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EXHIBIT 10.b
CORPORATE SERVICES AGREEMENT
This Agreement is made as of January 1, 1987 between Masco Corporation,
a Delaware corporation ("Masco"), and Masco Industries, Inc., a Delaware
corporation ("Industries").
WHEREAS, Masco and Industries desire to amend and restate that certain
Corporate Services Agreement between them dated as of May 1, 1984 (the "1984
Corporate Services Agreement"); and
WHEREAS, Masco and Industries desire to terminate that certain
Corporate Services Agreement dated as of July 1, 1985 (the "1985 Corporate
Services Agreement") between Masco's wholly-owned subsidiary Masco Building
Products Corp., a Delaware corporation ("MBPC"), and NI Industries, Inc. a
Delaware corporation and currently an indirect wholly-owned subsidiary of
Industries ("NI"); and
WHEREAS, Industries desires that Masco provide, and Masco is willing to
provide, either directly or through its subsidiaries, certain services and
facilities on the terms and conditions hereinafter set forth; and
WHEREAS, Masco desires that Industries provide, and Industries is
willing to provide, either directly or through NI, certain facilities on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties agree to amend and restate the 1984 Corporate
Services Agreement and take certain other action as follows:
1. Masco shall provide to Industries and its subsidiaries corporate
support staff and administrative services of those personnel which Masco
maintains internally for its own officers, operating executives and business
operations and which Masco has heretofore provided to Industries headquarters
and businesses pursuant to the 1984 Corporate Services Agreement, such as
accounting, legal, treasury, tax, corporate development, data processing,
research and development and human resources, provided that Masco shall not be
obligated to provide any services which would be in contravention of law. Masco
shall furnish such services at the reasonable request of Industries, provided
that Masco shall not be required to disrupt the provisions of services for its
own business purposes and shall not be obligated to retain additional employees
in order to accommodate Industries requirements for services other than in the
ordinary course of business. In addition, Masco shall provide to Industries
headquarters office space and data processing equipment in Masco's corporate
office in Taylor, Michigan.
2. Industries shall provide to MBPC headquarters office space at the
corporate offices of NI in Long Beach, California, as heretofore provided
pursuant to the 1985 Corporate Services Agreement.
3. Industries will pay Masco a fee for the services and office space
provided under Section 1 hereof, irrespective of Industries or its subsidiaries'
actual use thereof, equal to eight tenths of one percent of Industries'
consolidated annual net sales (pro rated for any partial year), as shown in
Industries' annual audited financial statements, less (in consideration of the
facilities provided by Industries to MBPC pursuant to Section 2 hereof) the real
estate related costs incurred by NI to maintain headquarters office space for
MBPC in NI's Long Beach, California headquarters, including, but not limited to,
depreciation expense, maintenance, repairs and taxes related to such facility.
Such fee shall be payable monthly in arrears within 30 days of the end of each
month, based upon Industries consolidated unaudited net sales for each month,
with such timely adjustment as may be required following the preparation of such
audited financial
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statements. Industries shall be responsible for the payment of fees and expenses
for services rendered by third parties retained by Masco on behalf of Industries
and its subsidiaries. In addition, Industries shall pay for material utilized
and purchased components in research and development projects, in accordance
with Masco's customary practice. The parties recognize that Industries may, in
the future, hire certain support and administrative staff to be employed solely
by Industries and incur other expenses for equipment, services or space, and to
the extent any such support and administrative staff are employed by Industries
or such expenses are incurred, Masco shall review the resulting cost savings, if
any, to Masco in providing support staff and administrative services, equipment
and headquarters office space hereunder and if, in Masco's good faith judgment,
such a cost savings has resulted, Masco shall reflect such savings by a
corresponding reduction in the subsequent fees to be paid hereunder.
4. Additional services, facilities and other items made available by
Masco to its operating units which are not covered by the base fee will
similarly be made available to Industries except if the provision of such
services, facilities and other items would be in contravention of law. The
charges for additional services, facilities and other items shall be determined
form time to time by Masco, but Industries shall have no obligation to purchase
or use any such additional services, facilities or other times.
5. The term of this agreement shall be from the date hereof through
December 31, 1988. the term shall be extended automatically for a period of one
year each January 1 thereafter, provided that Masco may give notice of
non-renewal not less than 90 days prior to any such January 1. This Agreement
may be terminated by Industries at any time, without cause, on 90 days written
notice, provided that such termination shall not relieve Industries of its
obligations accruing hereunder through the effective date of such termination.
6. In providing services, equipment and facilities hereunder, Masco and
Industries shall each have a duty to act, and to cause their respective
employees to act, in a reasonable and prudent manner. Subject to the provisions
of the Research and Development Undertaking attached as Annex A hereto, neither
Masco or its subsidiaries, nor any officer, Director, employee or agent of Masco
or its subsidiaries, nor Industries or its subsidiaries, nor any officer,
director, employee or agent of Industries or its subsidiaries, shall be liable
for any loss incurred in connection with the matters to which this Agreement
relates, except a loss resulting from willful misfeasance or bad faith.
7. The selection of Masco employees to provide services hereunder shall
be determined by Masco and such employees shall be the employees of Masco. All
work performed hereunder by Masco shall be performed by Masco as an independent
contractor.
8. Masco and Industries shall take reasonable measures to keep
confidential all information concerning the other which is acquired in the
course of performing services hereunder and which is of a nature customarily
considered to be confidential by them. Research and development services
provided by Masco shall be subject to the additional provisions set forth in
Annex A hereto.
9. This Agreement shall not be assigned by Industries without the
express written consent of Masco, except for an assignment by Industries to a
successor to substantially all of its business.
10. The 1985 Corporate Services Agreement is hereby terminated.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
MASCO CORPORATION MASCO INDUSTRIES, INC.
By/s/Xxxxxxx X. Xxxxxxxxx By/s/Xxxxx X. Xxxxxx
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Senior Vice President - President
Finance
The termination of the 1985 Corporate Services Agreement is accepted and agreed
to as of the day and year first above written.
NI INDUSTRIES, INC.
By/s/Xxxxx Xxxxxxx
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ANNEX A
RESEARCH AND DEVELOPMENT UNDERTAKING
RESEARCH AND DEVELOPMENT PROGRAM
1.01 Masco shall provide to Industries such research and development
services as have heretofore been provided to the businesses Masco is
transferring to Industries. Nothing herein or in the Corporate Services
Agreement (of which this Annex is a part) shall require Masco to provide
research and development services in kind, quality or amount greater than those
customarily provided to Masco's own business units.
CONFIDENTIAL RELATIONSHIP
2.01 It is acknowledged that in furtherance of performance by Masco of
the research and development services performed under this Annex, Masco and
Industries, during the term of this Annex may be exposed to and become privy to
and will generate various confidential or secret information proprietary to the
other, which confidential information may include, but is not limited to,
information, technical information, and know-how concerning products,
developments, new product plans, equipment, drawings, specifications, models,
prototypes, ideas, designs, software, processes, methods, research, sales and
customers and information relating to the management, operation or planning of
the other, and the fact of the others interest in certain projections or
technology (collectively hereinafter referred to as "Confidential Information").
Confidential Information shall be limited to information disclosed by one party
to the other party in writing (including information confirmed in writing to be
confidential within thirty (30) days after oral or visual disclosure) and
designated as confidential, exclusive or any information which:
(1) Was in the possession of the receiving party prior to receipt
thereof;
(2) Is or becomes available to the public through no fault of the
receiving party;
(3) Is obtained by the receiving party in good faith without
obligation of non-disclosure from a third party who has a right to
disclose the same; or
(4) Is developed by the receiving party independently of receipt of
such information from the disclosing party.
2.02 Masco and Industries shall hold and maintain the Confidential
Information of the other in confidence. Masco and Industries shall not without
the written consent of the disclosing party, except as specifically provided
herein, disclose to any third party any Confidential Information of the
disclosing party prior to the tenth (10th) anniversary of the date such
Confidential Information either is generated by the research and development
services or is disclosed by the disclosing party to the receiving party.
2.03 Masco, to the extent required for the furtherance of the research
and development services for Industries contemplated by this Annex may disclose
Industries Confidential Information to any engineering or equipment
manufacturing or consulting firm that prior to such disclosure has agreed in
writing with Masco in a manner consistent with this Annex neither to
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disclose the information to any party nor use it for any purpose other than in
furtherance of the research and development services provided by Masco to
Industries.
2.04 Upon termination of the Corporate Services Agreement or the
undertakings of this Annex, Masco will deliver to Industries upon request by
Industries all Industries Confidential Information including the work product
and all documentation generated by Masco relating thereto along with all
equipment, drawings, specifications, materials, notes and any other
documentation and physical things that Masco received from Industries.
REPORTS AND FUNDING
3.01 Masco will keep Industries generally informed of the work
performed and the results achieved under the research and development services
provided by Masco to Industries. Interim reports will be provided to the
business units of Industries upon their request.
3.02 Monies for financing materials and other property utilized in the
research and development services shall be provided in accordance with the
Corporate Services Agreement of which this Annex is a part.
IV. INVENTIONS AND PATENTS
4.01 Title to each invention or improvement and to patent applications
and patents thereon, made during performance of research and development
services by Masco under the Corporate Services Agreement performed at the
specific request of Industries and directed to the design, manufacture,
installation or use of a process, machine, manufacture, or composition of
matter, or improvement thereof, for manufacture, use, or sale by Industries
(hereinafter "Industries Originated Inventions") shall reside in Industries.
4.02 Title to each invention or improvement and to patent applications
and patents thereof, made during performance of research and development
services by Masco under the Corporate Services Agreement not specifically
performed at the request of Industries, but which invention or improvement is
directed to the design, manufacture, installation or use of a process, machine,
manufacture, or composition of matter, or improvement thereof, suitable for
manufacture, use or sale by Masco in its business, or by industries in its
business, and which invention makes substantial use of Industries Confidential
Information (hereinafter "Masco Originated Inventions") shall reside in
Industries.
4.03 Masco, its subsidiaries and, upon Masco's request, its affiliates,
are hereby granted an unlimited, royalty-free, irrevocable, non-exclusive
license, but not the right to grant sub-licenses, under Masco Originated
Inventions, and patent applications and patents thereof, to manufacture, use and
sell any process, machine, manufacture or composition of matter, and
improvements thereof, incorporating, such Masco Originated Inventions, to the
extent Industries has the right to grant such a license.
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4.04 Masco and Industries hereby agree to negotiate in good faith a
license granting to Masco the right to manufacture, use and sell any process,
machine, manufacture, or composition of matter, and improvements thereof,
incorporating Industries Originated Inventions, to the extent Industries has the
right to grant such a license, which license shall be on terms and conditions in
all respects reasonable to Masco in light of Masco's close involvement in the
research and development. This agreement to negotiate in good faith a license
under Industries Originated Inventions survives any termination of the Corporate
Services Agreement and this Annex.
4.05 Nothing in this Annex shall be construed as a grant to Industries
by Masco, by implication, estoppel or otherwise, of a right to use or a license
to Industries in any Masco patent, trademark, tradename, Masco Confidential
Information or other proprietary right not specifically granted to Industries.
Title to any invention or improvement, and any patent application or patent
thereon, made using both Masco Confidential Information and Industries
Confidential Information shall reside with the party whose Confidential
Information predominates and the other party shall be granted an unlimited,
royalty-free, irrevocable, non-exclusive license to manufacture, use and sell
any process, machine, manufacture or composition of matter, and improvements
thereof, incorporating such inventions and improvements.
4.06 Notwithstanding any non-disclosure provisions of this Annex, Masco
shall, if requested by Industries or an Industries business unit, and after
notifying Industries, file and prosecute, or have filed and prosecuted, patent
applications to protect any such inventions described in sub-paragraphs 4.01 and
4.02 above, in any and all countries. The expense of monitoring the preparation,
filing and maintaining such patent applications and patents thereon by third
parties shall be borne by Masco under the Corporate Services Agreement, except
for government fees, annuities and taxes and any monies paid to third parties
(collectively hereafter "Third Party Expenses"), which Third Party Expenses
shall be paid by Industries or reimbursed to Masco by Industries. Masco will
execute, acknowledge, and deliver all lawful papers which in the opinion of
Industries counsel are necessary or desirable to vest or perfect title if
required and in accordance with sub-paragraphs 4.01 and 4.02, as directed by
Industries, its successors or assigns, including applications for divisions of
pending applications, applications for reissue of patents and specific
assignments of applications and patents, and all rights under the International
Convention for the Protection of Industrial Property. In the event Industries
decides not to file a patent application on any Masco Originated Invention, then
Masco may do so in its own name at its own expense and Industries will assist
Masco, its nominees, successors and assigns, at any time in every proper manner
and without charge to Masco, but entirely at Masco's expense, to obtain patents
on the Masco Originated Invention in any and all countries, and will execute,
acknowledge and deliver all lawful papers which in the opinion of Masco counsel
are necessary or desirable for applying and obtaining patents thereon as Masco
may desire, and the provisions of Section 4.02 with respect to such Masco owned
Masco Originated Inventions shall not be applicable thereto.
4.07 Industries agrees to assert no rights, claims or entitlements
against Masco, its suppliers, its customers, its successors, assigns, or
nominees, whether arising out of patents, trade secrets, or otherwise based on
non-substantial use by Masco of Industries Confidential Information acquired by
Masco in the performance of the research and development services or based on
the use of Industries Confidential Information in existence at the time the
Corporate Services Agreement of which this Annex is a part, is signed.
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V. INFRINGEMENT AND INDEMNIFICATION
5.01 Industries agrees to indemnify and hold Masco harmless for
damages, costs, expenses and reasonable attorney's fees against any third party
claim of patent, trademark or copyright infringement, unfair competition, or
misappropriation of proprietary, confidential or trade secret information to the
extent such claim is based solely on Industries Confidential Information or on
the specifications and other materials provided by Industries to Masco.
5.02 Masco agrees to indemnify and hold Industries harmless for
damages, costs, expenses and reasonable attorney's fees, against any third party
claim of patent, trademark or copyright infringement, unfair competition, or
misappropriation of proprietary, confidential or trade secret information to the
extent such claim is based solely on Masco's manufacture, use, or sale of a
Masco Originated Invention.
5.03 Masco and Industries agree to promptly notify each other of any
claim brought by a third party against the other that comes under either
sub-paragraph 5.01 and 5.02 and agree that Masco shall promptly undertake
reasonable efforts to obtain a discontinuance of such claim, and, if not
successful, Masco shall consult with Industries. If the third party claim
becomes the subject of a court action, the party against whom the action is
brought shall select defense counsel (in consultation with Masco if the claim is
brought against Industries), and damages, costs, expenses, and attorney's fees
will be borne as stated in sub-paragraphs 5.01 and 5.02.
5.04 Masco and Industries shall notify the other promptly following the
discovery of any infringement of any unexpired patent or pending published
patent application directed to an invention defined in sub-paragraphs 4.01 and
4.02 above by any third party. Masco shall promptly undertake reasonable efforts
to obtain a discontinuance of the aforesaid infringement, and, if not
successful, Masco shall consult with Industries. If Industries, at its option,
brings suite against such infringer, Industries shall select counsel in
consultation with Masco and Masco shall guide such infringement action and
assist Industries counsel and all costs, expenses and attorney's fees of such
action shall be borne by Industries. Masco shall have the right, at its expense,
to bring suit against any infringer of a patent directed to a Masco Originated
Invention or an Industries Originated Invention licensed by Masco when the act
of infringement by the third party competes in the marketplace with a business
line of Masco.
5.05 Masco and Industries each agree to cooperate fully with the other
and furnish any evidence in its possession bearing on the issues involved in any
court action brought against Masco or Industries described in sub-paragraphs
5.01 and 5.02 and in any infringement action brought pursuant to sub-paragraph
5.04.
5.06 Any infringement action brought pursuant to sub-paragraph 5.04
shall be either in the name of Masco, or in the name of Industries, or jointly
by Masco and Industries, as may be required by the law of the forum. For this
purpose, Masco and Industries agree to execute such legal papers necessary for
the prosecution of such action. In any such action, both Masco and Industries
shall be entitled to recoup their expenses, costs and attorney's fees from any
recoveries in such action. The excess recovery over such recoupment for
infringement of a Masco Originated
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Invention shall be divided equally between Masco and Industries. Industries
shall retain the excess recovery for infringement of an Industries Originated
Invention.
VI. TERMINATION
6.01 This Annex shall terminate simultaneously with termination of the
Corporate Services Agreement unless terminated earlier or extended by agreement
of the parties. Sub-paragraphs 2.02, 2.03, 4.01, 4.02, 4.03, 4.04, 4.06, 4.07,
5.01, 5.02, 5.03, 5.04, 5.05 and 5.06 shall survive termination of this Annex.
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AMENDMENT NO. 1 TO
CORPORATE SERVICES AGREEMENT
This Amendment is made as of October 31, 1996 between Masco
Corporation, a Delaware corporation ("Masco"), and MascoTech, Inc., f/k/a Masco
Industries, Inc., a Delaware corporation ("Tech"), concerning that certain
Corporate Services Agreement (the "Services Agreement"), dated as of January 1,
1987, between Masco and Tech. All capitalized terms not otherwise defined in
this Amendment shall have the meanings given them in the Services Agreement.
X. Xxxxx holds 24,824,690 shares of the Common Stock, par value $1.00
per share, of Tech (the "Tech Common Stock");
B. Concurrently herewith, Tech has, among other things, repurchased
form Masco 17,000,000 shares of the Tech Common Stock;
C. In connection therewith, Masco and Tech desire to amend certain
provisions of the Services Agreement as set forth herein.
IN CONSIDERATION of the mutual covenants and agreements contained in
this Amendment, the parties agree to amend the Services Agreement as follows:
1. All references to "Industries" are hereby revised to be
references to "Tech".
2. Paragraph 5 is hereby amended to read in its entirety as
follows:
5. The term of this Agreement shall expire on September 30,
1998; provided however that the term shall be extended
automatically for a period of one year each October 1
thereafter, subject to either party's right to terminate this
Agreement by written notice to the other received at least 90
days prior to any such October 1. Termination of this
Agreement shall not relieve either party of its obligations
accruing hereunder through the effective date of termination.
3. All other terms and conditions of the Services Agreement are
hereby ratified and confirmed and remain in full force and
effect.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Amendment as of the date first above written.
MASCO CORPORATION
By: /s/Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Senior Vice President and General Counsel
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MASCOTECH, INC.
By: /s/Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
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Title: Vice President-Controller and Treasurer
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June 17, 1998
Xxxx X. Xxxxxxx
Senior Vice President
and General Counsel
Masco Corporation
00000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Dear Xxxx:
As you know, Masco Corporation and MascoTech, Inc. are both in the
process of reviewing the arrangement for corporate services that are currently
provided by Masco to MascoTech under the Corporate Services Agreement dated as
of January 1, 1987, as amended (the "Agreement"). The term of the Agreement will
be extended automatically for one year on October 1, 1998 unless written notice
of termination is given at least 90 days prior thereto.
MascoTech is prepared to waive the automatic one year extension and
permit the Agreement to continue beyond September 30, 1998 on the condition that
the Agreement may be terminated by either party at any time on or after
September 30, 1998 on [90] days' prior written notice (or such other notice
period as the parties may agree).
Please confirm that you join in this waiver, whereupon the foregoing
waiver will become binding on each of the parties.
Sincerely,
/s/Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Senior Vice President and
Chief Financial Officer
Confirmed:
MASCO CORPORATION
By: /s/Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Senior Vice President
and General Counsel
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January 22, 1998
Masco Corporation
00000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Gentlemen:
As you are aware, MascoTech, Inc. completed its acquisition of TriMas
Corporation on Thursday, January 22, 1998 (the "Effective Date"). This will
confirm our agreement that the Corporate Services Agreement, dated as of
December 27, 1988, between Masco Corporation ("Masco") and TriMas Corporation
(the "TriMas Corporate Services Agreement"), is terminated effective as of the
end of business on the Effective Date, except with respect to rights and
obligations of the parties thereto which have accrued as a result of services
rendered thereunder prior to the Effective Date. Furthermore, Masco agrees that
the period for which a fee is payable under the TriMas Corporate Services
Agreement will terminate on the earlier of (i) the Effective Date, or (ii) the
date immediately preceding the date that the consolidated net sales of TriMas
are included in the consolidated net sales of MascoTech, Inc. After such date,
Masco will be compensated for work performed for the TriMas companies under
Masco's Corporate Services Agreement with MascoTech (the "MascoTech Corporate
Services Agreement"). Finally, Masco agrees that, in calculating the fee payable
under the MascoTech Corporate Services Agreement, MascoTech is entitled to the
credits that were historically permitted to TriMas under the TriMas Corporate
Services Agreement of up to $250,000 per year for occupancy costs at TriMas' Xxx
Arbor headquarters (consisting of rent, utilities, maintenance and property
taxes), office supplies and postage costs at TriMas' Xxx Arbor headquarters and
the credit historically provided for the Xxxxxx management services that had
been discontinued by you when Masco Building Products shut down its operations.
If the foregoing is your understanding of our Agreement, please
acknowledge by signing below on the attached copy of this letter, and returning
same to the undersigned.
Very truly yours,
MASCOTECH, INC.
By/s/Xxxxx X. Liner
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The foregoing is acknowledged
and agreed to:
MASCO CORPORATION
By/s/Xxxx X. Xxxxxxx
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