company
and Manoogian (the "Closing Date").
(c) At the Closing,
(i) Manoogian will deliver to the Company a certificate or
certificates evidencing the Repurchased Stock being purchased by the
Company hereby, free and clear of any claim, lien, pledge, option, charge,
security interest or encumbrance of any nature whatsoever (collectively
"Encumbrances"), duly endorsed for transfer to the Company's order or
accompanied by stock powers duly executed to the Company's order and with
all requisite documentary or stock transfer tax stamps affixed; and
(ii) the Company will pay to Manoogian the Purchase Price for the
Repurchased Stock by (aa) the wire transfer of $6,000,000 in immediately
available funds to such bank
<PAGE>
account as Manoogian shall have designated in writing to the Company at
least three days prior to the Closing, and (bb) the delivery to Manoogian
of an unsecured Promissory Note in the principal amount of $7,625,000
substantially in the form attached as Exhibit A.
2. REPRESENTATIONS AND COVENANTS OF MANOOGIAN. Manoogian hereby
represents, warrants and covenants to the Company as follows:
(a) Title to Common Stock. Manoogian is the record holder and sole
beneficial owner of the Repurchased Stock being sold pursuant to this Agreement
and such Repurchased Stock will be delivered free and clear of any Encumbrances.
(b) Authority: Execution and Delivery, Etc. Manoogian has full power
and authority to enter into this Agreement and Manoogian has full power to sell
the Repurchased Stock in accordance with the terms hereof. This Agreement has
been duly executed and delivered by Manoogian and constitutes the valid and
binding obligation of Manoogian, enforceable against Manoogian in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium or other similar laws affecting the rights of
creditors generally and except as rights to specific enforcement may be limited
by the application of equitable principles (whether such equitable principles
are applied in a proceeding at law or in equity).
(c) Consents, No Conflicts, Etc. Neither the execution and delivery of
this Agreement, the consummation by Manoogian of the transactions contemplated
by this Agreement nor compliance by Manoogian with any of the provisions hereof
will (with or without the giving of notice or the passage of time) at the time
of delivery of the Repurchased Stock (i) violate or conflict with any agreement,
instrument, judgment or decree applicable to Manoogian or any assets or
properties of Manoogian, (ii) violate any material order, writ, injunction,
decree, statute, rule or regulation applicable to Manoogian or any material
assets or properties of Manoogian or (iii) require Manoogian to obtain any
material consent, approval, permission or other authorization of or by, or to
make any material designation, declaration, filing, registration or
qualification with, any court, arbitrator or governmental, administrative or
self-regulatory authority or any other third party whatsoever, other than any
disclosure of the transactions contemplated hereby that may be required in
Manoogian's filings pursuant to the federal securities laws.
(d) No Brokers. Manoogian has not entered into, and will not enter
into, any agreement, arrangement or understanding with any person or firm with
respect to the Repurchased Stock which will result in the obligation of the
Company to pay any finder's fee, brokerage commission or similar payment in
connection with the transactions contemplated hereby. Manoogian agrees to
indemnify and hold the Company harmless from and against any and all claims,
liabilities and obligations with respect to any finder's fees, brokerage
commissions or similar payments asserted by any person on the basis of any act
or statement alleged to have been made by Manoogian.
2
<PAGE>
(e) Access to Information. Manoogian acknowledges that he has been
offered access to the business records of the Company and such additional
information as he has requested in order that he may make an informed decision
regarding the transactions contemplated hereby and has been given the
opportunity to meet with Company officials and to have representatives of the
Company answer questions regarding the Company's affairs and condition.
Manoogian is an experienced and sophisticated participant in transactions of the
kind contemplated hereby, is capable of evaluating the merits and risks of
transactions of the kind contemplated hereby, is experienced in the evaluation
of enterprises such as the Company and has undertaken such investigation and
evaluated such information regarding the Company as he has deemed necessary to
make an informed and intelligent decision with respect to the execution and
performance of this Agreement.
3. REPRESENTATIONS AND COVENANTS OF THE COMPANY. The Company hereby
represents, warrants and covenants to Manoogian as follows:
(a) Organization and Good Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
(b) Authority, Execution and Delivery, Etc. The Company has full
corporate power and authority to enter into this Agreement and to purchase the
Repurchased Stock in accordance with the terms hereof. The execution, delivery
and performance of this Agreement have been duly authorized by the Company and
no other actions on the part of the Company are required. This Agreement has
been duly executed and delivered by the Company and constitutes the legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium or other similar laws affecting
the rights of creditors generally and except as rights to specific enforcement
may be limited by the application of equitable principles (whether such
equitable principles are applied in a proceeding at law or in equity).
(c) Consents, No Conflicts, Etc. Neither the execution and delivery of
this Agreement, the consummation by the Company of the transactions contemplated
hereby, nor compliance by the Company with any of the provisions hereof will
(with or without the giving of notice or the passage of time) (i) violate or
conflict with any provision of the Certificate of Incorporation or By-Laws of
the Company or any agreement, instrument, judgment, decree, statute or
regulation applicable to the Company or any assets or properties of the Company,
(ii) violate any material order, writ, injunction, decree, statute, rule or
regulation applicable to the Company or any material assets or properties of the
Company or (iii) except as set forth in the Credit Agreement, dated as of
September 2, 1993, as amended, among the Company, the banks signatory thereto,
and NBD Bank (formerly, NBD Bank, N.A.), as Agent (the "Credit Agreement"),
require any material consent, approval, permission or other authorization of or
by, or to make any material designation, declaration, filing, registration or
qualification with, any court, arbitrator or governmental, administrative or
self-regulatory authority or any other third party whatsoever, other than any
disclosure of the transactions contemplated hereby that may be required in the
Company's filings pursuant to the federal securities laws and the rules of the
New York Stock Exchange.
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(d) After giving effect to the repurchase of the Repurchased Stock and
the transactions contemplated by the Company Agreement, the Company will not be
insolvent and will not have unreasonably small capital with which to engage in
its businesses. The completion of the transactions contemplated hereby and
thereby will comply with the Delaware General Corporation Law. The Company is
not a party to, and is not engaged in any discussions with any third person with
respect to any agreement other than the Company Agreement pursuant to which the
Company would repurchase any material amount of its shares of its capital stock
and, except as previously disclosed in its public filing with the Securities and
Exchange Commission (the "Commission"), the Company is not a party to, and is
not engaged in any discussions with any third person with respect to any
agreement to issue any material amount of its securities.
(e) No Material Changes. The Company has filed all required forms,
reports and documents with the Commission required to be filed by it since
December 31, 1994 pursuant to the Securities Act of 1933, as amended (the
"Securities Act") and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations promulgated thereunder
(collectively, the "Company SEC Documents"), all of which have complied in all
material respects with the applicable requirements of the Securities Act and the
Exchange Act and such rules and regulations. As of their respective dates, the
Company SEC Documents did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. Other than as disclosed in the documents referred to in
this Section 3(e), since the filing of the Quarterly Report on Form 10-Q for the
period ended June 30, 1996, there has been no material adverse change in the
results of operations or financial condition of the Company.
(f) No Brokers. The Company has not entered into and will not enter
into any agreement, arrangement or understanding with any person or firm which
will result in the obligation of Manoogian to pay any finder's fee, brokerage
commission or similar payment in connection with the transactions contemplated
hereby. The Company will pay the fees and expenses of Smith Barney Inc.
incurred in connection with the transactions contemplated by this Agreement and
agrees to indemnify and hold Manoogian harmless from and against any and all
claims, liabilities and obligations with respect to any such fees and expenses
and finder's fees, brokerage commissions or similar payments asserted by any
person on the basis of any act or statement alleged to have been made by the
Company.
(g) Adequacy of Capital and Surplus. As of the date hereof the
transactions contemplated hereby and under the Company Agreement could be
consummated without the capital of the Company being impaired under the Delaware
General Corporation Law.
4. OTHER AGREEMENTS.
(a) Cooperation. Manoogian and the Company will each cooperate with the
other and use reasonable efforts to cause the fulfillment of the conditions to
the other's obligations hereunder. Without limiting the generality of the
foregoing, if any order, decree, preliminary or permanent
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injunction or restraining order shall have been enacted, entered, promulgated or
enforced by any court or other governmental authority having jurisdiction which
prohibits or restricts the consummation of the transactions contemplated hereby,
or if any action, suit, claim or proceeding before any court or governmental
authority shall be threatened or shall have been commenced and be pending which
seeks to prohibit or restrict the consummation of the transactions contemplated
hereby, each of Manoogian and the Company shall use reasonable efforts and take
such actions as may be necessary, at his or its own expense, as the case may be,
to have any such order, stay, judgment or decree lifted or dismissed and any
such suit, action or proceeding dismissed or terminated.
5. CONDITIONS TO THE CLOSING.
(a) It shall be a condition to the Company's obligation to purchase the
Repurchased Stock at the Closing that:
(i) the representations and warranties of Manoogian shall be true
and correct in all material respects (and by the tendering of the
Repurchased Stock by Manoogian at the Closing Manoogian shall be deemed to
have represented and warranted that this is so) and Manoogian shall have
complied in all material respects with all covenants required to be
performed prior to the Closing Date;
(ii) there is not in effect at the time any preliminary or
permanent injunction or other order by any court or governmental authority
having jurisdiction which prevents or restrains the purchase or sale and
delivery of the Repurchased Stock;
(iii) the Company shall have obtained any waiver or consent required
under the Credit Agreement or shall have obtained substitute financing on
terms reasonably acceptable to the Company in order to repurchase the
Repurchased Stock;
(iv) Masco Corporation ("Masco") shall have delivered to the
Company duly executed amendments to the following agreements with Masco:
Corporate Services Agreement, dated as of January 1, 1987, the Corporate
Opportunities Agreement, dated as of May 1, 1984, and the Amended and
Restated Securities Purchase Agreement, dated as of November 23, 1993;
(v) Masco shall have delivered to the Company a duly executed
termination of the Warrant Agreement, dated as of March 31, 1993, between
Masco and the Company;
(vi) there shall be a simultaneous closing under the Company
Agreement; and
(vii) the purchase of the Repurchased Stock shall not result in the
capital of the Company being impaired under the Delaware General
Corporation Law.
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(b) It shall be a condition to the obligations of Manoogian to sell the
Repurchased Stock at the Closing that:
(i) the representations and warranties of the Company shall be
true and correct in all material respects (and by tendering the Purchase
Price at the Closing the Company shall be deemed to have represented and
warranted that this is so) and the Company shall have complied in all
material respects with all covenants required to be performed prior to the
Closing Date;
(ii) there is not in effect at the time any preliminary or
permanent injunction or other order by any court or governmental authority
having jurisdiction which prevents or restrains the purchase or sale and
delivery of the Repurchased Stock; and
(iii) there shall be a simultaneous closing under the Company
Agreement.
6. SPECIFIC PERFORMANCE.
(a) Manoogian acknowledges that money damages are an inadequate remedy
for a breach of this Agreement which would prevent consummation of the sale of
the Repurchased Stock to the Company because of the difficulty of ascertaining
the amount of damage that would be suffered by the Company in such event.
Therefore, Manoogian agrees that the Company may obtain specific performance to
mandate the sale of the Repurchased Stock to the Company in accordance with this
Agreement in the event Manoogian's breach would otherwise prevent consummation
of the sale of the Repurchased Stock to the Company as set forth in this
Agreement.
(b) The Company acknowledges that money damages are an inadequate remedy
for a breach of this Agreement which would prevent consummation of the purchase
of the Repurchased Stock by the Company because of the difficulty of
ascertaining the amount of damage that would be suffered by Manoogian in such
event. Therefore, the Company agrees that Manoogian may obtain specific
performance to mandate the purchase of the Repurchased Stock by the Company in
accordance with this Agreement in the event the Company's breach would otherwise
prevent consummation of the purchase of the Repurchased Stock by the Company as
set forth in this Agreement.
7. MISCELLANEOUS.
(a) Expenses. Each party shall be liable for his or its own expenses,
as the case may be, in connection with the transactions contemplated by this
Agreement.
(b) Amendments, Etc. All amendments or waivers of any provisions of
this Agreement may only be made pursuant to a written instrument executed by the
parties hereto or their successors and assigns.
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(c) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective successors and
assigns; nothing in this Agreement is intended to confer on any person or entity
other than the parties hereto and their respective successors and assigns any
rights, remedies, obligations or liabilities by reason of this Agreement.
(d) Notices. All notices, requests and other communications provided
for hereunder shall be effective upon receipt, shall be in writing and shall be
deemed to have been duly given if delivered in person or by courier, telegraph,
telex or by facsimile transmission with electromechanical report of delivery:
If to the Company:
MascoTech, Inc.
21001 Van Born Road
Taylor, Michigan 48180
Attention: Lee M. Gardner
With a copy to:
Dykema Gossett PLLC
1577 North Woodward Avenue
Bloomfield Hills, Michigan 48304-2820
Attention: Rex E. Schlaybaugh, Jr., Esq.
If to Manoogian:
c/o Masco Corporation
21001 Van Born Road
Taylor, Michigan 48180
Attention: Richard A. Manoogian
With a copy to:
Masco Corporation
21001 Van Born Road
Taylor, Michigan 48180
Attention: John R. Leekley, Esq.
or to such other address with respect to any party as such party shall notify
the others in writing.
(e) Governing Law and Jurisdiction. This Agreement shall be construed
and enforced in accordance with, and the rights of the parties shall be governed
by, the laws of the State of Michigan (without regard to the choice of law
provisions thereof).
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<PAGE>
(f) Headings. The descriptive headings of the several paragraphs of
this Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
(g) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
(h) Complete Agreement. This Agreement and the Exhibits attached hereto
contain the entire agreement between the parties with respect to the subject
matter hereof and, except as provided herein, supersedes all previous
negotiations, commitments and writings.
(i) Termination. This Agreement shall terminate if the Closing
contemplated hereby shall not have occurred on or prior to December 31, 1996.
Notwithstanding the foregoing, the provisions of Section 7(a) shall survive
termination of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed and delivered
this Agreement as of the date first above written.
/s/ Richard A. Manoogian
RICHARD A. MANOOGIAN
MASCOTECH, INC.
By:/s/ Timothy Wadhams
Timothy Wadhams
Vice President, Controller and Treasurer
8
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Exhibit A
PROMISSORY NOTE
$7,625,000.00 _________, 1996
FOR VALUE RECEIVED, MascoTech, Inc., a Delaware corporation with its
principal offices located at 21001 Van Born Road, Taylor, Michigan 48180
("MascoTech"), hereby promises to pay to the order of Richard A. Manoogian, c/o
Masco Corporation, 21001 Van Born Road, Taylor, Michigan 48180 ("Payee"), in
lawful money of the United States of America, the principal sum of Seven Million
Six Hundred Twenty Five Thousand Dollars ($7,625,000.00) (the "Principal
Amount"), together with interest, in accordance with the terms hereof.
This Note is referred to in, and issued pursuant to, that certain Stock
Purchase Agreement, dated as of October 15, 1996, by and between MascoTech and
Payee (the "Stock Purchase Agreement"). Capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Stock Purchase
Agreement.
The Principal Amount shall be due and payable in one, lump-sum payment on
September 30, 1997 (the "Maturity Date"). Interest from the date hereof on the
unpaid Principal Amount shall accrue at the per annum rate of six and five-
eights percent (6-5/8%), and shall be payable in four installments on December
31, 1996, March 31, 1997, June 30, 1997 and September 30, 1997.
This Note may be prepaid in whole at any time or in part from time to
time, with accrued interest, without penalty or premium.
MascoTech agrees to pay all costs of collection of any amounts due
hereunder when incurred, including, without limitation, reasonable attorneys'
fees and expenses, unless prohibited by law.
MascoTech hereby waives presentment for payment, demand, notice of
dishonor, notice of protest and all other notices and demands in connection with
the delivery, acceptance, performance or default of this Note and agrees that
this Note may not be changed, modified or terminated orally, but only by an
agreement in writing signed by MascoTech and Payee.
This Note shall become immediately due and payable upon notice by Payee to
MascoTech if one or more of the following events shall have occurred and be
continuing (except in the case of the events specified in clauses (e) and (f) in
which event this Note shall become immediately due and payable without any such
notice):
(a) any event or condition shall occur which results in the acceleration
of the maturity of any indebtedness for borrowed money in excess of
$10,000,000 or enables (or, with the giving of notice or lapse of time or
both, would enable) the holder of such indebtedness or any person acting
on such holder's behalf to accelerate the maturity thereof;
<PAGE>
(b) default in the payment of interest upon this Note when it becomes
due and payable and continuance of such default for a period of 5 days; or
(c) default in the payment of all or any part of the principal of this
Note as and when the same shall become due and payable;
(d) any representation or warranty of MascoTech in the Stock Purchase
Agreement should prove to have been incorrect in any material respect when
made or deemed made;
(e) MascoTech shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself
or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial
part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors;
(f) an involuntary case or other proceeding shall be commenced against
MascoTech seeking liquidation, reorganization or other relief with respect
to it or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60 days;
or an order for relief shall be entered against MascoTech under the
federal bankruptcy laws as now or hereafter in effect;
(g) a judgment or order for the payment of money in excess of $5,000,000
shall be rendered against MascoTech and such judgment or order shall
continue unsatisfied and unstayed for a period of 20 days.
This Note shall be governed by, and construed in accordance with, the law
of the State of Michigan.
Any notice or other communication under this Note shall be in writing and
shall be considered given when mailed by certified or registered mail, return
receipt requested, to the Chief Financial Officer of MascoTech or to the Payee,
as the case may be, at the address set forth in the first paragraph of this Note
(or at such other address as either party may specify by notice to the other).
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed in
its corporate name by a duly authorized officer, as of the date first written
above.
<PAGE>
MASCOTECH, INC.
By:
Name:
Title:
BH\ 85483
ID\ DRM
