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Exhibit 99.B
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STOCK PURCHASE AGREEMENT
by and between
MASCOTECH, INC.,
the Seller,
and
CITICORP VENTURE CAPITAL, LTD.,
the Purchaser,
dated as of August 1, 2000
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS.....................................................1
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. PURCHASE AND SALE OF THE SHARES.................................2
SECTION 2.02. PURCHASE PRICE..................................................2
SECTION 2.03. CLOSING.........................................................3
SECTION 2.04. DELIVERIES AT THE CLOSING.......................................3
ARTICLE 3
CONDITIONS TO OBLIGATION TO CLOSE
SECTION 3.01. CONDITIONS TO OBLIGATION OF THE PURCHASER.......................3
SECTION 3.02. CONDITIONS TO OBLIGATION OF THE SELLER..........................4
SECTION 3.03. FAILURE TO SATISFY CERTAIN CONDITIONS...........................5
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE SELLER
SECTION 4.01. DUE AUTHORIZATION...............................................6
SECTION 4.02. TITLE...........................................................6
SECTION 4.03. NO CONSENTS.....................................................6
SECTION 4.04. NO CONFLICT, BREACH, ETC........................................7
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
SECTION 5.01. DUE AUTHORIZATION...............................................8
SECTION 5.02. NO CONSENTS.....................................................8
SECTION 5.03. NO CONFLICT, BREACH, ETC........................................8
SECTION 5.04. PURCHASE ENTIRELY FOR OWN ACCOUNT...............................9
SECTION 5.05. RESTRICTED SECURITIES...........................................9
SECTION 5.06. LEGENDS.........................................................9
SECTION 5.07. ACCREDITED INVESTOR; KNOWLEDGE.................................10
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SECTION 5.08. FINANCING......................................................10
ARTICLE 6
COVENANTS AND AGREEMENTS
SECTION 6.01. DISCLOSURE; PUBLICITY..........................................10
SECTION 6.02. SELLER AGREEMENTS..............................................10
SECTION 6.03. FURTHER ASSURANCES.............................................10
SECTION 6.04. CERTAIN FILINGS................................................11
SECTION 6.05. REPRESENTATIONS AND COVENANTS..................................12
SECTION 6.06. NOTICE.........................................................12
SECTION 6.07. AMERICAN COMMERCIAL PLASTICS...................................12
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. TERMINATION....................................................12
SECTION 7.02. AMENDMENTS; WAIVERS............................................13
SECTION 7.03. SUCCESSORS AND ASSIGNS.........................................13
SECTION 7.04. NOTICES........................................................13
SECTION 7.05. EXPENSES.......................................................14
SECTION 7.06. GOVERNING LAW..................................................15
SECTION 7.07. WAIVER OF JURY TRIAL...........................................15
SECTION 7.08. SEVERABILITY; INTERPRETATION...................................15
SECTION 7.09. HEADINGS.......................................................15
SECTION 7.10. ENTIRE AGREEMENT...............................................15
SECTION 7.11. COUNTERPARTS...................................................15
SECTION 7.12. THIRD-PARTY BENEFICIARIES......................................16
SECTION 7.13. SPECIFIC PERFORMANCE...........................................16
Attachment A -- Form of FIRPTA Certificate
Schedule 2.01 -- Shares to be Purchased
Schedule 2.02 -- Shares Subject to Right of First Refusal or Consent
Schedule 4.02 -- Seller Agreements
Schedule 4.03 -- Consents of Seller
Schedule 4.04 -- Conflicts of Seller
Schedule 5.02 -- Consents of Purchaser
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "AGREEMENT"), dated as of August 1,
2000, by and between MASCOTECH, INC., a Delaware corporation (the "SELLER"), and
CITICORP VENTURE CAPITAL, LTD., a New York corporation (the "PURCHASER").
WHEREAS, the Seller or a wholly-owned subsidiary of Seller owns all
shares, equity interests, membership interests, interests in equity and notes
listed on Schedule 2.01 hereto (collectively, the "SHARES") of the Persons (as
defined herein) listed on Schedule 2.01 hereto (each, a "COMPANY" and,
collectively, the "COMPANIES") and the Purchaser desires to purchase from the
Seller or a wholly-owned subsidiary of Seller and the Seller desires to sell,
and to cause its wholly-owned subsidiaries to sell, to the Purchaser the Shares,
upon the terms and subject to the conditions set forth herein; and
WHEREAS, the transfer of certain of the Shares will require the consent
and/or waiver of certain Persons with respect to provisions in existing
agreements, including those related to right of first refusal and right of first
offer provisions, and the Seller has undertaken to obtain such consents and/or
waivers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein, the Purchaser and the Seller hereby agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS. The following terms as used herein have the
following meanings:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person.
For the purposes of this definition, "control" (including, with its
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of securities, by
contract or otherwise. For purposes of Section 7.03 of this Agreement, to the
extent permitted by the Seller Agreements, as applicable, "Affiliates" of the
Purchaser shall be deemed to include any employees, officers or directors of the
Purchaser or
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any of the Companies and each of their respective Affiliates and any entity in
which the Purchaser or any of its Affiliates, together with any employees,
officers or directors of any of the Purchaser, such Affiliates or such entities,
owns 40% or more of the outstanding voting securities and of which no other
Persons own 40% or more of the outstanding voting securities.
"PERSON" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization.
"RECAPITALIZATION AGREEMENT" means the Recapitalization Agreement dated
as of August 1, 2000, between MascoTech, Inc., a Delaware corporation, and
Riverside Company LLC, a limited liability company organized under the laws of
Delaware ( "MERGER SUBSIDIARY").
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. PURCHASE AND SALE OF THE SHARES. Upon the terms and
subject to the conditions of this Agreement, at the Closing the Seller shall
sell, transfer, convey, assign and deliver to the Purchaser and the Purchaser
shall purchase from the Seller the Shares listed on Schedule 2.01.
SECTION 2.02. PURCHASE PRICE. (a) The Purchaser shall pay to the Seller
at the Closing $125 million for the Shares (the "PURCHASE PRICE"), as adjusted
as provided in Section 2.02(b), by wire transfer of immediately available funds
to an account of the Seller designated in writing by the Seller prior to the
Closing Date.
(b) ADJUSTMENT TO PURCHASE PRICE. In the event Persons have either
exercised rights of first refusal or failed to consent to the transfer of any
Shares and the rights related thereto under the Seller Agreements (as defined
herein) of the Companies set forth in Schedule 2.02, the Purchase Price shall be
reduced by the value of Shares in respect of which such right of first refusal
has been exercised or such Shares have been purchased or in respect of which
such consent has not been given (x) in the case of any Shares for which a right
of first refusal has been exercised, on a dollar-for-dollar basis equal to the
value of consideration received or to be received by the Seller from a Person
exercising its right of first refusal for such Shares and (y) in the case of any
Shares for which consent has not been given, at such value as is determined by
the Purchaser in the notice given pursuant to Section 6.06.
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SECTION 2.03. CLOSING. Upon the terms and subject to the conditions set
forth in this Agreement, the sale and purchase of the Shares contemplated by
this Agreement shall take place at a closing (the "CLOSING") to be held
immediately prior to or simultaneously with the closing of the merger (the
"RECAPITALIZATION") of Merger Subsidiary with and into Seller under the
Recapitalization Agreement at the offices of Cahill Gordon & Reindel, 80 Pine
Street, New York, New York 10005, or at such other place or time as the
Purchaser and the Seller may mutually agree. The date upon which the Closing
occurs is herein referred to as the "CLOSING DATE."
SECTION 2.04. DELIVERIES AT THE CLOSING. Subject to Section 3.03, at
the Closing, (i) the Seller shall deliver to the Purchaser the certificate
referred to in Section 3.01 below and a FIRPTA Certificate in the form of
Attachment A hereto, (ii) the Purchaser shall deliver to the Seller the
certificate referred to in Section 3.02 below, (iii) the Seller shall deliver to
the Purchaser stock certificates representing the Shares which are certificated,
registered in its name or the name of its wholly-owned subsidiary, as
appropriate, duly endorsed in blank or accompanied by duly executed assignment
documents, together with an assignment (to the extent permitted) of all Seller's
rights under the Seller Agreements and if Shares are uncertificated, shall
deliver documents necessary to effect the transfer of such uncertificated
Shares, in each case only with respect to Shares actually purchased by
Purchaser, and (iv) the Purchaser shall deliver to the Seller the Purchase Price
in accordance with Section 2.02 above.
ARTICLE 3
CONDITIONS TO OBLIGATION TO CLOSE
SECTION 3.01. CONDITIONS TO OBLIGATION OF THE PURCHASER. Subject to
Section 3.03, the obligation of the Purchaser to consummate the transactions to
be performed by it in connection with the Closing is subject to satisfaction of
the following conditions:
(a) the representations and warranties set forth in Article 4 below
shall be true and correct in all material respects at and as of the Closing
Date;
(b) the Seller shall have performed in all material respects all
covenants and agreements contained in this Agreement that are required to be
performed by Seller on or before the Closing;
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(c) there shall not be any injunction, judgment, order or decree in
effect preventing the consummation of any of the transactions contemplated by
this Agreement;
(d) the Seller shall have delivered to the Purchaser a certificate to
the effect that each of the conditions specified above in Sections 3.01(a),
3.01(b) and 3.01(c) (as it relates to the Seller) is satisfied in all material
respects;
(e) any applicable waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), relating to the
transactions contemplated hereby shall have expired or been terminated and all
other governmental approvals filed pursuant to Section 6.04 necessary to be
obtained prior to Closing shall have been obtained.
The Purchaser may waive the conditions specified in this Section
3.01(a) through 3.01(d) if it executes a writing so stating at or prior to the
Closing; PROVIDED, HOWEVER, that Purchaser shall not be deemed to have waived
any such conditions to the extent that Section 3.03 is applicable as to any of
the Shares.
SECTION 3.02. CONDITIONS TO OBLIGATION OF THE SELLER. The obligation of
the Seller to consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth in Article 5 below
shall be true and correct in all material respects at and as of the Closing
Date;
(b) the Purchaser shall have performed in all material respects all
covenants and agreements contained in this Agreement that are required to be
performed by Purchaser on or before the Closing;
(c) there shall not be any injunction, judgment, order or decree in
effect preventing the consummation of any of the transactions contemplated by
this Agreement;
(d) the Purchaser shall have delivered to the Seller a certificate to
the effect that each of the conditions specified above in Sections 3.02(a),
3.02(b) and 3.02(c) (as it relates to the Purchaser) is satisfied in all
material respects;
(e) all conditions to the Recapitalization shall have been satisfied
or waived in accordance with the terms of the Recapitalization Agreement, other
than conditions to the extent related to the sale and purchase of the Shares as
contemplated by this Agreement;
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(f) Purchaser shall have delivered to Seller the Purchase Price in
accordance with Section 2.02; and
(g) any applicable waiting period under the HSR Act relating to the
transactions contemplated hereby shall have expired or been terminated and all
other governmental approvals filed pursuant to Section 6.04 necessary to be
obtained prior to Closing shall have been obtained.
The Seller may waive the conditions specified in this Section 3.02(a)
through 3.02(f) if it executes a writing so stating at or prior to the Closing
and has received a written consent to such waiver from Merger Subsidiary.
SECTION 3.03. FAILURE TO SATISFY CERTAIN CONDITIONS. Notwithstanding
the provisions of Section 3.01 hereof, in the event any of the conditions set
forth in Section 3.01 are not satisfied or waived such that the Shares (or any
part thereof) set forth on Schedule 2.02 may not be transferred to the Purchaser
on the Closing in accordance with this Agreement, the Purchaser shall
nonetheless be obligated to pay on the Closing Date the Purchase Price less the
value of the Shares which may not be transferred to the Purchaser. The Seller or
the Merger Subsidiary, as applicable, shall be obligated to sell and the
Purchaser shall be obligated to purchase all Shares not purchased at the Closing
within 2 business days after such Shares become transferable to the Purchaser
for the price determined as specified in Section 2.02(b) at a place and time
mutually acceptable to the Seller and the Purchaser; PROVIDED, HOWEVER, that the
Seller's and the Purchaser's obligation shall terminate if any such sale and
purchase is not consummated by the first day of the seventh month immediately
following the Closing. At the closing of any such sale, each of the Seller and
the Purchaser shall deliver the documents required under Section 2.04 and such
closing shall be conditioned on fulfillment of the conditions specified in
Sections 3.01 and 3.02 with respect to the Shares to be transferred.
Notwithstanding the foregoing, if any Person exercises its right of first
refusal for any Shares pursuant to a Seller Agreement or refuses to consent to
such transfer in accordance with the Seller Agreements, all rights and
obligations of the Seller and the Purchaser contained in this Agreement with
respect to such Shares shall terminate immediately upon the purchase by such
Person of the Shares with respect to which it has exercised its right of first
refusal or upon the exercise of such right to refuse consent to the transfer of
such Shares and the rights related thereto under the Seller Agreements.
Notwithstanding the foregoing, in the case of the Shares comprised of shares of
common stock of Tower Automotive, Inc., if such Shares cannot be transferred
together with an assignment of the rights under the Seller Agreement related
thereto, they shall be deemed transferable under this Section 3.03 if and only
to the extent they have been registered for re-sale by the Purchaser under the
Securities Act.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser that:
SECTION 4.01. DUE AUTHORIZATION. The Seller is duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization
and has all requisite power and authority to own its properties and conduct its
business as now being conducted. The Seller has all requisite corporate power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement has been duly and validly authorized,
executed and delivered by the Seller and constitutes a valid and binding
obligation of the Seller, enforceable against the Seller in accordance with its
terms, except that the enforcement hereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general principles of
equity and the discretion of the court before which any proceeding therefor may
be brought.
SECTION 4.02. TITLE. The Seller or a wholly-owned subsidiary of the
Seller is the record and beneficial owner of the Shares as listed on Schedule
2.01 and each such Person has, and at the Closing will have, the absolute right,
power and capacity to sell, assign, transfer and deliver the Shares to the
Purchaser free and clear of any liens, charges, encumbrances or restrictions
(other than restrictions on transfer imposed by the Securities Act and
applicable state securities or "Blue Sky" laws and other than restrictions (the
"OTHER RESTRICTIONS") existing by virtue of the agreements set forth on Schedule
4.02 hereto (the "SELLER AGREEMENTS")), and, upon delivery and payment for the
Shares in accordance with the terms of this Agreement, the Purchaser will
acquire valid and marketable title to the Shares, free and clear of all liens,
charges, encumbrances or restrictions (other than those created by the
Purchaser, those existing by virtue of the Other Restrictions and restrictions
on transfer imposed by the Securities Act and applicable state securities or
"Blue Sky" laws). All the Shares (other than the Shares of Companies listed
under headings (a), (b), and (c) of Schedule 2.01) were duly authorized and
validly issued, are outstanding and fully paid and non-assessable and were
issued free and clear of any pre-emptive rights. Other than this Agreement, the
agreement referred to in Section 6.07, all agreements pursuant to which the
Shares were acquired, and the Recapitalization Agreement, the Seller Agreements
constitute the sole and exclusive agreements to which the Seller or any of its
wholly-owned subsidiaries which are transferring Shares are party to with
respect to the Shares.
SECTION 4.03. NO CONSENTS. No consent, approval, authorization or order
of, or filing or registration with, any court or governmental agency or body or
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third party is required for the execution of this Agreement by the Seller, the
sale by the Seller or its wholly-owned subsidiaries of the Shares to the
Purchaser or the consummation by the Seller of the other transactions
contemplated hereby, except as are listed on Schedule 4.03 hereto, as may be
required under applicable state securities or "Blue Sky" laws and as may be
required under the HSR Act or by any other governmental authorities in
connection with the purchase of the Shares by the Purchaser.
SECTION 4.04. NO CONFLICT, BREACH, ETC. The execution, delivery and
performance by the Seller of this Agreement and the consummation by the Seller
and its wholly-owned subsidiaries transferring the Shares of the transactions
contemplated hereby (including, without limitation, the sale of the Shares to
the Purchaser) will not conflict with or constitute or result in a breach of or
a default under (or an event that with notice or passage of time or both would
constitute or result in a breach of or a default under) or violation of or
result in any Person having the right to terminate, modify or accelerate any of
(i) the terms or provisions of any indenture, mortgage, deed of trust, loan
agreement (other than the loan agreements, listed on Schedule 4.04, each of
which will be terminated upon the consummation of the Recapitalization), note,
lease, license, stockholders agreement, or other agreement, instrument or
contract to which the Seller, any wholly-owned subsidiary which is transferring
the Shares or, to the knowledge of the Seller, any Company (other than Companies
listed under headings (a), (b) and (c) of Schedule 2.01) is a party or by which
any such Person is bound or to which any of such Person's properties or assets
is subject, (ii) the certificate of incorporation or bylaws of the Seller or any
wholly-owned subsidiary which is transferring the Shares or, to the knowledge of
the Seller, any Company (other than Companies listed under headings (a), (b) and
(c) of Schedule 2.01), or (iii) (assuming compliance with all applicable state
securities or "Blue Sky" laws and the HSR Act and assuming the accuracy of the
representations and warranties of the Purchaser in Article 5 below) any statute,
judgment, decree, order, rule or regulation applicable to the Seller or any
wholly-owned subsidiary which is transferring the Shares or, to the knowledge of
the Seller, any Company (other than Companies listed under headings (a), (b) and
(c) of Schedule 2.01) or any of their respective properties or assets, except,
in the case of clause (i), for consents or waivers required under the Seller
Agreements which consents or waivers Seller will use reasonable best efforts to
obtain prior to the Closing. Neither the Seller nor any of its wholly-owned
subsidiaries has any obligation to purchase any additional Shares of Series A
Redeemable Preferred Stock of Qualitor, Inc. and none of the shares of Common
Stock of, or any of the Warrants for shares of Common Stock, of Qualitor, Inc.
owned by the Seller or any of its wholly-owned subsidiaries are subject to an
option or right of redemption in favor of Qualitor, Inc.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller that:
SECTION 5.01. DUE AUTHORIZATION. The Purchaser is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has all requisite corporate power and authority to own its
properties and conduct its business as now being conducted. The Purchaser has
all requisite power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. This Agreement has been duly and validly
authorized, executed and delivered by the Purchaser and constitutes a valid and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except that the enforcement hereof may be subject to
(i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought.
SECTION 5.02. NO CONSENTS. No consent, approval, authorization or order
of, or filing or registration with, any court or governmental agency or body, or
third party is required for the execution of this Agreement by the Purchaser,
the purchase of the Shares by the Purchaser or the consummation by the Purchaser
of the other transactions contemplated hereby, except as are listed on Schedule
5.02 hereto, as may be required under applicable state securities or "Blue Sky"
laws and as may be required under the HSR Act or by other governmental
authorities in connection with the purchase of the Shares by the Purchaser.
SECTION 5.03. NO CONFLICT, BREACH, ETC. The execution, delivery and
performance by the Purchaser of this Agreement and the consummation by the
Purchaser of the transactions contemplated hereby (including, without
limitation, the purchase of the Shares by the Purchaser) will not conflict with
or constitute or result in a breach of or a default under (or an event that with
notice or passage of time or both would constitute or result in a breach of or a
default under) or violation of any of (i) the terms or provisions of any
indenture, mortgage, deed of trust, loan agreement, note, lease, license,
stockholders agreement or other agreement, instrument or contract to which the
Purchaser is a party or by which Purchaser is bound or to which any of
Purchaser's properties or assets is subject, (ii) the certificate of
incorporation or bylaws of the Purchaser, or (iii) (assuming compliance with all
applicable state securities or "Blue Sky" laws and the HSR Act) any statute,
judgment, decree, order, rule or regulation applicable to the Purchaser or any
of its properties or assets except, in the case of clause (i), for consents or
waivers required under the Seller Agreements relating to MSX
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International, Inc. which consents or waivers Purchaser will use reasonable best
efforts to obtain prior to Closing.
SECTION 5.04. PURCHASE ENTIRELY FOR OWN ACCOUNT. The Shares to be
acquired by the Purchaser will be acquired for investment for the Purchaser's
own account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof. The Purchaser has no present intention of
selling, granting any participation in or otherwise distributing the Shares. The
Purchaser does not presently have any contract, undertaking, agreement or
arrangement with any Person to sell, transfer or grant participations to such
Person or to any third Person, with respect to any of the Shares.
SECTION 5.05. RESTRICTED SECURITIES. The Purchaser understands that the
transfer of the Shares by the Seller or a transferring subsidiary has not been
registered under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (the "SECURITIES ACT") or any other
applicable securities laws. The sale of the Shares hereunder is being
consummated in reliance on an exemption from the registration provisions of the
Securities Act which depends upon, among other things, the Purchaser's
representations as expressed in Sections 5.04 and 5.07. The Purchaser
understands that it must hold the Shares indefinitely unless the sale of the
Shares is registered under the Securities Act and qualified by state
authorities, or an exemption from such registration and qualification
requirements is available and that any such sale is subject to the Seller
Agreements, as applicable. The Purchaser acknowledges that the Companies have no
obligation to register or qualify the Shares for resale, other than as provided
in the Seller Agreements. The Purchaser further acknowledges that there is no
assurance that any exemption from registration or qualification will be
available for resales of the Shares and that, even if available, it may be
conditioned on various requirements including, but not limited to, the time and
manner of sale, the holding period for the Shares, agreements then in effect
with the Companies and/or other stockholders of the Companies with respect to
the Shares and on requirements relating to each of the Companies which are
outside of the Purchaser's control, and which the Companies are under no
obligation and may not be able to satisfy.
SECTION 5.06. LEGENDS. The Purchaser understands that each of the
Shares will bear, so long as appropriate, those legends required by the Seller
Agreements, the Securities Act and other applicable state securities laws. The
Purchaser acknowledges that each of the Companies shall be entitled to make a
notation on its records and give instructions to any transfer agent of the
Shares in order to implement the restrictions on transfer set forth in the
Seller Agreements or required by law.
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SECTION 5.07. ACCREDITED INVESTOR; KNOWLEDGE. The Purchaser is an
accredited investor as defined in Rule 501 of Regulation D promulgated under the
Securities Act. The Purchaser was not organized solely for the purpose of
acquiring the Shares and has such knowledge, sophistication and business
experience so as to be capable of evaluating the merits and risks of an
investment in the Shares. The Purchaser has sufficient experience in investments
and knowledge about the Companies' respective management, businesses, operations
and financial affairs and about the Shares so as to be capable of evaluating the
merits and risks of its investment in the Shares. The Purchaser represents that
it is able to bear the economic risk of its investment in the Shares
indefinitely, including a possible total loss of investment.
SECTION 5.08. FINANCING. Purchaser has, or will have prior to the
Closing, sufficient cash, available lines of credit or other sources of
immediately available funds to enable it to make payment of the Purchase Price
as required hereunder and all related fees and expenses.
ARTICLE 6
COVENANTS AND AGREEMENTS
SECTION 6.01. DISCLOSURE; PUBLICITY. Neither party hereto shall, and
each party hereto shall cause its representatives and agents not to, make any
public announcement, statement or press release with respect to this Agreement
or the transactions contemplated hereby or otherwise disclose to any Person
(other than its respective officers, directors, employees, agents, investors,
financial representatives and attorneys, in each case on a need to know basis)
the existence, terms, conditions, content or effect of this Agreement, in each
case, without the prior consent of the other party unless disclosure is required
by applicable law or governmental regulation, or by order of a court of
competent jurisdiction.
SECTION 6.02. SELLER AGREEMENTS. Seller agrees that it shall promptly
deliver notices to the extent permitted by the Seller Agreements and take all
other action required under the Seller Agreements in order to consummate the
sale of the Shares to the Purchaser and to use reasonable best efforts to obtain
a waiver or an exercise of the other parties' rights of first refusal under the
Seller Agreements on or prior to the Closing Date.
SECTION 6.03. FURTHER ASSURANCES. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to use its reasonable best
efforts to take, or cause to be taken, all action, and to do, or cause to be
done, all things necessary or desirable under applicable legal requirements, to
consummate
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and make effective the transactions contemplated by this Agreement, including,
without limitation, obtaining the consents listed on Schedules 4.02 and 5.02
hereto and the assignments of the Seller Agreements; PROVIDED, HOWEVER, that
neither the Seller nor the Purchaser shall be required to compensate any third
party to obtain any such consent or approval (other than customary filing fees).
If at any time after the Closing any further action is necessary or desirable to
carry out the purposes of this Agreement, the parties hereto shall use their
reasonable best efforts to take or cause to be taken all such necessary or
desirable action and execute, and deliver and file, or cause to be executed,
delivered and filed, all necessary or desirable documentation.
SECTION 6.04. CERTAIN FILINGS. Purchaser agrees to use reasonable best
efforts to file within 10 Business Days after the date hereof a Notification and
Report Form for Certain Mergers and Acquisitions ("HSR NOTIFICATION FORM") with
the Federal Trade Commission ("FTC") and the Department of Justice ("DOJ") in
connection with the acquisition of the Shares other than those listed on
Schedule 2.02 and of MSX International, Inc., as appropriate. Seller and
Purchaser shall cooperate with one another in taking any actions or making any
filings required by the HSR Act and seeking timely to, and shall use their
reasonable best efforts to, obtain early termination or expiration of the
applicable waiting period. Seller and Purchaser each agree to use their
reasonable best efforts to promptly identify any other governmental filings or
actions with respect to any other governmental authority necessary to consummate
the transactions contemplated by this Agreement and to make such filings or take
such actions within 10 Business Days of such identification and to obtain early
termination or expiration of any applicable waiting period or early or expedited
approval, as applicable. Seller shall use its commercially reasonable efforts to
cause each Company to cooperate with the Purchaser and the Seller in their
making, and to take all actions and to make, all filings required by the HSR Act
or any other governmental authority necessary to consummate the transactions
contemplated by this Agreement and to obtain early termination or expiration of
any applicable waiting period or early or expedited approval, as applicable, of
any such filings. Notwithstanding the foregoing, with respect to the Shares
comprised of MSX International, Inc. and those listed on Schedule 2.02, neither
the Purchaser nor the Seller shall have any obligation to make or to cause to be
made any filings required under this Section 6.04 until, in the case of MSX
International, Inc., in the case of any filing required by the HSR Act, 10
Business Days after the date of the Purchaser's notice given pursuant to Section
6.06 hereof, and in the case of all other filings, as otherwise specified herein
and, in the case of the Shares listed on Schedule 2.02, in the case of any
filing required by the HSR Act, 10 Business Days after the applicable Person's
consent to the transfer of such Shares and the rights related thereto under the
Seller Agreements or the applicable Person's failure to purchase Shares with
respect to which it has exercised a right of first
11
<PAGE>
refusal, as appropriate, and in the case of all other filings, as otherwise
specified herein. Notwithstanding the foregoing, within 10 Business Days after a
written request (which request will not be prior to the delivery of the notice
under Section 6.06) by Seller, Purchaser agrees to make a filing on HSR
Notification Form with the FTC and the DOJ with respect to the Shares listed on
Schedule 2.02 specified in such written request and Seller agrees to reimburse
Purchaser for any filing fees paid by Purchaser with respect to such HSR
Notification Form filed upon the request of Seller in the event Purchaser is not
able to purchase the Shares which are the subject of such HSR Notification Form
filed upon the request of Seller. "Business Day" means a day that is not a
Saturday, Sunday or other day on which banks are required or authorized by law
to be closed in the City of New York.
SECTION 6.05. REPRESENTATIONS AND COVENANTS. Prior to Closing, each of
the Seller and the Purchaser will not engage in any practice, take any action,
fail to take any action or enter into any transaction which would cause any
representation or warranty made by it in this Agreement to be untrue in any
material respect or result in the breach of any material covenant made by it in
this Agreement.
SECTION 6.06. NOTICE. No later than the close of business on the tenth
Business Days after the date hereof, the Purchaser shall provide the Seller with
a notice containing a good faith bona fide offer indicating the terms and the
price at which Purchaser will offer to purchase the Shares listed on Schedule
2.02.
SECTION 6.07. AMERICAN COMMERCIAL PLASTICS. Seller agrees to pay over
to Purchaser all payments received by Seller pursuant to Section 3.00 of the
Stock Purchase Agreement, dated as of March 23, 1999, among MascoTech, Inc.,
MascoTech Coatings, Inc. and American Commercial Plastics, Inc. no later than 30
days after receipt thereof.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. TERMINATION. Seller may terminate this Agreement and
Seller may abandon the transactions contemplated hereby in the event the
Recapitalization Agreement is terminated for any reason in accordance with its
terms by giving Purchaser written notice of termination which shall be effective
immediately. Otherwise this Agreement may be terminated only with the prior
written consent of Seller and Purchaser.
12
<PAGE>
SECTION 7.02. AMENDMENTS; WAIVERS. The provisions of this Agreement may
be modified or amended, and waivers and consents to the performance and
observance of the terms hereof may be given, only by written instrument executed
and delivered by each of the parties hereto in the event of an amendment and by
the party against whom the waiver is to be effective in the event of a waiver.
The failure at any time to require performance of any provision hereof shall in
no way affect the full right to require such performance at any time thereafter
(unless performance thereof has been waived in accordance with the terms hereof
for all purposes and at all times by the party to whom the benefit of such
performance is to be rendered). The waiver by any party to this Agreement of a
breach of any provision hereof shall not be taken or held to be a waiver of any
succeeding breach of such provision or any other provision or as a waiver of the
provision itself.
SECTION 7.03. SUCCESSORS AND ASSIGNS. None of the rights or obligations
under this Agreement shall be assignable without the written consent of the
other party except that (i) Purchaser may transfer or assign, in whole or from
time to time in part, to one or more of its Affiliates, the right to purchase
all or a portion of the Shares, but no such transfer or assignment will relieve
Purchaser of its obligations hereunder and (ii) Seller may transfer or assign
this Agreement together with the Shares (in whole or in part) to an Affiliate or
to Masco Corporation, a Delaware corporation, as long as Purchaser's rights
hereunder are not adversely affected. This Agreement and all covenants and
agreements contained in this Agreement by or on behalf of the parties hereto
shall bind, and inure to the benefit of, the respective successors and permitted
assigns of the parties hereto.
SECTION 7.04. NOTICES. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent, by registered, certified or express mail, reputable overnight
courier service or facsimile and shall be deemed given when so delivered by hand
or if mailed, three days after mailing (one business day in the case of express
mail or overnight courier service) or if sent by facsimile, upon receipt of
written confirmation, as follows:
if to Seller, to:
MascoTech, Inc.
21001 Van Born Road
Taylor, Michigan 48180
Attention: President
Fax: (313) 792-6157
13
<PAGE>
with a copy to:
MascoTech, Inc.
21001 Van Born Road
Taylor, Michigan 48180
Attention: General Counsel
Fax: (313) 792-6940
and
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: Leonard Kreynin
Fax: (212) 450-4800
and
Dykema Gossett PLLC
400 Renaissance Center
Detroit, MI 48243
Attention: Fredrick M. Miller
Fax: (313) 568-6832
if to Purchaser, to:
Citicorp Venture Capital, Ltd.
399 Park Avenue
14th Floor
New York, New York 10043
Attention: Michael A. Delaney
Fax: (212) 793-2425
with a copy to:
Morgan Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178-0060
Attention: Robert G. Robison
Fax: (212) 309-6273
SECTION 7.05. EXPENSES. Except as specified in Sections 6.04 and 6.07,
each party hereto will bear its own costs, fees and expenses incurred in
connection
14
<PAGE>
with the transactions contemplated hereby, including, without limitation, legal
and accounting fees and expenses.
SECTION 7.06. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
SECTION 7.07. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 7.08. SEVERABILITY; INTERPRETATION. If any provision in this
Agreement is deemed to be or becomes invalid, illegal, void or unenforceable
under any law that is applicable hereto, (i) such provision will be deemed
amended to conform to applicable laws so as to be valid and enforceable or, if
it cannot be so amended without materially altering the intention of the parties
hereto, it will be deleted, with effect from the date of such agreement or such
earlier date as the parties hereto may agree and (ii) the validity, legality and
enforceability of the remaining provisions of this Agreement shall not be
impaired or affected in any way.
SECTION 7.09. HEADINGS. Section headings herein are for convenience
only and shall not affect the construction hereof.
SECTION 7.10. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto relating to the subject matter hereof and
supersedes any and all prior oral or written agreements, representations or
warranties, contracts, understandings, correspondence, conversations and
memoranda, whether written or oral, between the parties hereto, or between or
among any agents, representatives, Affiliates, predecessors in interest or
successors in interest, with respect to the subject matter hereof.
SECTION 7.11. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each of the parties and delivered to the other party.
15
<PAGE>
SECTION 7.12. THIRD-PARTY BENEFICIARIES. This Agreement is intended for
the benefit of the parties hereto and is not intended to confer any benefit upon
any other person or entity or infringe upon any rights or remedies.
SECTION 7.13. SPECIFIC PERFORMANCE. Each party shall be entitled to
enforce all of their rights contained herein specifically (without posting a
bond or other security), to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights granted by law.
16
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement as of the date first above written.
MASCOTECH, INC.
By: /s/ David B. Liner
---------------------------------
Name: David B. Liner
Title: Vice President
CITICORP VENTURE CAPITAL, LTD.
By: /s/ Michael A. Delaney
---------------------------------
Name: Michael A. Delaney
Title: Managing Director
17
<PAGE>
ATTACHMENT A
CERTIFICATION OF NON-FOREIGN STATUS FOR ENTITIES
(As contemplated by Treasury Regulation
Section 1.1445-2(b))
Section 1445 of the Internal Revenue Code of 1986, as amended,
provides that a buyer of a U.S. real property interest must withhold tax if the
seller is a foreign person. To inform the buyer that withholding of tax is not
required upon the disposition of a U.S. real property interest (if shares of
[target] are found to constitute such an interest) by
, the undersigned hereby certifies on behalf of such entity:
(name of entity)
1._________________ is not a foreign corporation, foreign
(name of entity)
partnership, foreign trust, or foreign estate (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations);
2._________________'s U.S. employer identification number is
(name of entity)
_________________; and
(EIC)
3._________________'s office address within the United States
(name of entity)
is
-----------------------------------------
(street)
-----------------------------------------
(city, state, zip code)
_________________ understands that this certification must be
(name)
disclosed to the Internal Revenue Service by the buyer and that any false
statement I have made here could be punished by fine, imprisonment, or both.
<PAGE>
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct,
and complete and I further declare that I have
authority to sign this document on behalf of __________________________________.
(name of entity)
___________________________________
Name of Entity
___________________________________
Signature
___________________________________
Title
Date: _______________
2
<PAGE>
SCHEDULE 2.01
<TABLE>
<CAPTION>
COMPANY SHARES TO BE PURCHASED
------- ----------------------
<S> <C>
(a) Titan International, Inc. 3,315,852 shares of Common Stock
(b) Delco Remy International, Inc. 3,025,391 shares of Common Stock
(c) MSX International, Inc. 43,752 shares of Class A
Common Stock 180,000
shares of Series A
Preferred Stock
(d) Advanced Accessories Systems, LLC 1,500 Member Units
(formerly known as AAS Holdings, LLC)
(e) Tower Automotive, Inc. 400,000 shares of Common Stock
(f) Innovative Coating Technologies, Inc. Senior Subordinated Note of American
(formerly known as MascoTech Coatings, Inc.) Commercial Plastics, Inc. aggregating
$6.4 million (including deferred
interest)
27.20 shares of Common Stock
(g) Qualitor, Inc. 890,000 shares of Series A Redeemable
Preferred Stock
300,000 shares of Common Stock
Warrant No. 2 to purchase 107,143 shares
of Common Stock
Warrant No. 3 to purchase 65,839 shares
of Common Stock
Warrant No. 4 to purchase 25,643 shares
of Common Stock
</TABLE>
<PAGE>
SCHEDULE 2.02
<TABLE>
<CAPTION>
COMPANY SHARES TO BE PURCHASED
------- ----------------------
<S> <C>
Advanced Accessories Systems, LLC 1,500 Member Units
(formerly known as AAS Holdings, LLC)
Innovative Coating Technologies, Inc. 27.20 shares of Common Stock
(formerly known as MascoTech Coatings, Inc.)
Qualitor, Inc. 300,000 shares of Common Stock
Warrant No. 2 to purchase 107,143
shares of Common Stock
Warrant No. 3 to purchase 65,839
shares of Common Stock
Warrant No. 4 to purchase 25,643
shares of Common Stock
</TABLE>
<PAGE>
SCHEDULE 4.02
SELLER AGREEMENTS
Amended and Restated Members' Agreement dated as of September 30, 1999 among
Advanced Accessory Systems, LLC (F/K/A AAS Holdings, LLC) and the members
thereof
Third Amended and Restated Operating Agreement dated as of September 30, 1999 of
Advanced Accessory Systems, LLC (F/K/A AAS Holdings, LLC), and the members
thereof
Shareholders Agreement dated March 23, 1999 by and among MascoTech, Inc.,
American Commercial Plastics, Inc., and Innovative Coating Technologies, Inc.
Letter Agreement dated March 23, 1999 by and among American Commercial
Holdings, Inc., American Commercial Plastics, Inc., MascoTech Coating
Technologies, Inc. and MascoTech, Inc. regarding Registration Rights Agreement
Amended and Restated Securities Purchase and Holders Agreement, dated December
22, 1997, by and among Delco Remy International, Inc., Citicorp Venture Capital,
Ltd., MascoTech Automotive Systems Group, Inc., and the other individuals named
therein
Registration Rights Agreement for Common Stock dated July 29, 1994 by and among
DR International, Inc., a Delaware corporation, Citicorp Venture Capital Ltd.,
World Equity Partners, L.P., MascoTech Automotive Systems Group, Inc., Harold K.
Sperlich, James R. Gerrity and the Management Investors named therein
Stockholders' Agreement dated as of January 3, 1997 (as amended) by and among
MSX International, Inc., MascoTech, Inc., Citicorp Venture Capital, Ltd., and
other individuals named therein
Registration Rights Agreement dated as of January 3, 1997 by and among MSX
International, Inc., MascoTech, Inc., Citicorp Venture Capital, Ltd., and other
individuals named therein
Stockholders Agreement dated as of April 30, 1999 by and among Qualitor, Inc.,
Wind Point Partners III, L.P., Wind Point Executive Advisor Partners, L.P.,
Ralph E. Reins, First Union Capital Partners, Inc., and MascoTech, Inc.
<PAGE>
Registration Rights Agreement dated as of April 30, 1999 by and among Qualitor
Inc., Wind Point Partners III, L.P., Wind Point Executive Advisor Partners,
L.P., First Union Capital Partners, Inc.., and MascoTech, Inc.
Warrant Purchase Agreement dated as of April 30, 1999, by and between
Qualitor, Inc. and MascoTech, Inc.
Warrant No. 2 dated as of April 30, 1999 issued by Qualitor, Inc. to MascoTech,
Inc. to purchase 107,143 shares of Common Stock
Warrant No. 3 dated as of April 30, 1999 issued by Qualitor, Inc. to MascoTech,
Inc. to purchase 65,839 shares of Common Stock
Warrant No. 4 dated as of April 30, 1999 issued by Qualitor, Inc. to MascoTech,
Inc. to purchase 25,643 shares of Common Stock
Registration Rights and Voting Agreement dated as of May 31, 1996 between Tower
Automotive, Inc., and MascoTech, Inc.
Senior Subordinated Note dated March 23, 1999 for $6 million issued by American
Commercial Plastics, Inc. to MascoTech, Inc.
Guaranty of MascoTech Coatings, Inc.
Guaranty of George S. Hofmeister
General Security Agreement dated as of March 23, 1999 by and among MascoTech,
Inc., American Commercial Plastics, Inc. and MascoTech Coatings, Inc.
Mortgage dated March 24, 1999 by MascoTech Coatings, Inc. in favor of
MascoTech, Inc.
Assignment of Rents, Issues, Profits and Leases by MascoTech Coatings, Inc. in
favor of MascoTech, Inc.
Subordination Agreement dated March 23, 1999 by MascoTech, Inc., MascoTech
Coatings, Inc. and National Bank of Canada
<PAGE>
SCHEDULE 4.03
CONSENTS OF SELLER
Filings under HSR Act
The parties agree that to the extent any consent listed in this Schedule relates
to any Shares not purchased in accordance with Section 3.03, the failure to
obtain such consent shall not constitute a breach of the representations and
warranties set forth in Section 4.03 with respect to such Shares (the
"UNPURCHASED SHARES") at the Closing of any other Shares which does not include
such Unpurchased Shares.
Amended and Restated Members' Agreement dated as of September 30, 1999 among
Advanced Accessory Systems, LLC (F/K/A AAS Holdings, LLC) and the members
thereof
Third Amended and Restated Operating Agreement dated as of September 30, 1999 of
Advanced Accessory Systems, LLC (F/K/A AAS Holdings, LLC) and the members
thereof
Shareholders Agreement dated March 23, 1999 by and among MascoTech, Inc.,
American Commercial Plastics, Inc., and Innovative Coating Technologies, Inc.
Stockholders Agreement dated as of January 3, 1997 (as amended) by and among MSX
International, Inc., MascoTech, Inc., Citicorp Venture Capital, Ltd., and other
individuals named therein
Stockholders Agreement dated as of April 30, 1999 by and among Qualitor, Inc.,
Wind Point Partners III, L.P., Wind Point Executive Advisor Partners, L.P.,
Ralph E. Reins, First Union Capital Partners, Inc., and MascoTech, Inc.
Registration Rights and Voting Agreement dated as of May 31, 1996, between
Tower Automotive, Inc. and MascoTech, Inc.
Additional filings as are identified in Section 6.04
<PAGE>
SCHEDULE 4.04
CONFLICTS OF SELLER
LOAN AGREEMENTS
$1,300,000,000 Credit Agreement dated as of January 16, 1998 among MascoTech,
Inc., MascoTech Acquisition, Inc., the banks party thereto from time to time,
The First National Bank of Chicago, as Administrative Agent, Bank of America
NT&SA and NationsBank N.A., as Syndication Agents and Amendment No. 1 thereto
dated as of February 10, 1998
<PAGE>
SCHEDULE 5.02
CONSENTS OF PURCHASER
Stockholders' Agreement dated as of January 3, 1997 (as amended) by and among
MSX International, Inc., MascoTech, Inc., Citicorp Venture Capital, Ltd. and
other individuals named therein
Filings under HSR Act
The parties agree that to the extent any consent listed in this Schedule relates
to any Shares not purchased in accordance with Section 3.03, the failure to
obtain such consent shall not constitute a breach of the representations and
warranties set forth in Section 5.02 with respect to any Unpurchased Shares at
the closing of any other Shares which does not include such Unpurchased Shares
Additional filings as are identified as provided in Section 6.04
