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New York, New York
To the Underwriters
named in Schedule II hereto
Dear Sirs:
Masco Corporation, a Delaware corporation (the "Company"), proposes
to
issue its Securities described in Schedule I hereto (the
"Securities") to be
issued pursuant to the provisions of the Indenture relating thereto
listed in
Schedule I hereto (the "Indenture"), between the Company and the
Trustee named
in Schedule I hereto (the "Trustee"). The Company has filed with
the Securities
and Exchange Commission (the "Commission"), and there has become
effective, a
registration statement (the file number of which is set forth in
Schedule I
hereto), including a prospectus, relating to the Securities. The
registration
statement as amended to the date of this Agreement is hereinafter
referred to as
the "Registration Statement", and the prospectus as amended to the
date of this
Agreement (other than as amended by prospectus supplements relating
to
securities other than the Securities) (the "Base Prospectus") and
as amended by
a prospectus supplement (the "Prospectus Supplement") relating to
the Securities
to be filed pursuant to Rule 424 under the Securities Act of 1933,
as amended
(the "Act"), is hereinafter referred to as the "Prospectus"
(including in each
case documents incorporated by reference). The term preliminary
prospectus means
a preliminary prospectus supplement (including any amendments or
supplements
thereto) specifically relating to the Securities, together with the
Base
Prospectus. The term free writing prospectus has the meaning set
forth in Rule
405 under the Act. The term issuer free writing prospectus has the
meaning set
forth in Rule 433 under the Act. The time when sales of Securities
are first
made is referred to as the "Time of Sale". The term Time of Sale
Prospectus
means the Base Prospectus and preliminary prospectus, if any,
together with the
term sheet as set forth in Schedule IV hereto. As used herein, the
terms "Base
Prospectus", "Prospectus", "preliminary prospectus" and "Time of
Sale
Prospectus" shall include in each case the documents, if any,
incorporated by
reference therein. The terms "supplement", "amendment" and "amend"
as used
herein shall include all documents deemed to be incorporated by
reference in the
Prospectus that are filed subsequent to the date of the Base
Prospectus by the
Company with the Commission pursuant to the Securities Exchange Act
of 1934, as
amended (the "Exchange Act").
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I.
The Company hereby agrees to sell to the several Underwriters named
in
Schedule II hereto (the "Underwriters"), and the Underwriters, upon
the basis of
the representations and warranties herein contained, but subject to
the
conditions hereinafter stated, agree to purchase from the Company,
severally and
not jointly, the principal amounts of Securities set forth opposite
their names
in Schedule II hereto, less their respective amounts, if any, of
Contract
Securities (as hereinafter defined), determined as provided below,
at the
respective purchase prices set forth in Schedule II hereto, plus
accrued
interest, if any, from the date set forth in Schedule I hereto to
the date of
payment and delivery. Securities to be purchased by the
Underwriters are
hereinafter called "Underwriters' Securities"; Securities to be
purchased
pursuant to delayed delivery contracts as herein provided are
hereinafter called
"Contract Securities".
If so indicated in Schedule I hereto, the Company hereby authorizes
the
Underwriters to solicit offers to purchase Contract Securities on
the terms and
subject to the conditions set forth herein pursuant to delayed
delivery
contracts substantially in the form of Schedule III attached hereto
but with
such changes therein as the Company may authorize or approve
("Delayed Delivery
Contracts"). Delayed Delivery Contracts are to be with
institutional investors
approved by the Company and of the types set forth in the
Prospectus. The
aggregate principal amount of Contract Securities shall not exceed
the amount
set forth in Schedule I hereto. On the Closing Date (as defined in
Article III
hereof) the Company will pay to you as compensation, for the
accounts of the
Underwriters, the fees specified in Schedule I hereto in respect of
all Contract
Securities. The Underwriters may pay to dealers the commission
specified in
Schedule I hereto in respect of Securities for which Delayed
Delivery Contracts
are arranged by such dealers. The Underwriters will not have any
responsibility
in respect of the validity or the performance of Delayed Delivery
Contracts.
The deduction for the Contract Securities referred to in the
first
paragraph of this Article I shall become effective upon execution
and delivery
by the Company and the several institutional investors of the
Delayed Delivery
Contracts, and such deduction shall be in the amount which shall
bear the same
proportion to the total principal amount of Contract Securities as
the principal
amount of Underwriters' Securities set forth opposite the name of
the respective
Underwriter bears to the aggregate principal amount of
Underwriters' Securities
set forth in Schedule I hereto, except to the extent that you
determine that
such deduction shall be otherwise than in such proportions and so
advise the
Company in writing.
II.
The Company is advised by you that the Underwriters propose to make
a
public offering of their respective portions of the Underwriters'
Securities as
soon after this Agreement is entered into as in your judgment is
advisable
(unless the
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timing of the offering is otherwise described in Schedule I
hereto). The terms
of the public offering of the Underwriters' Securities are as
specified in
Schedule I hereto.
III.
Payment for the Underwriters' Securities shall be made by wire
transfer
of immediately available funds to an account specified by the
Company, on the
date and at the time specified in Schedule I hereto, upon delivery
to you for
the respective accounts of the several Underwriters of the
Underwriters'
Securities registered in such names and in such denominations as
you shall
request in writing not later than 1:30 P.M., New York City time on
the second
business day prior to the date of delivery. The time and date of
such payment
and delivery are herein referred to as to the Closing Date.
IV.
The several obligations of the Underwriters hereunder are subject
to
the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings
for such purpose shall be pending before or be threatened by
the Commission and there shall have been no material adverse
change (not in the ordinary course of business) in the
condition of the Company and its subsidiaries taken as a whole
from that set forth in the Registration Statement, the Time of
Sale Prospectus and the Prospectus; and you shall have
received on the Closing Date a certificate, dated the Closing
Date and signed by the Chairman of the Board, the President or
a Vice President of the Company, to the foregoing effect. The
officer making such certificate may rely upon the best of his
knowledge as to proceedings pending or threatened.
(b) You shall have received on the Closing Date an
opinion dated the Closing Date, satisfactory to you and
counsel for the Underwriters, of John R. Leekley, Senior Vice
President and General Counsel of the Company, to the effect
that:
(i) the Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, is authorized by its certificate of incorporation to
transact the business in which it is engaged and is duly
registered and qualified to conduct the business in which it
is engaged and is in good standing in each jurisdiction in
which its failure so to register or qualify would materially
adversely affect the results of
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operations or financial condition of the Company and its
subsidiaries, taken as a whole;
(ii) all the outstanding shares of capital stock of
Masco Corporation of Indiana and Behr Holdings Corporation
have been duly authorized and validly issued and are fully
paid and non-assessable; all of the outstanding limited
liability company interests of Merillat Industries, LLC have
been duly authorized and validly issued; and all such
outstanding shares of capital stock and limited liability
company interests are owned directly or indirectly by the
Company free and clear of all liens or encumbrances;
(iii) the Indenture has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company in accordance with its terms and has
been qualified under the Trust Indenture Act of 1939, as
amended;
(iv) the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement (or, in the case of
Contract Securities, by institutional investors pursuant to
Delayed Delivery Contracts), will be valid and binding
obligations of the Company and will be entitled to the
benefits of the Indenture;
(v) this Agreement has been duly authorized, executed
and delivered by the Company;
(vi) the Delayed Delivery Contracts, if any, have been
duly authorized, executed and delivered by the Company and are
valid and binding agreements of the Company in accordance with
their terms;
(vii) no authorization, consent or approval of, or
registration or filing with, any governmental or public body
or regulatory authority is required on the part of the Company
for the issuance of the Securities in accordance with the
provisions of the Indenture or the sale of the Securities
pursuant to this Agreement, other than registration of the
Securities under the Act, qualification of the Indenture under
the Trust Indenture Act of 1939, as amended, and compliance
with the securities or Blue Sky laws of various jurisdictions;
(viii) the execution and delivery of the Indenture and
this Agreement, the issuance of the Securities in accordance
with the provisions of the Indenture and the sale of the
Securities pursuant to this Agreement do not result in any
violation by the Company of
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any of the terms or provisions of any law or regulation, or of
the certificate of incorporation or Bylaws of the Company, or,
to the knowledge of such counsel, of any indenture, mortgage
or other agreement or instrument by which the Company or any
of its subsidiaries is bound;
(ix) the statements contained in the Time of Sale
Prospectus and the Prospectus under the captions "Description
of Debt Securities" and "Description of Notes" (and "Delayed
Delivery Arrangements", if any), insofar as such statements
constitute summaries of the documents or matters referred to
therein, fairly present the information called for with
respect to such documents or matters;
(x) the Company is not an "ineligible issuer" in
connection with the offering pursuant to Rules 164, 405 and
433 under the Act. The Company has not made any offer relating
to the Securities that would constitute a free writing
prospectus other than the issuer free writing prospectus
containing substantially the same terms as provided for in
Schedule IV hereto. Any such free writing prospectus as of its
issue date complied in all material respects with the
requirements of the Act and the rules and regulations
thereunder and was filed with the Commission in accordance
with the Act (to the extent required pursuant to Rule 433(d)
thereunder).
(xi) such counsel does not know of any legal or
governmental proceeding required to be described in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus which is not described as required, nor of any
material contract or other material document required to be
described in the Registration Statement, the Time of Sale
Prospectus or the Prospectus or to be filed as an exhibit to
the Registration Statement which is not described or filed as
required;
(xii) the Registration Statement and the Prospectus and
any amendment or supplement thereto (except for the financial
statements and other statistical and financial data included
therein and except for supplements relating only to securities
other than the Securities, as to which such counsel need not
express an opinion) comply as to form in all material respects
with the requirements of the Act, and such counsel has no
reason to believe (A) that (except as aforesaid and except for
the Statements of Eligibility on Form T-1 furnished by the
Trustees and filed as exhibits to the Registration Statement)
the Registration Statement, as of the date of this Agreement
and as of the Closing Date, contained an untrue statement of a
material fact or omitted to state
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a material fact required to be stated therein or necessary to
make the statements therein not misleading or (B) that (except
for the financial statements and other statistical and
financial data included therein and except for supplements
relating only to securities other than the Securities, as to
which such counsel need not express an opinion) the Time of
Sale Prospectus, as of the Time of Sale, or the Prospectus, as
of its date and as of the Closing Date, contained any untrue
statement of material fact or omitted to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and
(xiii) such counsel believes that the documents
incorporated by reference in the Registration Statement, the
Time of Sale Prospectus and the Prospectus and any supplements
or amendments thereto (except for the financial statements and
other
statistical and financial data included therein as to
which such counsel need not express an opinion) complied when
so filed as to form in all material respects with the
Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the rules and regulations thereunder.
In rendering such opinion (A) such counsel may rely to the
extent such counsel deems appropriate on the opinion of other
counsel
reasonably satisfactory to you and (B) with respect to clauses
(xii)
and (xiii) of this paragraph (b), such counsel may state that
his
opinion and belief is based upon his participation in the
preparation
of the Registration Statement, the Time of Sale Prospectus, and
the
Prospectus and any amendment and supplement thereto and review
and
discussion of the contents thereof, but without independent check
or
verification except as specified in such opinion.
(c) You shall have received on the Closing Date an
opinion, dated the Closing Date, of Davis Polk & Wardwell,
counsel for the Underwriters, as to the matters referred to in
clauses (iii), (iv), (v), (ix) and (xii) of the foregoing
paragraph (b), provided that with respect to clause (xii) of
the foregoing paragraph (b) such counsel may state that their
opinion and belief are based upon their participation in the
preparation of the Registration Statement, the Time of Sale
Prospectus, and the Prospectus and any amendments or
supplements thereto (other than documents incorporated by
reference) and review and discussion of the contents thereof
(including documents incorporated by reference), but without
independent check or verification except as specified in such
opinion.
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(d) You shall have received a letter addressed to you
and dated the Closing Date of PricewaterhouseCoopers LLP, an
independent registered public accounting firm, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information
contained in or incorporated by reference into the
Registration Statement, the Time of Sale Prospectus, and the
Prospectus.
(e) The Company shall not have failed on or prior to the
Closing Date to have performed or complied with any of the
agreements herein contained and required to be performed or
complied with by it on or prior to the Closing Date, and all
of the representations and warranties of the Company contained
herein shall be true and correct in all material respects on
and as of the date hereof and as of the Closing Date as if
made on and as of the Closing Date.
V.
In further consideration of the agreements of the Underwriters
herein
contained, the Company covenants as follows:
(a) To furnish to each of you without charge two copies
of the Registration Statement (including exhibits and
documents incorporated by reference) and, during the period
mentioned in paragraph (c) below, as many copies of the
Prospectus and any amendments or supplements thereto prepared
pursuant to paragraph (c) below as you may reasonably request.
(b) To prepare and file (or mail for filing) with the
Commission pursuant to Rule 424 under the Act, as promptly as
practicable after the execution of this Agreement, a
prospectus supplement setting forth such information as is
necessary so that the Prospectus, when delivered to a
purchaser of the Securities, will comply with law and, before
amending the Registration Statement or supplementing the Time
of Sale Prospectus or the Prospectus with respect to the
Securities, to furnish you a copy of each such proposed
amendment or supplement.
(c) If the Time of Sale Prospectus is being used to
solicit offers to buy the Securities at a time when the
Prospectus is not yet available to prospective purchasers and
any event shall occur as a result of which it is necessary to
amend or supplement the Time of Sale Prospectus in order to
make the statements therein, in the light of the circumstances
existing at the time, not misleading, or if any event shall
occur as a result of which any
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free writing prospectus included as part of the Time of Sale
Prospectus conflicts with the information contained in the
Registration Statement then on file, the Company shall
forthwith prepare and furnish, at its expense, to the
Underwriters and to the dealers (whose names and addresses you
will furnish to the Company), either amendments or supplements
to the Time of Sale Prospectus so that the statements in the
Time of Sale Prospectus as so amended or supplemented will
not, in the light of the circumstances existing at the time,
be misleading or so that any free writing prospectus which is
included as part of the Time of Sale Prospectus, as amended or
supplemented, will no longer conflict with the Registration
Statement.
(d) If, during such period after the first date of the
public offering of the Securities as in the opinion of your
counsel a prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer (including
in circumstances where no physical delivery is required
pursuant to Rule 172), any event shall occur as a result of
which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare, file
with the Commission (if required) and furnish, at its own
expense, to the Underwriters and to the dealers (whose names
and addresses you shall furnish to the Company) to which
Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus will comply with law.
(e) To endeavor to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request and to pay all
expenses (including fees and disbursements of counsel) in
connection with such qualif
