EXHIBIT 99.1
EXCHANGE AND VOTING AGREEMENT
AGREEMENT dated as of August 1, 2000, among Riverside Company LLC, a
Delaware limited liability company ("Merger Subsidiary"), Masco Corporation, a
Delaware corporation (the "Company Shareholder"), Richard and Jane Manoogian
Foundation ("FS"), a Michigan Non-Profit Corporation, and Richard A. Manoogian
("IS" and, together with the Company Shareholder and FS, the "Shareholders").
BACKGROUND
1. Immediately after the execution and delivery of this Agreement, Merger
Subsidiary, a limited liability company formed by Sponsor and certain equity
investors (collectively, "Sponsor Group"), and MascoTech, Inc., a Delaware
corporation (the "Company"), are entering into a Recapitalization Agreement
(the "Recapitalization Agreement"). Capitalized terms used but not defined
herein will have the meanings assigned to them in the Recapitalization
Agreement. The Recapitalization Agreement provides, among other things, for the
merger of Merger Subsidiary with and into the Company, with the Shares being
converted into the right to receive the Merger Consideration, the Class A
Exchanged Shares being converted into the right to receive the Class A Merger
Consideration and the Class B Exchanged Shares of the Company being converted
into the right to receive the Class B Merger Consideration and the Merger
Subsidiary Common Shares being converted into the right to receive the
Surviving Corporation Common Shares.
2. Immediately prior to the Effective Time of the Merger, the Sponsor
Group will subscribe for Merger Subsidiary Common Shares at a price of $16.90
per share pursuant to the Subscription Agreement.
3. As of the date hereof, each Shareholder owns the number of
shares of common stock, par value $1.00 per share, of the Company (the "Company
Common Stock") specified opposite its name under the column "Owned Shares" on
Schedule A. All of such shares, together with any shares of Company Common
Stock acquired of record or beneficially owned by such Shareholders in any
capacity after the date hereof and prior to the Effective Time of the Merger,
whether upon exercise of options, conversion of convertible securities,
purchase, exchange or otherwise, will be referred to herein as "Owned Shares".
For purposes of this Agreement, after the Exchange Date (as defined herein),
all references herein to "Owned Shares" shall refer to Post-Exchange Owned
Shares (as defined herein). Each Shareholder is hereby agreeing, among other
things, as follows: (i) each Continuing Shareholder will exchange prior to the
Merger the Shares specified opposite its name under the column "Continuing
Shareholder Exchange Shares" on Schedule A hereto (the "Continuing Shareholder
Exchange Shares") for Class A Preferred Stock and receive the Class A Merger
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Consideration in exchange therefor at the Effective Time and (ii) the Company
Shareholder will exchange prior to the Merger the Shares specified opposite its
name under the column "Company Shareholder Exchange Shares" on Schedule A
hereto (the "Company Shareholder Exchange Shares") for Class B Preferred Stock
and receive the Class B Merger Consideration in exchange therefor at the
Effective Time. It is understood that, following consummation of the Merger,
references to "Company Common Stock" will mean the shares of Common Stock, par
value $1.00 per share, of the Surviving Corporation.
ARTICLE 1
REPRESENTATIONS AND WARRANTIES
1.1 Representations and Warranties of the Shareholders. Each Shareholder,
severally and not jointly, represents and warrants to Merger Subsidiary as
follows:
(a) Authority; Enforceability. Such Shareholder has the legal capacity (in
the case of Shareholders that are natural persons) and all requisite power and
authority to enter into this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby. This Agreement has been
duly authorized (in the case of Shareholders that are not natural persons),
executed and delivered by such Shareholder and constitutes a valid and binding
obligation of such Shareholder enforceable against it in accordance with its
terms.
(b) No Conflicts. Except for filings required under the applicable
requirements of the 1934 Act, (A) no filing with, and no permit, authorization,
consent or approval of, any Governmental Authority or any other person is
necessary for the execution of this Agreement by such Shareholder and the
consummation by it of the transactions contemplated hereby and (B) the
execution and delivery of this Agreement by such Shareholder, the consummation
of the transactions contemplated hereby and compliance with the terms hereof by
such Shareholder will not conflict with, or result in any violation of, or
default (with or without notice or lapse of time or both) under any provision
of, the certificate of incorporation, by-laws or analogous documents of such
Shareholder (if the Shareholder is not a natural person) or any other agreement
to which such Shareholder is a party, including any voting agreement,
shareholders agreement, voting trust, trust agreement, pledge agreement, loan
or credit agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license, or violate any judgment,
order, notice, decree, statute, law, ordinance, rule or regulation applicable
to such Shareholder or to its property or assets, except, in each case for such
consents required under, and such defaults in respect of, the agreements and
arrangements set forth on Schedule 1.1(c) attached hereto.
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(c) Ownership, Etc. of Shares. As of the date hereof, such Shareholder is
the beneficial owner of the number of shares of Company Common Stock set forth
opposite such Shareholder's name under the column "Owned Shares" on Schedule A.
As of the Exchange Date, such Shareholder will be the beneficial owner of the
number of shares of Company Common Stock, Class A Preferred Stock and Class B
Preferred Stock set forth opposite such Shareholder's name under the column
"Post-Exchange Owned Shares" on Schedule A (the "Post-Exchange Owned Shares").
In the case of IS, the amounts include Company Common Stock which (A)
constitutes Restricted Stock or (B) is subject to Options (collectively,
"Excluded Owned Shares"). None of the Excluded Owned Shares constitutes
Continuing Shareholder Exchange Shares. Each such Shareholder has good and
marketable title to its Owned Shares, free and clear of any encumbrances,
agreements, adverse claims, liens or other arrangements with respect to the
ownership of or the right to dispose of its Owned Shares, except pursuant to
the terms of this Agreement and except for those encumbrances, agreements,
adverse claims, liens or other arrangements in effect on the date hereof and
listed on Schedule 1.1(c) attached hereto. On the date hereof, the Owned Shares
constitute all of the outstanding shares of Company Common Stock owned of
record or beneficially by such Shareholder, except in the case of IS, for any
Shares it may own beneficially by virtue of being a director or trustee of FS.
Such Shareholder has sole power of disposition with respect to all of its Owned
Shares (other than the Excluded Owned Shares) and sole voting power with
respect to the matters set forth in Section 3.1 and sole power to demand
dissenter's or appraisal rights, in each case with respect to all of its Owned
Shares (other than the Excluded Owned Shares), with no restrictions on such
rights, subject to applicable federal securities laws and the terms of this
Agreement. None of such Owned Shares is subject to any voting trust,
stockholders agreement or other agreement, arrangement or restriction with
respect to the voting or transfer of any of the Owned Shares, except as
contemplated by this Agreement, the Recapitalization Agreement, the Stock
Purchase Agreement dated as of October 15, 1996 between the Company Shareholder
and the Company (the "Stock Purchase Agreement"), the Option Plans and
Restricted Stock Plans and the agreements and arrangements in effect on the
date hereof and listed on Schedule 1.1(c).
(d) Access to Information, Etc. Such Shareholder is an "accredited
investor" within the meaning of Regulation D promulgated under the 1934 Act. It
has been provided with a copy of the Recapitalization Agreement and has had an
opportunity to review it. It has been supplied with, or otherwise has had
access to, adequate information and the opportunity to ask questions in order
to make its own independent decision to exchange its Continuing Shareholder
Exchange Shares for the Class A Preferred Stock and receive in the Merger the
Class A Merger Consideration and, in the case of the Company Shareholder, to
exchange its Company Shareholder Exchange Shares for the Class B Preferred
Stock and receive in the Merger the Class B Merger Consideration, or have such
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Shares converted into the right to receive the Merger Consideration in the
Merger as provided in the Recapitalization Agreement. It understands that the
Surviving Corporation Common Shares and, in the case of the Company
Shareholder, the Surviving Corporation Common Shares and the shares of Series A
Preferred Stock that it will receive in the Merger will not have been
registered under the 1933 Act and that the certificates for such shares will
bear an appropriate legend to such effect. It further understands that the
Surviving Corporation Common Shares and, in the case of the Company
Shareholder, the shares of Series A Preferred Stock that it will receive in the
Merger will bear an appropriate legend with respect to the stockholders
agreement referred to in Section 6.1 below.
1.2 Representations and Warranties of Merger Subsidiary. Merger Subsidiary
represents and warrants to each Shareholder as follows:
(a) Authority. It is duly formed, validly existing and in good standing
under the laws of Delaware. It has all requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly authorized, executed and delivered by it and
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms.
(b) No Conflicts; Enforceability. Except for filings required under the
applicable requirements of the 1934 Act, (A) no filing with, and no permit,
authorization, consent or approval of, any Governmental Authority or any other
person is necessary for the execution of this Agreement by Merger Subsidiary
and the consummation by it of the transactions contemplated hereby, and (B) the
execution and delivery of this Agreement by Merger Subsidiary, the consummation
by it of the transactions contemplated hereby and its compliance with the terms
hereof will not conflict with, or result in any violation of, or default (with
or without notice or lapse of time or both) under any provision of, any limited
liability company agreement, or any other agreement to which it is a party,
including any voting agreement, stockholders agreement, voting trust, trust
agreement, pledge agreement, loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise
or license, or violate any judgment, order, notice, decree, statute, law,
ordinance, rule or regulation applicable to Merger Subsidiary or to its
property or assets.
(c) No Business Activities by Merger Subsidiary. Merger Subsidiary was
formed on July 24, 2000 solely for purposes of effecting the transactions
described in this Agreement and the Recapitalization Agreement. Merger
Subsidiary has conducted no business activities, and has incurred no
liabilities, since such formation.
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ARTICLE 2
TRANSFER RESTRICTIONS
2.1 Transfer Restrictions. Subject to the provisions of Section 2.2, each
Shareholder hereby agrees during the term of this Agreement not to (i) directly
or indirectly sell, transfer, pledge, encumber, assign or otherwise dispose of
(including by gift) (collectively, "Transfer"), or enter into any contract,
option or other arrangement or understanding (including any profit sharing
arrangement) with respect to the Transfer of, any of its Owned Shares to any
person other than pursuant to the terms of the Recapitalization Agreement or
this Agreement, (ii) enter into any voting arrangement or understanding other
than under this Agreement, whether by proxy, voting agreement or otherwise,
with respect to any of its Owned Shares, or (iii) take any action that would
make any of its representations or warranties contained herein untrue or
incorrect or have the effect of preventing or impeding such Shareholder from
performing any of its obligations under this Agreement.
2.2 Company Shareholder Exception. Notwithstanding Section 2.1, during the
term of this Agreement, the Company Shareholder may, at its option, Transfer
Shares to one or more transferees (each a "Transferee"); provided that (i) such
Transferee shall be reasonably acceptable to Sponsor, in its sole discretion,
(ii) on or prior to the Effective Time, such Transferee shall enter into and be
subject to the stockholders and registration rights agreement referred to in
Section 4.3 with respect to its Surviving Corporation Common Shares, with
modifications to reflect the extent of the Transferee's investment that are
acceptable to Sponsor, (iii) the Transfer shall not, in the good faith judgment
of Sponsor, based upon advice of its counsel and advisors, jeopardize in any
respect the availability of recapitalization accounting treatment for the
Transactions or violate in any manner applicable securities laws, (iv) the
Transferee shall acquire not less than 10% of the Company Shareholder's Shares
owned on the date hereof, (v) the Transferee shall agree, on or prior to the
date of the Transfer, to be subject to this Agreement and become a party to
this Agreement by amendment in form and substance satisfactory to Sponsor,
which amendment shall specify, among other things, whether the Transferee is
acquiring the Company Shareholder's Continuing Shareholder Exchange Shares or
Company Shareholder Exchange Shares, (vi) all representations and warranties in
this Agreement shall be true and correct and all covenants and all other
provisions of this Agreement shall be complied with as of the date of the
Transfer through the term of this Agreement and (vii) the Transfer shall not
have an adverse effect, in Sponsor's reasonable judgment, on the availability
of financing or the ability of the Company and Merger Subsidiary to complete
the Transactions; provided, a Transfer of not more than 30% of the Company
Shareholder's Shares shall not be deemed to have such an adverse effect.
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ARTICLE 3
SUPPORT OF TRANSACTIONS
3.1 Voting of Total Shares. Under the terms of this Agreement, at any
Company Shareholders' Meeting or at any adjournment thereof or in any other
circumstances upon which any shareholders' vote, consent or other approval is
sought, each of the Shareholders will attend such meeting, in person or by
proxy, and will vote all of its Owned Shares, or otherwise provide requisite
written consent (i) in favor of the Transactions and the adoption and the
approval of the Recapitalization Agreement and the Transactions, (ii) against
any action or agreement that would result in a breach in any material respect
of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Recapitalization Agreement, and (iii)
against any action or agreement that would impede, interfere with, delay or
postpone or that would reasonably be expected to discourage the Transactions,
including, but not limited to, any action referred to in Section 6.01 of the
Recapitalization Agreement.
3.2 No Other Proxies. Each Shareholder will not, unless and until this
Agreement terminates in accordance with Section 3.3 or Section 5.2 hereof,
grant (other than through a proxy solicited by the Board of Directors of the
Company through which the Shareholder will provide voting instructions
consistent with the requirements of Section 3.1 hereof) any proxy or power of
attorney with respect to any of its Owned Shares, deposit any of its Owned
Shares into a voting trust or enter into any agreement (other than this
Agreement), arrangement or understanding with any person, directly or
indirectly, to vote, grant any proxy or give instructions with respect to the
voting of any of its Owned Shares. Each Shareholder further agrees not to
commit or agree to take any action inconsistent with any of the matters covered
in this Article 3.
3.3 Termination. Notwithstanding anything herein to the contrary, at the
sole option of Merger Subsidiary, exercisable at any time, this Article 3 will
automatically terminate and the Shareholders will be free to vote their shares
of Company Common Stock, Class A Preferred Stock or Class B Preferred Stock as
they see fit and take any other any action otherwise prohibited by this Article
3.
ARTICLE 4
COVENANTS
4.1 Exchange of Certain Shares Prior to the Merger. No later than 1
Business Day prior to the scheduled Effective Time and otherwise at such time
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as the Company, Merger Subsidiary and the Shareholders shall agree (such time
and date, the "Exchange Date"), (i) each Continuing Shareholder shall exchange
each of its Continuing Shareholder Exchange Shares for one share of Class A
Preferred Stock and (ii) the Company Shareholder shall exchange each of its
Company Shareholder Exchange Shares for one share of Class B Preferred Stock.
4.2 Appraisal Rights. Each Shareholder hereby irrevocably waives any
rights of appraisal with respect to any of its Owned Shares in connection with
the Merger or rights to dissent from the Merger that such Shareholder may
otherwise have, with respect to the Merger, under the DGCL.
4.3 Stockholders and Registration Rights Agreement. Each
Shareholder agrees that, on or prior to the Effective Time, it will enter into
a stockholders and registration rights agreement with Sponsor or its designees
relating to the Surviving Corporation Common Shares with the terms set forth on
Exhibit A hereto, with such changes as may be reasonably agreed to by the
Shareholders and Sponsor, in a form reasonably satisfactory to such
Shareholders and Sponsor prior to or at the Effective Time.
4.4 Subordinated Notes. The Original Company Shareholder agrees that it
will enter into the Subordinated Loan Agreement in the form annexed hereto as
Exhibit B.
4.5 Termination of Registration Agreement. Merger Subsidiary and the
Original Company Shareholder agree that, upon the Effective Time, the Amended
and Restated Securities Purchase Agreement, dated as of November 23, 1993 and
as further amended, between the Original Company Shareholder and the Company
and the Registration Agreement dated as of March 31, 1993 between the Original
Company Shareholder and the Company will be terminated in its entirety.
4.6 Modification of Corporate Services Agreement and Corporate
Opportunities Agreement. The Original Company Shareholder agrees that, on or
prior to the Effective Time, it will modify the Corporate Services Agreement by
an amendment, to the effect set forth in the Recapitalization Agreement. On or
prior to the Effective Time, the Corporate Opportunities Agreement dated as of
May 1, 1984 between the Company and the Original Company Shareholder will be
modified to apply only to the Original Company Shareholder's home improvement
or building products or services businesses and for a period not to exceed the
later of two years after the Effective Time or six months after corporate
services are no longer required under the Corporate Services Agreement, as
amended at the Effective Time.
4.7 No Conduct of Business Activities by Merger Subsidiary. Merger
Subsidiary agrees that it will not conduct any business activities, and will
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not incur any liabilities, from the date of this Agreement through the time at
which Merger Subsidiary merges with and into the Company. Without limiting the
generality of the foregoing, Merger Subsidiary shall be in existence solely to
effect the transactions described in this Agreement and the Recapitalization
Agreement.
4.8 IS Covenants. (a) IS hereby covenants and agrees with Merger
Subsidiary and the Surviving Corporation that for a period of three years after
the Effective Time so long as IS owns unvested New Restricted Stock, IS (i)
will provide, subject to his other commitments and activities, at times
reasonable and convenient to IS, consulting services to the Surviving
Corporation, upon request from the Surviving Corporation and (ii) will not
personally engage in activities that compete to a substantial extent with any
material lines of business from time to time of the Surviving Corporation. IS
hereby covenants and agrees with Merger Subsidiary and the Surviving
Corporation that failure by IS to comply with the immediately preceding
sentence will result in the forfeiture of IS' unvested New Restricted Stock.
(b) In addition IS hereby covenants and agrees with Merger Subsidiary and
the Surviving Corporation that he will not elect to receive cash upon the
vesting of his New Restricted Stock as provided by Section 2.06 of the
Recapitalization Agreement.
(c) IS hereby covenants and agrees with Merger Subsidiary and the
Surviving Corporation, that he will take all such action with respect to the
liens and other arrangements listed on Schedule 1.1(c) as may be necessary in
order to consummate the transactions in accordance with the Recapitalization
Agreement and this Agreement.
4.9 Further Assurances. Each of the parties hereto agrees that it will,
from time to time, execute and deliver, or cause to be executed and delivered,
such additional or further consents, documents and other instruments as any of
the other parties to this Agreement may reasonably request for the purpose of
effectively carrying out the transactions contemplated by this Agreement.
ARTICLE 5
MISCELLANEOUS
5.1 Assignment. Except as expressly provided in Section 2.2, neither this
Agreement nor any of the rights, interests or obligations hereunder may be
assigned by any of the parties hereto without the prior written consent of the
other parties hereto. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties hereto
and their respective successors and permitted assigns.
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5.2 Termination. This Agreement will terminate, and no party hereto shall
have any rights or obligations hereunder, upon the first to occur of (a) the
Effective Time of the Merger or (b) the termination of the Recapitalization
Agreement in accordance with its terms. Furthermore, this Agreement will
terminate as to the Shareholders if the Recapitalization Agreement is amended
without their consent to reduce the Merger Consideration, Class A Merger
Consideration or Class B Consideration or otherwise reduce the consideration
payable to holders of any Options or Restricted Stock.
5.3 Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, including any written or oral
agreement or understanding, among or between the parties with respect to the
subject matter hereof.
5.4 Amendments. This Agreement may not be amended or compliance with any
provision hereof waived, except by an instrument in writing signed by each of
the parties hereto whose rights or obligations are affected by such amendment
or waiver. Without limiting the generality of the foregoing, this Agreement may
be amended to add to or subtract from the list of Shareholders and/or to modify
the treatment of Shareholders' holdings as set forth on Schedule A, and such
amendment need only be executed by Merger Subsidiary and those Shareholders who
are being added to or subtracted from the list of Shareholders or the treatment
of whose holdings is being modified as set forth on Schedule A.
5.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by telecopy
or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties at the following addresses (or at such other address
to a party as shall be specified by like notice):
if to Merger Subsidiary:
c/o Heartland Industrial Partners, L.P.
320 Park Avenue, 33rd Floor
New York, New York 10022
Attention: David A. Stockman
Facsimile: (212) 981-3535
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with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, NY 10005
Attention: W. Leslie Duffy, Esq.
Jonathan A. Schaffzin, Esq.
Facsimile: (212) 269-5420
if to the Company:
MascoTech, Inc.
21001 Van Born Road
Taylor, Michigan 48180
Attention: Chairman of the Board
General Counsel
Facsimile: (313) 792-6134
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Attention: Leonard Kreynin, Esq.
Facsimile: (212) 450-4800
if to the Company Shareholder:
Masco Corporation
21001 Van Born Road
Taylor, Michigan 48140
Attention: Chairman of the Board and
General Counsel
Facsimile: (313) 792-4107
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with a copy to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, Michigan 48226
Attention: Alan Stuart Schwartz, Esq.
Facsimile: (313) 465-7575
if to IS:
Richard A. Manoogian
c/o Masco Corporation
21001 Van Born Road
Taylor, Michigan 48140
Attention: Richard A. Manoogian
Facsimile: (313) 792-6134
with a copy to:
Bodman Longley & Dahling LLP
100 Renaissance Center
Detroit, Michigan 48243
Attention: David M. Hempstead, Esq.
Facsimile: (313) 393-7579
if to FS:
Richard and Jane Manoogian Foundation
c/o Masco Corporation
21001 Van Born Road
Taylor, Michigan 48140
Attention: Richard A. Manoogian
Facsimile: (313) 792-6134
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with a copy to:
Eugene A. Gargaro, Jr., Esq.
c/o Masco Corp.
21001 Van Born Road
Taylor, Michigan 48140
Facsimile: (313) 792-6289
5.6 Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Wherever the words "include", "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation".
5.7 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement.
5.8 Governing Law. The validity, construction and effect of this Agreement
shall be governed by and construed enforced in accordance with the laws of the
State of Delaware, without giving effect to the principles of conflicts of law
of such state.
5.9 Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that, in addition to any other remedy to which it may be
entitled, at law or in equity, the parties shall be entitled to the remedy of
specific performance of the covenants and agreements contained herein and
injunctive and other equitable relief.
5.10 Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto. Except as provided in the preceding
sentence, nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any rights, benefits or remedies of any
nature whatsoever under or by reason of this Agreement.
5.11 Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
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5.12 Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or unenforceable
in any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
5.13 Definitions; Construction. For purposes of this Agreement:
(a) "Beneficially own" or "beneficial ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant
to any agreement (other than by virtue of this Agreement), arrangement or
understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities beneficially owned by a Person
shall include securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" as described in Section 13(d)(3) of the
Exchange Act.
(b) "Person" shall mean an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity.
(c) In the event of a stock dividend or distribution, or any change in the
Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term
"Shares" shall be deemed to refer to and include the Shares as well as all such
stock dividends and distributions and any shares into which or for which any or
all of the Shares may be changed or exchanged.
5.14 Shareholder Capacity. Notwithstanding anything herein to the
contrary, no person executing this Agreement who is, or becomes during the term
hereof, a director of the Company makes any agreement or understanding herein
in his capacity as such a director, and the agreements set forth herein shall
in no way restrict any director in the exercise of his fiduciary duties as a
director of the Company. Each Shareholder has executed this Agreement solely in
his capacity as the record or beneficial holder of such Shareholder's Owned
Shares.
5.15 Third-Party Beneficiary. The Company is an express third-party
beneficiary of the representations and covenants contained in Articles 1 and 4
hereof and Sponsor is an express third-party beneficiary of Section 2.2.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of Merger Subsidiary and the Shareholders listed
below have caused this Agreement to be duly executed, as of the date first
written above.
RIVERSIDE COMPANY LLC
By: /s/ Daniel P. Tredwell
---------------------------------
Name: Daniel P. Tredwell
Title: Vice President and
Secretary
MASCO CORPORATION
By: /s/ John R. Leekley
---------------------------------
Name: John R. Leekley
Title: Senior Vice President and
General Counsel
RICHARD A. MANOOGIAN
By: /s/ Richard A. Manoogian
---------------------------------
RICHARD AND JANE MANOOGIAN FOUNDATION
By: /s/ Richard A. Manoogian
---------------------------------
Name: Richard A. Manoogian
Title: President
