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EXHIBIT 10.r
REGISTRATION AGREEMENT
This Agreement is made as of March 31, 1993, between Masco Industries,
Inc., a Delaware corporation (the "Company") and Masco Corporation, a Delaware
corporation ("Masco").
WHEREAS, Masco currently holds certain Company securities; and
WHEREAS, Masco is acquiring certain Company securities pursuant to a
Purchase Agreement (the "Purchase Agreement") and an Exchange Agreement (the
"Exchange Agreement"), each with the Company of even date herewith, and may
acquire additional Company securities pursuant to a Securities Purchase
Agreement (the "Securities Purchase Agreement") with the Company of even date
herewith; and
WHEREAS, in connection with the Purchase Agreement, the Exchange Agreement
and the Securities Purchase Agreement, the Company has agreed to provide to
Masco certain registration rights with respect to certain Company securities as
provided
herein.
NOW, THEREFORE, the parties agree as follows:
1. Definitions.
"Common Stock" means the Company's Common Stock, par value $1.00 per share.
"Convertible Debentures" means the Company's 6% Convertible Subordinated
Debentures due 2011.
"Preferred Stock" means the Company's 10% Exchangeable Preferred Stock
issued pursuant to the Exchange Agreement and the Company's exchangeable
preferred stock that may be issued pursuant to the Securities Purchase
Agreement.
"Registrable Securities" means (i) the 17,946,498 shares of Common Stock
held by Masco as of the date hereof (after giving effect to the Company's
acquisition of 10 million shares of Common Stock pursuant to the Exchange
Agreement between the Company and Masco of even date herewith) and shares of
Common Stock that may be reacquired by Masco pursuant to the Masco Corporation
1984 Restricted Stock (Industries) Plan, (ii) $130 million principal amount of
Convertible Debentures held by Masco, (iii) Preferred Stock, (iv) Subordinated
Debentures, (v) Warrants, (vi) Common Stock issuable upon conversion of the
Convertible Debentures and upon exercise of the Warrants, and (vii) any
securities issued or issuable with respect to, or derived from, the securities
referred to in clauses (i) through (vi) by way of stock dividend, stock split or
other distribution or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization.
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"Subordinated Debentures" means the Company's subordinated debentures that
are issuable upon redemption and exchange of the Preferred Stock and the
Company's subordinated debentures that may be issued pursuant to the Securities
Purchase Agreement.
"Warrants" means the warrants issued by the Company to purchase 10 million
shares of Common Stock, which warrants were issued pursuant to the Purchase
Agreement.
2 (a). Registration of Registrable Securities. Whenever the Company shall
receive a written request signed by Masco requesting the Company to file a
registration statement under the Securities Act of 1933, as in effect at the
relevant time, or a comparable statement under any similar Federal statute then
in effect (a "Registration Statement"), covering any class or series of
Registrable Securities held by Masco, the Company shall promptly prepare and
file a Registration Statement covering the Registrable Securities requested to
be registered. The registration request may, at the option of Masco, require the
Registration Statement to include Registrable Securities held by persons who
acquired such Registrable Securities directly from Masco in a private placement
(hereinafter referred to, together with Masco, as a "Selling Holder"). The
Company shall use its best efforts to cause the Registration Statement to become
effective and remain effective for the period required to permit the offering
and sale of the Registrable Securities covered thereby, which may be an
indefinite period of time if the registration request shall specify a delayed or
continuous offering pursuant to Rule 415 of the Securities and Exchange
Commission or any successor or comparable provision then in effect ("Shelf
Registration").
2(b). Limitations on Registration and Disposition. (i) The Company shall
not be obligated to (A) file a Registration Statement with respect to less than
$25 million market value of Registrable Securities (as determined in good faith
by Masco at the time of the request), except that if the Company shall have
redeemed or exchanged any class or series of Registrable Securities such that
Masco holds less than $25 million market value of such class or series, Masco
may request registration of all of any such class or series then held, or (B)
make any such filing within 6 months from the effective date of the next
preceding filing made pursuant hereto, except Masco may, within the period
commencing with the date of issuance of Preferred Stock or Subordinated
Debentures issued pursuant to the Securities Purchase Agreement or Subordinated
Debentures issued upon redemption and exchange of Preferred Stock and ending six
months from such effective date, require the filing of a Registration Statement
covering such Preferred Stock or Subordinated Debentures.
(ii) No disposition of Registrable Securities shall be made under a Shelf
Registration unless the Selling Holder of such securities shall give the Company
five days' prior written notice of such holder's intent to make such
disposition.
(iii) The Company may elect to defer, for a period not exceeding a total of
90 days, the preparation of any Registration Statement or the disposition of
Registrable Securities pursuant to an effective Shelf Registration if in the
Company's good faith judgment pending or prospective business developments
(including financing plans) justify a temporary delay or the prospectus
contained in an effective Shelf Registration contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements
made in the light of the circumstances in which they were made, not misleading.
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(iv) The exercise of Warrants or conversion of Convertible Debentures shall
not constitute a disposition of Registrable Securities for purposes of clauses
(ii) and (iii) above.
2(c). Registration Procedures. (i) Whenever the Company shall file a
Registration Statement pursuant hereto, the Company shall (A) thereafter, for
such period of time as shall be required in connection with the transactions
contemplated thereby and permitted by applicable rules, regulations and
administrative practice, file all post-effective amendments and supplements
thereto or to the prospectus contained therein and all filings under the
Securities Exchange Act of 1934 that are necessary or appropriate so that
neither the Registration Statement nor any related prospectus shall contain any
material misstatement or omission relative to the Company or any of its assets
or its business or affairs and so that the Registration Statement and such
prospectus will otherwise comply with all applicable legal requirements, subject
to the provisions of Paragraph 2(b) (iii) above, (B) furnish to the Selling
Holders of the registered Registrable Securities such number of copies of the
Registration Statement and any related preliminary prospectus, prospectus,
post-effective amendment or supplement as such Selling Holders reasonably may
request, and (C) take all action that may be necessary under the securities or
Blue Sky laws of any state and as reasonably may be requested to permit the
public offering and sale of the Registered Securities covered by the
Registration Statement; provided, however, that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now
qualified or to take any action which would subject it to service of process in
suits, other than those arising out of the offering or sale of the Registrable
Securities, in any jurisdiction where it is not now subject. In connection with
any such Registration Statement, the Company shall deliver to such Selling
Holders and any underwriters such indemnities, contribution agreements,
opinions of counsel and letters of independent public accountants as are then
customarily given to underwriters of registered public offerings and selling
security holders. The underwriters and such Selling Holders shall deliver to the
Company such indemnities, contribution agreements and opinions as are then
customarily given to issuers of registered public offerings.
(ii) Anything in this Agreement to the contrary notwithstanding, the
Company shall not be obligated to file a Registration Statement unless the
Selling Holders of the Registrable Securities being registered shall have
furnished the Company in writing all information with respect to such Selling
Holders, the Registrable Securities held by such Selling Holders requested to be
so included, the transaction or transactions which such Selling Holders
contemplate and each underwriter, if any, who will act for such Selling Holders
in connection therewith, that any law, rule or regulation requires to be
disclosed therein.
(iii) The Company covenants that it will file the reports required to be
filed by it under the Securities Exchange Act of 1934, as in effect from time to
time, and the rules and regulations adopted by the Securities and Exchange
Commission thereunder, and will deliver to Masco at its request a written
statement affirming that it has complied with such requirements.
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(iv) Whenever a Registration Statement is requested with respect to
Subordinated Debentures, the Company will enter into an indenture on
substantially similar terms and conditions (but not materially inconsistent with
the terms of such Subordinated Debentures) as those contained in the Indenture
dated as of November 1, 1986 between the Company and Xxxxxx Guaranty Trust
Company of New York. The trustee designated by the Company to act as trustee
under the Indenture shall be a bank or trust company or national banking
association which has a combined capital and surplus in excess of $50,000,000.
(v) The Company will, at it own expense, take whatever action is necessary
to cause all Registrable Securities registered pursuant to these registration
rights to be listed on a national securities exchange or to be included for
quotation in the over-the-counter market as reported by the National Association
of Securities Dealers Automated Quotation System or similar organization.
(vi) All expenses (other than fees (including underwriters' discounts and
commissions) and expenses of any underwriters and counsel to the Selling
Holders) in connection with registrations undertaken pursuant hereto shall be
borne by the Company, provided, however, that if Masco withdraws or abandons its
request, then Masco shall reimburse the Company for all expenses reasonably
incurred by the Company in complying with such request.
(vii) Masco shall be deemed to be the representative of all Selling
Holders, with full authority to select a managing underwriter, withdraw or
abandon the Registration Statement, and make comparable decisions on behalf of
all Selling Holders after reasonable consultation therewith.
(viii) The Company will make available for inspection any Selling Holder,
any underwriter participating in any disposition pursuant to a Registration
Statement and any attorney, accountant or other professional retained by any
Selling Holder or any such underwriter (collectively, the "Inspectors"), all
financial and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records") as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information reasonably requested
by any Inspectors in connection with such registration statement. Records which
the Company determines, in good faith, to be confidential and which it notifies
the Inspectors are confidential shall not be disclosed by the Inspectors unless
(i) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such Registration Statement or (ii) the release of
such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction. Information obtained as a result of such inspections
shall be deemed confidential and shall not be used as the basis for any market
transactions in the securities of the Company unless and until such is made
generally available to the public. Each Selling Holder of such Registrable
Securities will, upon learning that disclosure of such Records is sought in a
court of competent jurisdiction, give notice to the Company and allow the
Company, at its expense, to undertake appropriate action to prevent disclosure
of the Records deemed confidential.
3 (a). Amendments and Waivers. This Agreement may not be amended or
terminated, nor any condition or term hereof be waived orally, but only by an
instrument in writing duly executed by the parties hereto or, in the case of a
waiver, by the party otherwise entitled to performance.
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3 (b). Benefit of Agreement. This Agreement shall inure to the benefit of
and be binding upon the parties hereto, and upon their respective successors and
assigns, provided, however, that Masco may not assign any of its rights
hereunder.
3 (c). Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Michigan.
3 (d). Paragraph and Other Headings. The paragraph and other headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
MASCO CORPORATION
By /s/ Xxxxx X. Xxxx
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MASCO INDUSTRIES, INC.
By /s/ Xxxxxxx Xxxxxxx
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