TO SHAREHOLDERS
AGREEMENT
AMENDMENT NO. 1
(this “ Amendment ”), dated as of
August 31, 2006, to the SHAREHOLDERS AGREEMENT, dated as of
June 6, 2002, as amended and restated as of July 19, 2002
(the “ Shareholders Agreement ”) by and among
TRIMAS CORPORATION, a Delaware corporation (the “
Company ”), METALDYNE COMPANY LLC (“
MCLLC ”), HEARTLAND INDUSTRIAL PARTNERS, L.P. and the
HEARTLAND ENTITIES identified on the signature pages thereto and
the other parties identified as SHAREHOLDERS therein and listed on
the signature pages thereto or identified on the signature page of
any Joinder Agreement executed and delivered pursuant to the
Shareholders Agreement and the parties identified on the signature
pages hereto as “METALDYNE SHAREHOLDER PARTIES”.
Capitalized terms used but not otherwise defined herein shall have
the respective meanings ascribed thereto in the Shareholders
Agreement.
A. MCLLC is
the owner of 4,076,087 shares of the issued and outstanding Common
Stock of the Company and a Warrant to purchase 750,000 shares of
Common Stock of the Company (the “ Warrant ”
and, together with the shares of Common Stock owned by MCLLC or
issuable upon exercise of the Warrant, the “ Metaldyne
Shares ”) on the date hereof.
B. MCLLC is
considering making a distribution of the Metaldyne Shares to its
parent company, Metaldyne Corporation (“ Metaldyne
”), which will, in turn, make a distribution of the Metaldyne
Shares to the stockholders of record of Metaldyne and MCLLC has
requested an amendment of certain provisions of the Shareholders
Agreement to permit the foregoing.
C. The
Company, MCLLC and the other Shareholders desire to amend certain
provisions of the Shareholders Agreement to permit the Metaldyne
Distribution (as hereinafter defined), but, as a condition to its
willingness to execute the Amendment, the Company is requiring that
all current stockholders of Metaldyne that are also currently
parties to the shareholders agreement in place with respect to
shares of common stock of Metaldyne execute this Amendment and
agree to the provisions of the Shareholders Agreement in
anticipation of the Metaldyne Distribution in the event that it
should occur.
NOW, THEREFORE, in
consideration of the premises and mutual agreements contained
herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
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The
parties agree as follows:
1.
Amendment to Introduction . (a) The Preamble to the
Shareholders Agreement is hereby amended by adding
“either” after the word “executing” and by
adding the following after the word “hereof”:
“and, with respect to the Metaldyne Shareholders, upon the
occurrence of the Metaldyne Distribution”. It is hereby
agreed that, from and after the Metaldyne Distribution, the
Metaldyne Shareholder Parties shall be “Shareholders”
for all purposes of the Shareholders Agreement.
(b) The
first “Whereas” clause of the Shareholders Agreement is
hereby amended by adding the following at the end of such clause:
“and, upon the occurrence of the Metaldyne Distribution (if
it should occur), each Metaldyne Shareholder Party has received its
pro rata share of the Distributed Shares pursuant to the Metaldyne
Distribution.”
(c) The
second “Whereas” clause of the Shareholders Agreement
is hereby amended and restated as follows: “WHEREAS, as a
result of and in connection with the Stock Purchase, each
Shareholder as of July 19, 2002 owns the number of shares set
forth on Schedule 2.04 hereto and, as a result of and in
connection with the Metaldyne Distribution (if it should occur),
MCLLC will no longer own the Distributed Shares reflected on
Schedule 2.04 hereto and each Metaldyne Shareholder Party will
own its pro rata share of the Distributed Shares.”
2.
Amendment to Section 1.01 .
(a) Section 1.01 of the Shareholders Agreement is hereby
amended by adding the following at the end of the definition of
“Transfer”: “; provided that the
declaration (as opposed to the making) of the Metaldyne
Distribution shall not be considered to be a Transfer for purposes
of the Shareholders Agreement.”
(b) Section 1.01
of the Shareholders Agreement is hereby amended by inserting the
following defined terms (in their appropriate alphabetic order)
into such section:
“
Distributed Shares ” means any shares of Common Stock
or of all or any portion of the Warrant that, in either case, is
subject to a Metaldyne Distribution to Metaldyne
Shareholders.
“
First Amendment ” means Amendment No. 1 to
Shareholders Agreement, dated as of August 31, 2006, among the
Company, MCLLC, Heartland Industrial Partners, L.P., the Heartland
Entities identified on the signature pages thereto, the other
Shareholders listed on the signature pages thereto and the
Metaldyne Shareholder Parties listed on the signature pages
thereto.
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“
First Amendment Date ” means August 31,
2006.
“
Limited Permitted Transferee ” means (a) with
respect to any Shareholder that is a natural person, (i) the
spouse or any lineal descendant (including by adoption or
stepchildren) of such Shareholder or any Transferee of such
Shareholder by operation of laws of descent, (ii) any trust of
which such Shareholder is the trustee and which is established
solely for the benefit of any of the foregoing individuals and
(iii) any partnership, all of the general partner(s) and
limited partner(s) (if any) of which are one or more Persons
identified in the preceding clause (i) and (b) with
respect to any other Person, an Affiliate of such
Person.
“
Metaldyne Distribution ” means any distribution by
MCLLC to Metaldyne or by Metaldyne to Metaldyne Shareholders of any
shares of Common Stock (including shares of Common Stock issuable
upon exercise of the Warrant) or of all or any portion of the
Warrant.
“
Metaldyne Shareholders ” means (i) the owners of
record of the common stock of Metaldyne Corporation as of the
record date of any Metaldyne Distribution or (ii) any legal
successor-in-interest to or any Limited Permitted Transferee of any
Person referred to in clause (i) of this
definition.
“
Metaldyne Shareholder Parties ” means (i) those
owners of record of the common stock of Metaldyne Corporation as of
the First Amendment Date that are party to the Shareholders
Agreement relating to shares of common stock of Metaldyne dated as
of November 28, 2000 among Metaldyne and the Shareholders
named therein (whether directly or by joinder agreement), as
amended from time to time, and (ii) any legal
successor-in-interest to or any Transferee of any Person referred
to in clause (i) of this definition that is required to become a
party to the Shareholders Agreement by reason of Section 11(a) of
the First Amendment.
“ 1934
Act Registration ” means the registration of the Common
Stock by the Company under the 1934 Act.
3.
Amendment to Section 3.02 . Section 3.02 of
the Shareholders Agreement is hereby amended and restated in its
entirety as follows:
“Subject
to all applicable laws, the restrictions on Transfer set forth in
Section 3.01 hereof shall not apply to any of the
following:
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(a) a
Transfer by a Shareholder of Common Stock (other than Distributed
Shares prior to the 1934 Act Registration) to one of its Permitted
Transferees; provided that such Permitted Transferee shall
agree to execute a Joinder Agreement in the form annexed hereto as
Exhibit A (the “ Joinder Agreement
”);
(b) a
Transfer of Common Stock (other than Distributed Shares prior to
the 1934 Act Registration) by a Shareholder in accordance with
Sections 4.02 and 4.03 of this Agreement;
(c) a
Transfer by a Shareholder of Common Stock (other than Distributed
Shares prior to the 1934 Act Registration) after such Shareholder
has complied with Section 4.01; provided that the
Transferee shall agree to execute a Joinder Agreement;
(d) a
Transfer of Common Stock by a Shareholder pursuant to an effective
registration statement under the 1933 Act or a Transfer of Common
Stock (other than Distributed Shares prior to the 1934 Act
Registration) pursuant to Rule 144 under the 1933
Act;
(e) a
Transfer by MCLLC in connection with the issuance of a Convertible
Security as contemplated by Section 6.16; provided that
the recipient of such Convertible Security agrees to execute a
Joinder Agreement as described in Section 6.16;
(f) Transfers by MCLLC and Metaldyne
pursuant to a Metaldyne Distribution; provided that, if such
Transfer is to Metaldyne Shareholders prior to the 1934 Act
Registration, provision shall be made to ensure that subsequent
Transfers of Distributed Shares shall only be made, prior to the
1934 Act Registration, by Metaldyne Shareholders to Limited
Permitted Transferees of such Metaldyne Shareholder; and
(g) following a Metaldyne Distribution and
prior to the 1934 Act Registration, a Transfer by a Metaldyne
Shareholder of Distributed Shares to Limited Permitted Transferees
of such Metaldyne Shareholder.
4.
Amendment of Section 4.01. Section 4.01(a) of
the Shareholders Agreement is hereby amended by (i) deleting
the phrase “Section 3.02(a), 3.02(d), 4.02 or
4.03” and replacing it in its entirety with
“Section 3.02(a), 302(d), 3.02(g), 4.02 or 4.03”
and (ii) adding the following to the end of that section:
“Notwithstanding anything to the contrary
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herein, this
Section 4.01 (including, without limitation, the provisions of
the second paragraph of Section 4.01(c)) shall be inapplicable
to the Metaldyne Distribution itself.”
5.
Amendment of Section 4.02(a). Section 4.02(a)
of the Shareholders Agreement is hereby amended by
(i) deleting the phrase “Section 3.02(a), 3.02(d),
5.01 or 5.02” and replacing it in its entirety with
“Section 3.02(a), 3.02(d), 3.02(g), 5.01 or 5.02”
and (ii) adding the following to the end of last sentence
thereof: “ provided that, for the avoidance of doubt,
the provisions of this last sentence shall not apply to Transfers
of Distributed Shares received by the Sponsor
Transferor.”
6.
Amendment of Section 4.03. Section 4.03 of the
Shareholders Agreement is hereby amended by adding the following to
the end of first sentence thereof: “ provided ,
further , that, for the avoidance of doubt, the second
proviso of this sentence shall cease to apply following the
Metaldyne Distribution.”
7.
Amendment of Section 4.04.
(a) Section 4.04(b) of the Shareholders Agreement is
hereby amended by deleting the beginning thereof through but not
including “(1)” and replacing it in its entirety with
the following: “In the case of (x) any Shareholder
(other than MCLLC) prior to the occurrence of a Qualifying Public
Equity Offering, and for so long as such Shareholder owns
twenty-five percent (25%) of the number of shares of Common Stock
(as adjusted for Adjustments) owned by such Shareholder (in the
case of any Shareholder other than a Metaldyne Shareholder Party,
as of the date of the amendment and restatement hereof or, in the
case of any Metaldyne Shareholder Party, as of and after giving
effect to the Metaldyne Distribution) or (y) MCLLC, for so
long as MCLLC owns twenty-five percent (25%) of the number of
shares of Common Stock (as adjusted for Adjustments) owned by MCLLC
immediately following the Transactions, the Company shall deliver
the following to each such Shareholder and MCLLC:”
(b) Section 4.04(b)
shall be amended by the addition of the following at the end
thereof: “Notwithstanding the foregoing and the last sentence
of Section 4.04(c), the information available under
Section 4.04(b) (2) and (3) shall not be made
available to a Metaldyne Shareholder Party if the Company is filing
annual, quarterly and current reports under the 1934 Act (unless it
would otherwise be entitled to such information as a Shareholder
apart from the Metaldyne Distribution).”
(c) Section 4.04(e)
shall be amended by the addition of the following language at the
end thereof: “Each Shareholder acknowledges that trading in
securities of the Company and its Subsidiaries on the basis of
material non-public information received under this Agreement may
constitute a violation of United States Federal securities laws and
agrees to act to ensure compliance with such
laws.”
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8.
Amendment of Section 4.06.
(a) Section 4.06(a) of the Shareholders Agreement is
hereby amended by the addition of the following at the end thereof:
“(e) For the avoidance of doubt,
Section 4.06(a)(ii)(2) and (3), the proviso to
Section 4.06(a)(iv),
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