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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
SCHEDULE 14D-1
(Amendment No. 2)
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
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TRIMAS CORPORATION
(Exact name of Subject Company)
MASCOTECH, INC.
MASCOTECH ACQUISITION, INC.
(Bidders)
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Common Stock, $.01 Par Value
(Title of Class of Securities)
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896215100
(CUSIP Number of Class of Securities)
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David B. Liner, Esq.
MascoTech, Inc.
21001 Van Born Road
Taylor, Michigan 48180
(313) 274-7405
(Name, Address and Telephone Number of Persons Authorized to Receive Notices
and Communications on Behalf of Person(s) Filing Statement)
--------------
With Copies to:
David W. Ferguson, Esq. Jerome M. Schwartz, Esq.
Davis Polk & Wardwell Dickinson, Wright, Moon, Van Dusen & Freeman
450 Lexington Avenue 500 Woodward Avenue, Suite 4000
New York, New York 10017 Detroit, Michigan 48226
(212) 450-4000 (313) 223-3628
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This Amendment No. 2 (this "Amendment") amends and supplements
the Tender Offer Statement on Schedule 14D-1 originally filed on December 17,
1997 by MascoTech, Inc., a Delaware corporation ("Parent"), and MascoTech
Acquisition, Inc., a Delaware corporation and a wholly owned subsidiary of
Parent ("Purchaser"), as amended by Amendment No. 1, dated December 22, 1997,
relating to the offer by Purchaser to purchase all of the issued and
outstanding shares (the "Shares") of common stock, $.01 par value per share,
of TriMas Corporation, a Delaware corporation, at a price of $34.50 per Share,
net to the seller in cash, upon the terms and subject to the conditions set
forth in the Offer to Purchase dated December 17, 1997 and in the related
Letter of Transmittal.
All capitalized terms used in this Amendment without definition
have the meanings attributed to them in the Schedule 14D-1.
The items of the Schedule 14D-1 set forth below are hereby
amended as follows:
Item 8. Persons Retained, Employed or to Be Compensated.
Item 8 is hereby supplemented and amended to incorporate by
reference the information set forth under "Special Factors--Opinion of
Financial Advisor to the Special Committee" in the Supplement, dated December
31, 1997, to the Offer to Purchase, a copy of which is attached hereto as
Exhibit (a)(10).
Item 11. Material to be Filed as Exhibits.
Item 11 is hereby supplemented and amended by adding the
following exhibits:
(a)(10) Supplement, dated December 31, 1997, to Offer to
Purchase.
(g)(6) Memorandum of Understanding between law firms on behalf
of Charlene Blue, Gerald Sapsowitz, Charter Capital
Corp., Roseanne Caruso and Betty Barsky, the Company,
Parent and individuals named as defendants dated
December 31, 1997.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this Amendment is true,
complete and correct.
December 31, 1997 MASCOTECH, INC.
By: /s/ David B. Liner
----------------------------------------------
Name: David B. Liner
Title: Vice President and Corporate Counsel
MASCOTECH ACQUISITION, INC.
By: /s/ David B. Liner
----------------------------------------------
Name: David B. Liner
Title: Secretary
EXHIBIT INDEX
Exhibit No.
- -----------
(a)(10) Supplement, dated December 31, 1997, to Offer to Purchase.
(g)(6) Memorandum of Understanding between law firms on behalf of
Charlene Blue, Gerald Sapsowitz, Charter Capital Corp., Roseanne
Caruso and Betty Barsky, the Company, Parent and individuals
named as defendants dated December 31, 1997.
Exhibit (a)(10)
Supplement Dated December 31, 1997 to
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
TriMas Corporation
at
$34.50 Net Per Share
by
MascoTech Acquisition, Inc.
a wholly owned subsidiary of
MascoTech, Inc.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON FRIDAY, JANUARY 16, 1998, UNLESS THE OFFER IS EXTENDED.
To the Holders of Common Stock of
TriMas Corporation:
This Supplement amends and supplements the Offer to Purchase
dated December 17, 1997 (the "Offer to Purchase") of MascoTech Acquisition,
Inc., a Delaware corporation ("Purchaser") and a wholly owned subsidiary of
MascoTech, Inc., a Delaware corporation ("Parent"), with respect to the tender
offer made by Purchaser to purchase any and all of the outstanding shares (the
"Shares") of common stock, par value $.01 per share (the "Common Stock"), of
TriMas Corporation (the "Company"), a Delaware corporation, at a price of
$34.50 per Share, net to the seller in cash (the "Offer Price"), upon the
terms and subject to the conditions set forth in the Offer to Purchase and in
the related Letter of Transmittal (which together constitute the "Offer").
Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to them in the Offer to Purchase. This Supplement, the
Offer to Purchase and the related Letter of Transmittal contain important
information which should be read before any decision is made with respect to
the Offer.
Special Factors--Opinion of Financial Advisor to the Special Committee
1. The following sentence is hereby added to the information
set forth under "Special Factors--Opinion of Financial Advisor to the Special
Committee," immediately after the first sentence of the subsection entitled
"Discounted Cash Flow Analysis":
The adjustments used in preparing Case 2 were made at the request of the
Special Committee which requested an alternative analysis based on estimates
that reflected more conservative assumptions relating to operating income
growth.
2. The following subsection entitled "Additional Premium
Analysis" is hereby added to the information set forth under "Special
Factors--Opinion of Financial Advisor to the Special Committee," immediately
prior to the subsequent caption "Special Factors --Opinion of Financial
Advisor to Parent":
Additional Premium Analysis. In connection with the settlement
of five purported class actions against Parent, the Company and the Company's
directors, the Special Committee requested that BT Wolfensohn compare the
premiums paid in the Selected Premium Transactions, based on each target's
closing price 52 weeks prior to the public announcement of the transaction,
for dissemination to the stockholders of the Company for their consideration.
See "The Tender Offer--Certain Litigation." BT Wolfensohn prepared this
comparison and delivered the results to the Special Committee by letter dated
December 31, 1997. The text of the letter is filed as an exhibit to Amendment
No. 2 to the Schedule 13E-3 and may be inspected, copied and obtained in the
manner specified in "The Tender Offer--Certain Information Concerning the
Company."
The premium comparison requested by the Special Committee is
not related to the opinion of BT Wolfensohn dated December 10, 1997 that, as
of such date and based upon and subject to certain matters stated in such
opinion, the consideration to be paid in the Offer and the Merger is fair to
the holders of Shares (other than Parent, its Chief Executive Officer and
Masco Corporation) from a financial point of view, and the premium comparison
does not amend, update or supplement that opinion in any way.
The requested premiums in the Selected Premium Transactions
were as follows: Rexel S.A./Rexel Inc. (publicly announced August 29, 1997;
closing price of $13.88 52 weeks prior to announcement, implying a 62.1%
premium), Anthem Inc./Accordia Inc. (June 2, 1997; $31.75, 26.0%), Samsung
Electronics Co. Ltd./AST Research Inc. (January 30, 1997; $8.00, -32.5%),
Zurich Versicherungs GmbH/Zurich Reinsurance Centre (January 13, 1997; $29.88,
20.5%), Novartis AG/Systemix Inc. (May 27, 1996; $12.25, 59.2%), Berkshire
Hathaway Inc./GEICO Corporation (August 25, 1995; $49.38, 41.8%), COBE
Laboratories/REN Corporation - USA (July 14, 1995; $9.00, 122.2%), BIC S.A./Bic
Corporation (May 15, 1995; $27.13, 49.3%), McCaw Cellular Communications/LIN
Broadcasting (April 7, 1995; $97.30, 33.5%), Club Mediterranee S.A./Club Med
Inc. (April 5, 1995; $25.63, 24.9%), Conseco Inc./CCP Insurance Inc.
(February 27, 1995; $23.75, -2.1%), Arcadian Corp./Arcadian Partners L.P.
(January 18, 1995; $25.13, 15.4%), WMX Technologies Inc./Chemical Waste
Management Inc. (July 28, 1994; $7.63, 16.0%), Rust International Inc./Brand
Companies Inc. (November 13, 1992; $16.63, 12.8%), American Maize-Products
Co./American Fructose Corp. (September 9, 1992; $21.50, 18.6%), Leucadia
National Corporation/PHLCORP Inc. (August 17, 1992; $14.25, 80.9%),
Tele-Communications Inc./United Artists Entertainment (May 1, 1991; $12.75,
27.0%), BHP Holdings (USA) Inc./Hamilton Oil Corporation (February 6, 1991;
$32.25, 24.0%), Murphy Oil Corporation/Ocean Drilling & Exploration (January
3, 1991; $25.88, -25.1%), Fuji Heavy Industries Ltd./Subaru of America Inc.
(January 16, 1990; $6.50, 30.8%), Renault Vehicules Industriels/Mack Trucks
Inc. (July 6, 1990; $11.75, -46.8%) and American Express Company/Shearson
Lehman Brothers Holdings (March 2, 1990; $20.38, -36.7%). Accordingly, the
premiums ranged from -46.8% to 122.2%, with a median of 24.5%.
The above comparison is based on publicly available
information. BT Wolfensohn assumed and relied upon the accuracy and
completeness of such information, and neither assumed responsibility for
independent verification of, nor independently verified, any of such
information. No company, business or transaction used in the above comparison
is identical to the Company or the Offer or Merger.
The closing price of Shares 52 weeks prior to the announcement
of the Offer and the Merger was $24.50, implying a premium of 40.8%.
The Tender Offer--Certain Litigation
The information set forth under "The Tender Offer--Certain
Litigation" is hereby amended and restated to read in its entirety as follows:
Parent, the Company and the Company's directors have been named
as defendants in five purported class actions, each filed on December 11,
1997, purportedly on behalf of the stockholders of the Company in the Chancery
Court of Delaware (the "Actions"). The complaints in the Actions allege
breach of fiduciary duty on the part of the defendants arising out of
execution of the Merger Agreement and seek declaratory and injunctive relief
barring defendants and their counsel, agents, employees and all persons acting
under, in concert with, or for them, from proceeding with, consummating, or
closing the Offer and the Merger, as well as damages in an unspecified amount.
Complaints in the Actions have been served and copies of these complaints are
filed as exhibits to the Schedule 14D-1 and Amendment No. 1 thereto and
incorporated herein by reference, and the foregoing summary of the Actions is
qualified in its entirety by reference thereto. Parent and the Company
believe that all of the Actions are without merit.
On December 31, 1997, the parties to the Actions reached an
agreement-in-principle as set forth in a Memorandum of Understanding, dated
December 31, 1997, between certain law firms on behalf of the plaintiffs in
the Actions, the Company, Parent and certain of the Company's directors (the
"Memorandum of Understanding") concerning a proposed settlement of the
Actions. The Memorandum of Understanding provides for, among other things,
(i) the dissemination to the record holders of the Company of certain
supplemental disclosure materials in the form of this Supplement, (ii) the
certification, for settlement purposes only, of a mandatory non-opt-out class,
(iii) the complete discharge and dismissal with prejudice of any claims that
were, could have been or in the future might have been asserted in the
Actions, (iv) the release of the defendants and others and (v) the defendants'
agreement that they will not oppose an application by plaintiffs' counsel for
an award of fees and expenses not to exceed $250,000. The parties to the
Memorandum of Understanding contemplate submitting filings to the Delaware
Chancery Court seeking certification of a settlement class, final approval of
the terms of the settlement and dismissal with prejudice of the Actions. The
Memorandum of Understanding is filed as an exhibit to Amendment No. 2 to the
Schedule 14D-1 and incorporated herein by reference, and the foregoing summary
of the Memorandum of Understanding is qualified in its entirety by reference
thereto.
Exhibit (g)(6)
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- ------------------------------------------
CHARLENE BLUE, :
Plaintiff, :
:
v. : C.A. No. 16083NC
:
TRIMAS CORPORATION, et al., :
Defendants. :
- ------------------------------------------
GERALD SAPSOWITZ, :
Plaintiff, :
:
v. : C.A. No. 16084NC
:
RICHARD A. MANOOGIAN, et al., :
Defendants. :
- ------------------------------------------
CHARTER CAPITAL CORP., :
Plaintiff, :
:
v. : C.A. No. 16085NC
:
RICHARD A. MANOOGIAN, et al., :
Defendants. :
- ------------------------------------------
ROSEANNE CARUSO, :
Plaintiff, :
:
v. : C.A. No. 16086NC
:
TRIMAS CORPORATION, et al., :
Defendants. :
- ------------------------------------------
BETTY BARSKY, :
Plaintiff, :
:
v. : C.A. No. 16087NC
:
TRIMAS CORPORATION, et al., :
Defendants. :
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding (the "Memorandum") is entered
into by and between the undersigned law firms on behalf of Charlene Blue,
Gerald Sapsowitz, Charter Capital Corp., Roseanne Caruso and Betty Barsky,
plaintiffs in these putative class action litigations ("Plaintiffs"), and
TriMas Corporation ("TriMas") and MascoTech, Inc. ("MascoTech"), and the
individuals named as defendants in such litigations (collectively,
"Defendants").
FACT RECITALS
A. Plaintiffs are and were as of the date of the filing of the
complaints herein the record and beneficial owners of shares of the common
stock of TriMas ("Common Stock").
B. On December 11, 1997, it was announced that the boards of
directors of TriMas and MascoTech had determined that MascoTech's offer to
purchase the outstanding public shares of TriMas for the price of $34.50 per
share was fair and in the interests of both companies' stockholders and that
each company had approved and adopted an Agreement and Plan of Merger dated as
of December 10, 1997 (the "Merger Agreement") pursuant to which TriMas would
be merged with and into MascoTech (the "Proposed Merger"), with MascoTech
surviving the Proposed Merger, assuming that the necessary percentage of
TriMas' stockholders accept the offer of $34.50 per share and tender their
shares.
C. On or about December 11, 1997, putative class actions on
behalf of all shareholders of TriMas were filed in the Court of Chancery in
the State of Delaware styled as Charlene Blue v. TriMas Corporation, et al.,
C.A. No. 16083NC, Gerald Sapsowitz v. Manoogian, et al., C.A. No. 16084NC,
Charter Capital Corp. v. Manoogian, et al., C.A.No. 16085NC, Roseanne Caruso
v. TriMas Corporation, et al., C.A. 16086NC, and Betty Barsky v. TriMas
Corporation, C.A. No. 16087NC (the "Complaints" or the "Actions"). The
Complaints charged MascoTech, TriMas and the individual defendants with
breaching their fiduciary duties in connection with the approval of the Offer
(defined below), the Merger Agreement and the Proposed Merger. The Complaints
sought, among other things, an order preliminarily and permanently enjoining
the Offer and Proposed Merger on the ground that Defendants allegedly did not
properly value the TriMas shares and requiring certain additional disclosures.
D. On December 17, 1997, MascoTech mailed an Offer to Purchase
for Cash All Outstanding Shares of Common Stock of TriMas Corporation at
$34.50 Net Per Share dated December 17, 1997 (the "Offer") to TriMas
stockholders seeking to purchase their shares.
E. Since the filing of the Actions, attorneys for all parties
have conducted arms-length negotiations and have discussed confirmatory
discovery concerning the allegations of the Actions.
F. On December 31, 1997, the parties to the Actions reached an
agreement-in-principle concerning the proposed settlement of the Actions which
will result in the public stockholders of TriMas receiving a supplement to the
Offer containing certain supplemental disclosure materials (the "Supplemental
Disclosure") relating to the Offer and Proposed Merger.
NOW, THEREFORE, the parties hereto agree as follows:
1. Purpose And Scope Of This Memorandum. The purpose
of this Memorandum is to set forth the agreement-in-principle of the
parties to the Actions with respect to the matters addressed below.
However, the obligations of the parties pursuant to this Memorandum are
subject to modifications, if necessary, to ensure that the terms hereof
will not generate any adverse tax, accounting or other consequences to the
parties. Any necessary adjustments will be made on a mutually agreeable
basis so as to preserve the economic, operational and other objectives of
the parties in reaching this agreement-in-principle.
2. Principal Terms Of The Settlement. The following
are the principal terms of the agreement-in-principle to be embodied in
definitive documents to be executed by the appropriate parties (the
"Settlement"):
Supplemental Disclosure. The parties to the Actions
agree that the additional information contained in the Supplemental
Disclosure constitutes fair, adequate and reasonable consideration for the
settlement of all claims which were raised or could have been raised by
Plaintiffs in the Actions and that the disclosure is made in order to
address the claims asserted by Plaintiffs in the Actions. MascoTech will
mail on or before January 5, 1998 to the record holders of TriMas common
stock as of December 11, 1997 the Supplemental Disclosure in substantially
the form attached hereto as Exhibit A which has been approved by all
parties to the Actions.
3. Subject to such reasonable and appropriate
confirmatory discovery as Plaintiffs and Defendants agree, the parties
agree to enter into a settlement agreement (and such other and related
documentation as may be necessary) which will provide for the settlement of
the Actions (the "Settlement Agreement") on, among other terms, the
following conditions:
(a) for certification, for settlement purposes only,
of a mandatory non-opt-out class under Delaware Chancery Court Rule
23(b)(1) and 23 (b)(2) of all record and beneficial holders of TriMas
common stock (other than the Defendants and their affiliates) during the
period beginning on and including December 11, 1997, through and including
the date of the consummation of the Proposed Merger (the "Merger Date"),
including any and all of their respective predecessors, trustees,
executors, administrators, representatives, heirs, transferees, successors
in interest and assigns, immediate and remote, and any person claiming
under any of them, and each of them, excluding Defendants and their
affiliates (the "Class");
(b) for the complete discharge, dismissal with
prejudice, settlement and release of, and an injunction barring, all
claims, demands, rights, actions or causes of action, rights, liabilities,
damages, losses, obligations, judgments, suits, matters and issues of any
kind or nature whatsoever, whether known or unknown, contingent or
absolute, suspected or unsuspected, disclosed or undisclosed, hidden or
concealed, matured or unmatured, that have been, could have been, or in the
future can or might be asserted in the Actions or in any court, tribunal or
proceeding (including, but not limited to, any claims arising under federal
or state law relating to alleged fraud, breach of any duty, negligence,
violations of the federal securities laws or otherwise) by or on behalf of
any member of the Class, whether individual, class, derivative,
representative, legal, equitable or any other type or in any other capacity
(the "Releasing Parties") against Defendants or any of their families,
parent entities, associates, affiliates or subsidiaries and each and all of
their respective past, present or future officers, directors, stockholders,
representatives, employees, attorneys, financial or investment advisors,
including, but not limited to, BT Wolfensohn, a division of BT Alex. Brown
Incorporated, its parents and affiliates, and Salomon Brothers Inc, Smith
Barney Inc., and Salomon Smith Barney, consultants, accountants, attorneys,
investment bankers, commercial bankers, engineers, advisors or agents,
heirs, executors, trustees, general or limited partners or partnerships,
personal representatives, estates, administrators, predecessors, successors
and assigns (collectively, the "Released Persons") which have arisen, could
have arisen, arise now or hereafter arise out of, or relate in any manner
to, the allegations, facts, events, transactions, acts, occurrences,
statements, representations, misrepresentations, omissions or any other
matter, thing or cause whatsoever, or any series thereof, embraced,
involved, set forth or otherwise related, directly or indirectly, to the
Complaints, the Actions, the Merger Agreement, the Proposed Merger, the
Offer, the Supplemental Disclosure and any other material, public filings
or statements (including, but not limited to, public statements) by
Defendants or their representatives, in connection with the Offer, the
Merger Agreement or the Proposed Merger (collectively, the "Settled
Claims"); provided, however, that the Settled Claims shall not include the
right of any members of the Class or Released Persons to enforce the terms
of the Settlement Agreement;
(c) For a release that extends to claims that the
Releasing Parties do not know or suspect to exist at the time of the release,
which if known, might have affected any Releasing Party's decision regarding
the release contained in the Settlement. The Releasing Parties shall be
deemed to relinquish, to the full extent permitted by law, the provision,
rights and benefits of Section 1542 of the California Civil Code which
provides:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor.
In addition, each of the Releasing Parties also shall be deemed to waive
any and all provisions, rights and benefits conferred by any law of any
state or territory of the United States, or principle of common law, which
is similar, comparable or equivalent to California Civil Code Section 1542.
The Releasing Parties acknowledge that they may discover facts in addition
to or different from those that they will know or believe to be true at the
time of the execution of the Stipulation of Settlement with respect to the
subject matter of the release contained therein, but that it is their
intention to fully, finally and forever settle and release any and all
claims released hereby known or unknown, suspected or unsuspected, which
will exist, or heretofore existed, or may thereafter exist, and without
regard to the discovery or existence of such additional or different facts
subsequent to the execution of the Stipulation of Settlement;
(d) that the Defendants have denied, and continue
to deny, that any of them have committed or have threatened to commit any
violations of law or breaches of duty to the Plaintiffs, the members of the
Class or anyone;
(e) that the Defendants are entering into this
Memorandum, and will be entering into the Settlement Agreement, because,
among other reasons, the proposed Settlement would eliminate the burden,
expense, and uncertainty of further litigation; and
(f) subject to the order of the Court, pending final
determination of whether the settlement provided for in the Settlement
Agreement should be approved, that Plaintiffs and all members of the Class, or
any of them, are barred and enjoined from commencing, prosecuting, instigating
or in any way participating in the commencement of any action asserting any
claims, either directly, representatively, derivatively or in any other
capacity, against any of the Defendants or any other persons or entities which
have been or could have been asserted, or which arise out of or relate in any
way to, the Settled Claims, or which arise out of or relate in any way to any
of the transactions or events described in any complaints in the Actions.
4. Cooperation. The Plaintiffs and their counsel will
cooperate with MascoTech and TriMas in all reasonable respects in connection
with the Offer, the Proposed Merger, the Supplemental Disclosure and the other
understandings set forth herein. The parties, through their counsel, (i)
agree to use their best efforts to pursue the Settlement of the Actions in as
expeditious and comprehensive a manner as possible and acknowledge that time
is of the essence; and (ii) agree to cooperate in preparing any and all
necessary papers to define, pursue and effectuate the Settlement.
5. Pending negotiation, execution and Court approval of the
Settlement, the Plaintiffs agree to stay and not initiate any and all other
proceedings in the Actions other than those incident to the Settlement itself,
including, but not limited to the discovery contemplated by this Memorandum.
The parties also agree to use their best efforts to prevent, stay or seek
dismissal of or oppose entry of any interim or final relief in favor of any
TriMas stockholder in any other litigation against any of the parties to this
Memorandum which challenges the Settlement, the Supplemental Disclosure or the
Proposed Merger.
6. The parties to the Actions will use their best efforts to
complete the discovery contemplated by this Memorandum and to agree upon,
execute and present to the Court, on or before February 26, 1998, a formal
Stipulation of Settlement and such other documents as may be necessary and
appropriate to obtain the prompt approval by the Court of the Settlement and a
dismissal with prejudice of the Actions in the manner contemplated herein and
by the Stipulation of Settlement.
7. The Settlement contemplated by this Memorandum will not be
binding upon any party until, and is otherwise subject to:
(a) the completion by Plaintiffs in the Actions of
such documentary discovery and/or oral depositions or interviews as
reasonably are requested and agreed to by the respective party from whom
discovery is requested (the scope of such discovery having been discussed
by counsel prior to the execution of this Memorandum), and the conclusion
of Plaintiffs in the Actions that based on such discovery, the Settlement is
fair, reasonable and adequate;
(b) a formal Stipulation of Settlement (and such
other documentation as may be required to obtain final approval by the
Court of the Settlement) has been executed by counsel for the parties to
the Actions;
(c) the expiration of the Offer to the shareholders
of TriMas, and the consummation of the Proposed Merger;
(d) final approval by the Court of the Settlement
(and the exhaustion of possible appeals, if any) and the dismissal of the
Actions by the Court with prejudice and without awarding costs to any party
(except as provided herein) have been obtained, and entry by the Court of a
final order and judgment containing such release language as is negotiated
by the parties and contained in the Stipulation of Settlement; and
(e) the determination by Defendants in the Actions
that the dismissal of the Actions in accordance with the Stipulation of
Settlement will result in the release with prejudice of the Settled Claims.
8. If the Settlement is not consummated in accordance with
Paragraph 7, this Memorandum shall be null and void and of no force and
effect, and shall not be deemed, used or offered to prejudice in any way the
positions of the parties or any Released Persons with respect to the Actions
or otherwise, nor to entitle any party to the recovery of costs and expenses
incurred to implement this Memorandum (except as provided in paragraph 10
hereof).
9. Following negotiation of the terms of settlement set forth
herein, the parties discussed plaintiff's request for an award of attorneys'
fees. It was agreed that in connection with the Settlement contemplated by
this Memorandum, Plaintiffs' counsel will apply to the Court for an aggregate
award of attorneys' fees and expenses, including fees and expenses for or
payable to any advisor engaged by or for the Plaintiffs, in an amount not to
exceed $250,000 (collectively, the "Fees and Expenses"). Defendants agree
that they will not oppose such application. Subject to the terms and
conditions of this Memorandum and the terms and conditions of the Settlement
Agreement contemplated herein, Defendants shall pay such Fees and Expenses as
may be awarded by the Court in accordance with the terms of this Stipulation.
Except as provided herein, the Released Persons shall bear no other expenses,
costs, damages or fees alleged or incurred by the named Plaintiffs, by any
member of the Class, or by any of their attorneys, experts, advisors, agents
or representatives.
10. Defendants shall be responsible for providing notice of the
Settlement to the members of the Class. Defendants shall bear responsibility
for all reasonable costs and expenses incurred in providing notice of the
Settlement to the members of the Class.
11. The provisions contained in this Memorandum shall not be
deemed a presumption, concession or an admission by any Defendant in the
Actions of any fault, liability or wrongdoing as to any facts or claims
alleged or asserted in the Actions, or any other actions or proceedings, and
shall not be interpreted, construed, deemed, invoked, offered, or received in
evidence or otherwise used by any person in the Actions or in any other action
or proceeding, whether civil, criminal or administrative.
12. This Memorandum constitutes the entire agreement among the
parties with respect to the subject matter hereof, and may not be amended nor
any of its provisions waived except by a writing signed by all of the
signatories hereto.
13. This Memorandum and the Settlement contemplated by it shall
be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to conflict of laws principles.
14. Plaintiffs and their counsel represent and warrant that none
of the Plaintiffs' alleged claims or causes of action against any of the
Defendants have been assigned, encumbered or in any manner transferred in
whole or in part.
15. This Memorandum shall be binding upon, and inure to the
benefit of, the parties to the Actions, the Released Persons and their
respective agents, executors, heirs, successors and assigns.
16. This Memorandum will be executed by counsel for the parties
to the Actions. This Memorandum may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute one and the same instrument. By signing this Memorandum,
Plaintiffs' counsel represent that they have authority to act on behalf of
Plaintiffs in these Actions.
17. The parties to this Memorandum agree (a) to use their best
efforts to achieve the expedited dismissal of the Actions in accordance with
the terms of this Memorandum and (b) to cause the timely occurrence of all
events, transactions or other circumstances described herein.
IN WITNESS WHEREOF, the parties have executed this Memorandum
effective as of the date set forth below.
<TABLE>
<CAPTION>
<S> <C>
Of Counsel: /s/ Norman M. Monhait
-----------------------------------------
Bernstein Liebhard & Lifshitz Norman M. Monhait
274 Madison Avenue Rosenthal, Monhait, Gross & Goddess,
New York, New York 10016 P.A.
Mellon Bank Center, Suite 1401
Schiffrin & Craig Ltd. 919 Market Street
Three Bala Plaza East P. O. Box 1070
Suite 400 Wilmington, Delaware 19899
Bala Cynwyd, PA 19004 (302) 656-4433
Attorneys for Plaintiffs
Bernstein Litowitz Berger & Grossman LLP Charlene Blue, Gerald Sapsowitz, Charter
1285 Avenue of the Americas Capital Corp., Roseanne Caruso and Betty
New York, NY 10019 Barsky
Abbey, Gardy & Squitieri, LLP
212 East 39th Street
New York, NY 10016
Faruqi & Faruqi, LLP
415 Madison Avenue, 21st Floor
New York, NY 10017
Robert C. Susser, P.C.
6 East 43rd Street, Suite 1900
New York, NY 10017-4608
Of Counsel: /s/ Srinivas M. Raju
-----------------------------------------
Davis Polk & Wardwell Allen M. Terrell, Jr.
450 Lexington Avenue Srinivas M. Raju
New York, New York 10017 Richards, Layton & Finger
One Rodney Square
P. O. Box 551
Wilmington, Delaware 19899
(302) 658-6541
Attorneys for Defendants MascoTech, Inc.,
Richard A. Manoogian, Eugene A.
Gargaro, Jr. and John A. Morgan
/s/ Lawrence G. Campbell
-----------------------------------------
Lawrence G. Campbell
Dickinson, Wright, Moon, Van Dusen
& Freeman
One Detroit Center
500 Woodward Avenue
Detroit, MI 48226-3425
Attorneys for Defendants
TriMas Corporation, Herbert S. Amster,
Brian P. Campbell and Helmut F. Stern
</TABLE>
December 31, 1997
