Attached files
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8-K - FORM 8-K - MASCO CORP /DE/ | k48958e8vk.htm |
EX-4.1 - EX-4.1 - MASCO CORP /DE/ | k48958exv4w1.htm |
EX-5.1 - EX-5.1 - MASCO CORP /DE/ | k48958exv5w1.htm |
Exhibit 1.1
Underwriting Agreement
New York, New York
To the Underwriters
named in Schedule II hereto
named in Schedule II hereto
Ladies and Gentlemen:
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), an automatic shelf registration statement (the file
number of which is set forth in Schedule I hereto), including a prospectus, relating to the
Securities, which registration statement became effective upon filing under Rule 462(e) under the
Securities Act of 1933, as amended (the Act). 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 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 any 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).
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) Subsequent to the Time of Sale, there shall not have been any decrease
in the rating of any of the Companys debt securities by Moodys Investors
Service, Inc. or Standard & Poors Rating Services or any public notice given of
any intended or potential decrease in any such rating or of a possible change in
any such rating that does not indicate the direction of the possible change.
(c) You shall have received on the Closing Date an opinion dated the
Closing Date, satisfactory to you and counsel for the Underwriters, of Gregory
D. Wittrock, Vice President, General Counsel and Secretary of the Company, to
the effect that:
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(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 business results, results of
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; and all such outstanding shares of
capital stock 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, or for the performance by the Company of its obligations under the
Securities, other than registration of the Securities under the Act,
qualification of the Indenture under the Trust Indenture Act of
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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 and the performance by the
Company of its obligations under the Securities do not result in any violation by
the Company of 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) (A) at the time of the initial filing of the Registration Statement,
(B) at the time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13 or
15(d) of the Exchange Act or form of prospectus), (C) at the time the Company or
any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Act) made any offer relating to the Securities in reliance
on the exemption of Rule 163 under the Act and (D) at the date hereof, the
Company was and is a well-known seasoned issuer (as defined in Rule 405 under
the Act), including not having been and not being an ineligible issuer (as
defined in Rule 405 under the
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Act). The Registration Statement is an automatic shelf registration
statement (as defined in Rule 405 under the Act), and the Securities, since
their registration on the Registration Statement, have been and remain eligible
for registration by the Company on a Rule 405 under the Act automatic shelf
registration statement. The Company has not received from the Commission any
notice pursuant to Rule 401(g)(2) under the Act objecting to the use of the
automatic shelf registration statement form;
(xii) 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;
(xiii) 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 each part of the Registration Statement at the time
such part became effective as to such Underwriter and as of the date of the
Prospectus Supplement, contained an untrue statement of a material fact or
omitted to state 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
(xiv) 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
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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 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.
(d) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Davis Polk & Wardwell LLP, counsel for the Underwriters, as to
the matters referred to in clauses (iii), (iv), (v), (ix) and (xiii) of the
foregoing paragraph (b), provided that with respect to clause (xiii) 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.
(e) On the Pricing Date and on the Closing Date, you shall have received
letters addressed to you and dated the respective dates of delivery thereof, 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.
(f) 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.
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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 Time
of Sale Prospectus and 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 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
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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 qualification and in connection with the determination of
the eligibility of the Securities for investment under the laws of such
jurisdictions as you may designate; provided that the Company shall not be
required to qualify to do business in any jurisdiction where it is not now
qualified or to take any action which would make it subject to general or
unlimited service of process in any jurisdiction where it is not now so subject.
(f) To make generally available to its security holders as soon as
practicable an earnings statement (which need not be audited) covering a
twelve-month period beginning with the first calendar quarter after the date of
this Agreement which shall satisfy the provisions of Section 11(a) of the Act.
(g) To notify you not less than 48 hours prior to the Closing Date of the
principal amount of Contract Securities.
(h) Not to offer, sell, contract to sell or otherwise dispose of for cash
any debt securities of the Company substantially similar to the Securities
during the period beginning on the date of this Agreement as indicated on
Schedule I hereto and continuing to and including the Closing Date, without your
prior written consent.
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VI.
The Company represents and warrants to each Underwriter that:
(a) each document filed by the Company pursuant to the Exchange Act which is incorporated by
reference in the Time of Sale Prospectus or the Prospectus complied when so filed in all material
respects with the Exchange Act and the rules and regulations thereunder, and each document, if any,
hereafter filed and so incorporated by reference in the Time of Sale Prospectus or the Prospectus
will comply when so filed in all material respects with the Exchange Act and such rules and
regulations;
(b) the Registration Statement, the Time of Sale Prospectus and the Prospectus comply, and the
Registration Statement, the Time of Sale Prospectus and the Prospectus (and any amendments and
supplements thereto, other than supplements relating only to securities other than the Securities)
will on the Closing Date comply, in all material respects with the Act and the applicable rules and
regulations of the Commission thereunder;
(c) each preliminary prospectus, if any, relating to the Securities filed pursuant to Rule 424
under the Act complied when so filed in all material respects with the Act and the applicable rules
and regulations thereunder;
(d) each part of the Registration Statement at the time such part became effective and as of
the date of the Prospectus Supplement did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Time of Sale Prospectus, as of the Time of Sale, did not and on the
Closing Date, will not, and each electronic road show, if any, when taken together as a whole with
the Time of Sale Prospectus, did not and on the Closing Date, will not, and the Prospectus (as
amended or supplemented, other than by supplements relating only to securities other than the
Securities), as of its date, did not, and on the Closing Date, will not contain any untrue
statement of a material fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading; except that
these representations and warranties do not apply to statements or omissions in the Registration
Statement, the Time of Sale Prospectus or the Prospectus based upon information furnished to the
Company in writing by or on behalf of any Underwriter expressly for use therein or contained in the
Statement of Eligibility on Form T-1 furnished by the Trustee and filed as an exhibit to the
Registration Statement;
(e) the Company and each of its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (1) transactions are executed in accordance with
managements general or specific authorization; (2) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to maintain accountability
for
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assets; (3) access to assets is permitted only in accordance with managements general or
specific authorization; and (4) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences; and except as described in the Prospectus, (I) since December 31, 2009, nothing has
come to the attention of management that would lead management to believe that a material weakness
has existed at any time thereafter, and (II) since December 31, 2009, nothing has come to the
attention of management that would lead management to believe that a change has occurred which has
materially affected, or is reasonably likely to materially affect, the Companys internal control
over financial reporting;
(f) The Company maintains disclosure controls and procedures (as such term is defined in
Rule 13a-15(e) under the Exchange Act); such disclosure controls and procedures have been designed
to ensure that material information relating to the Company and its subsidiaries is made known to
the Companys principal executive officer and principal financial officer by others within those
entities; and the Company has carried out evaluations of the effectiveness of its disclosure
controls and procedures as required by Rule 13a-15 of the Exchange Act;
(g) The business of the Company and its subsidiaries is conducted in compliance with the
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder and the
Company maintains policies and procedures designed to ensure continued compliance therewith;
(h) Neither the Company nor any of its subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury Department (OFAC); and
the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC; and
(i) Except as disclosed in each of the Registration Statement, the Time of Sale Prospectus
and the Prospectus, neither the Company nor any of its subsidiaries: (i) is in violation of, or to
the knowledge of the Company has liability or obligations under, any statute, common law, rule,
regulation, decision or order of any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to hazardous or toxic substances
(collectively, Environmental Laws), (ii) owns or operates any real property contaminated with any
substance that is subject to any Environmental Laws, or is liable for any off-site disposal or
contamination pursuant to any Environmental Laws, or (iii) is subject to any claim relating to any
Environmental Laws, nor is the Company aware of any pending investigation or any event or condition
that would reasonably be expected to result in any such claim, except where any such violation,
contamination, liability or claim would
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not, individually or in the aggregate, have a material adverse effect on the business results,
financial condition or results of operations of the Company and its subsidiaries taken as a whole.
The Company acknowledges and agrees that (a) the purchase and sale of the Securities pursuant
to this Agreement, including the determination of the public offering price of the Securities and
any related discounts and commissions, is an arms-length commercial transaction between the
Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with
the offering contemplated hereby and the process leading to such transaction each Underwriter is
and has been acting solely as a principal and is not an agent or fiduciary of the Company, or its
stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will
assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has
advised or is currently advising the Company on other matters) and no Underwriter has any
obligation to the Company with respect to the offering contemplated hereby except the obligations
expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be
engaged in a broad range of transactions that involve interests that differ from those of the
Company, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice
with respect to the offering contemplated hereby and the Company has consulted its own legal,
accounting, regulatory and tax advisors to the extent it deemed appropriate.
The Company agrees that, unless it has or shall have obtained the prior written consent of the
representatives set forth in Schedule I hereto (the Representatives), and each Underwriter,
severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as
the case may be, the prior written consent of the Company, it has not made and will not make any
offer relating to the Securities that would constitute an issuer free writing prospectus or that
would otherwise constitute a free writing prospectus (as defined in Rule 405) required to be
filed by the Company with the Commission or retained by the Company under Rule 433, other than a
free writing prospectus containing the information contained in the final term sheet, as set forth
in Schedule IV hereto; provided that the prior written consent of the parties hereto shall be
deemed to have been given in respect of the free writing prospectus included in Schedule IV hereto
and any electronic road show. Any such free writing prospectus consented to by the Representatives
or the Company is hereinafter referred to as a Permitted Free Writing Prospectus. The Company
agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an issuer free writing prospectus and (y) it has complied and will comply, as the
case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending and
record-keeping.
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The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers
and employees of each Underwriter and each person, if any, controlling any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any and all losses,
claims, damages, liabilities and reasonable expenses (including reasonable costs of investigation)
arising out of or based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Time of Sale Prospectus (as amended or supplemented),
any issuer free writing prospectus (taken together as a whole with the information in the Time of
Sale Prospectus) or the Prospectus, or in any amendment or supplement thereto, or in any
preliminary prospectus or arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims, damages, liabilities or expenses are caused
by any such untrue statement or omission or allegation thereof which has been made therein or
omitted therefrom in reliance upon and in conformity with information (a) furnished in writing to
the Company by or on behalf of any Underwriter expressly for use therein or (b) contained in the
Statement of Eligibility and Qualification on Form T-1 furnished by the Trustee and filed as an
exhibit to the Registration Statement.
If any action or claim shall be brought or asserted against any Underwriter or any director,
officer or employee of any Underwriter or any person so controlling an Underwriter in respect of
which indemnity may be sought from the Company, such Underwriter, director, officer or employee or
controlling person shall promptly notify the Company in writing, and the Company shall assume the
defense thereof, including the employment of counsel and the payment of all expenses. Any
Underwriter or any such director, officer or employee or controlling person shall have the right to
employ separate counsel in any such action and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Underwriter or such director, officer,
employee or controlling person unless (a) the employment thereof has been specifically authorized
by the Company in writing, (b) the Company has failed to assume the defense and employ counsel or
(c) the named parties to any such action (including any impleaded parties) include both such
Underwriter or such director, officer or employee or controlling person and the Company and such
Underwriter or such director, officer or employee or controlling person shall have been advised by
such counsel that there are one or more material legal defenses available to it which are different
from or additional to those available to the Company (in which case the Company shall not have the
right to assume the defense of such action on behalf of such Underwriter or such director, officer
or employee or controlling person, it being understood, however, that the Company shall not, in
connection with any one such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (other than local counsel,
if required), at any time for all such Underwriters, directors, officers or employees and
controlling persons, which firm shall be designated in writing by you, and that all
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such reasonable fees and expenses shall be reimbursed as they are incurred). The Company
shall not be liable for any settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld or delayed), but if settled with the written
consent of the Company, or if there be a final judgment for the plaintiff in any such action, the
Company agrees to indemnify and hold harmless any Underwriter and any such director, officer or
employee or controlling person from and against any loss or liability by reason of such settlement
or judgment.
Each Underwriter agrees to indemnify and hold harmless the Company and its directors, officers
and employees and each person, if any, controlling any such person within the meaning of Section 15
of the Act or Section 20 of the Exchange Act to the same extent in the foregoing indemnity from the
Company to each Underwriter, but only with respect to information relating to such Underwriter
furnished to the Company in writing by it, or on its behalf, expressly for use in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus, the Prospectus, or in any amendment or supplement thereto. In case any action or claim
shall be brought against the Company or its directors, officers or employees or any such
controlling person in respect of which indemnity may be sought against any Underwriter, such
Underwriter shall have the rights and duties given to the Company, and the Company or its
directors, officers or employees or any such controlling person shall have the rights and duties
given to the Underwriters by the preceding paragraph. The Underwriters shall not be liable for any
settlement of any such action effected without their written consent (which consent shall not be
unreasonably withheld or delayed), but if settled with the written consent of the Underwriters, or
if there be a final judgment for the plaintiff in any such action, the Underwriters agree to
indemnify and hold harmless the Company and such directors, officers, or employees or controlling
persons from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in this Article VI is unavailable to an indemnified party
under the fourth or sixth paragraph of this Article VI in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such indemnified party as
a result of such losses, claims, damages, liabilities or expenses (a) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Securities or (b) if the allocation provided by
clause (a) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (a) above but also the relative fault
of the Company on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering
14
of Securities (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault of the Company on the one hand
and of the Underwriters on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or by the Underwriters and the
parties relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Article VI were to be determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with defending any such action or claim.
Notwithstanding the provisions of this Article VI, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters obligations to
contribute pursuant to this Article VI are several in proportion to their respective underwriting
obligations and not joint.
The indemnity and contribution agreements contained in this Article VI and the representations
and warranties of the Company set forth in this Agreement shall remain operative and in full force
and effect, regardless of (a) any investigation made by or on behalf of any person, (b) acceptance
of any Securities and payment therefor hereunder and (c) any termination of this Agreement. A
successor of any Underwriter or of the Company or of its directors and officers or of any such
controlling person, as the case may be, shall be entitled to the benefits of the indemnity,
reimbursement and contribution agreements contained in this Article VI.
VII.
In the event that on or prior to the Closing Date, (a) trading on the New York Stock Exchange
or the American Stock Exchange shall have been wholly suspended, (b) minimum or maximum prices for
trading shall have been fixed, or maximum ranges for prices for securities shall have been
required, on the New
15
York Stock Exchange or the American Stock Exchange, by the New York Stock Exchange or the
American Stock Exchange or by order of the Commission or any other governmental authority having
jurisdiction, (c) a banking moratorium shall have been declared by Federal or New York authorities,
(d) a material disruption shall have occurred in commercial banking or securities settlement or
clearance services in the United States or (e) an outbreak or escalation of hostilities or a
declaration by the United States of a national emergency or war or other calamity or crisis shall
have occurred since the execution of this Agreement which, in your judgment, makes it impractical
or inadvisable to proceed with the completion of the sale of or any payment for the Securities,
this Agreement and all obligations of the Underwriters hereunder may be canceled at, or any time
prior to, the Closing Date by you, without liability on the part of any Underwriter to the Company.
Notice of such cancellation may be given to the Company by telegraph or telephone but shall be
subsequently confirmed by letter.
VIII.
If any of you shall fail or refuse to purchase Underwriters Securities which you have agreed
to purchase hereunder, and the aggregate principal amount of Underwriters Securities which such
defaulting Underwriter agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of Securities, the other Underwriters shall be obligated, in the
proportions which the principal amount of Securities set forth opposite their names in Schedule II
hereto bears to the aggregate principal amount of Securities, or in such other proportions as you
may specify, to purchase the Underwriters Securities which such defaulting Underwriter agreed but
failed or refused to purchase; provided, that in no event shall the principal amount of Securities
which any Underwriter has agreed to purchase pursuant to Article I of this Agreement be increased
pursuant to this paragraph by an amount in excess of one-ninth of such principal amount of
Securities without the written consent of such Underwriter. If any of you shall fail or refuse to
purchase Underwriters Securities and the aggregate principal amount of Underwriters Securities
with respect to which such default occurs is more than said one-tenth of the aggregate principal
amount of Securities and arrangements satisfactory to you and the Company for the purchase of such
Underwriters Securities are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the Company. In any
such case either you or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of any such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the
16
Company shall be unable to perform its obligations under this Agreement, the Company will
reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect
to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of
their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the
transactions contemplated hereby.
The Agreement herein set forth has been and is made solely for the benefit of the several
Underwriters and the Company and of the controlling persons, directors and officers referred to in
Article VI hereof and their respective successors and assigns or personal representatives, and no
other person shall acquire or have any right under or by virtue of this Agreement. The terms
successor or successors and assigns as used in this Agreement shall not include a purchaser of
any of the Securities from any of the several Underwriters in his or its status as such purchaser.
This Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same
instrument.
This Agreement shall be governed by and construed in accordance with the laws of the State of
New York.
17
Very truly yours, MASCO CORPORATION |
||||
By: | /s/ John G. Sznewajs | |||
Name: | John G. Sznewajs | |||
Title: | Vice President, Treasurer and Chief Financial Officer | |||
Accepted, as of the date set
forth in Schedule I hereto
forth in Schedule I hereto
Acting on behalf of themselves and
the several Underwriters named in Schedule II hereto.
the several Underwriters named in Schedule II hereto.
Banc of America Securities LLC | ||||
By:
|
/s/ Banc of America Securities LLC
|
|||
Title: Managing Director | ||||
Citigroup Global Markets Inc. | ||||
By:
|
/s/ Citigroup Global Markets Inc. | |||
Name: Brian Bednarski | ||||
Title: Managing Director | ||||
J.P. Morgan Securities Inc. | ||||
By:
|
/s/ J.P. Morgan Securities Inc. | |||
Name: Stephen L. Sheiner | ||||
Title: Executive Director |
SCHEDULE I
Underwriting Agreement dated March 5, 2010
Registration Statement No. 333-165047
Representatives and addresses:
|
Banc of America Securities LLC Bank of America Tower One Bryant Park New York, NY 10036 |
|
Citigroup Global Markets Inc. 388/390 Greenwich Street New York, NY 10013 |
||
J.P. Morgan Securities Inc. 270 Park Ave. New York, NY 10017 |
||
Certain Terms of the Securities |
||
Title of Securities:
|
7.125% Notes due 2020 | |
Principal Amount of Securities:
|
$500,000,000 | |
Title of Indenture:
|
Indenture dated as of February 12, 2001 as amended and supplemented by the Supplemental Indenture dated as of November 30, 2006 between Masco Corporation and The Bank of New York Mellon Trust Company, N.A. | |
Trustee:
|
The Bank of New York Mellon Trust Company, N.A. | |
Maturity:
|
March 15, 2020 | |
Interest Rate:
|
7.125% per annum |
I-1
Redemption Provisions:
|
The Securities will be subject to make whole redemption as set forth in the preliminary prospectus supplement dated March 5, 2010 relating to the Securities. | |
Interest Payment Dates:
|
March 15 and September 15, commencing September 15, 2010 | |
Change of Control Put:
|
The Securities will be subject to a change of control repurchase event as set forth in the preliminary prospectus dated March 5, 2010 relating to the Securities. | |
Other principal terms, if any:
|
The Securities will be subject to defeasance and covenant defeasance as provided in the Indenture. | |
Purchase Price:
|
98.998% of the principal amount of the Securities, plus accrued interest, if any, on the Securities from March 10, 2010 |
The Underwriters Securities are to be offered to the public at the Public Offering Price specified
below, and to dealers at prices which represent concessions not in excess of the Dealer Concession
set forth below, and any Underwriter may allow and such dealers may reallow concessions not in
excess of the Reallowance Concession set forth below.
Public Offering Price:
|
99.998% of the principal amount of the Securities, plus accrued interest, if any, on the Securities from March 10, 2010 | |
Dealer Concession:
|
0.60% of the principal amount of the Securities | |
Reallowance Concession:
|
0.25% of the principal amount of the Securities | |
Closing
|
Davis Polk & Wardwell LLP, 1600 El Camino Real, Menlo Park, California 94025, at 10:00 AM, Eastern time, on March 10, 2010 |
I-2
The foregoing terms set forth on this Schedule I are hereby confirmed.
MASCO CORPORATION |
||||
By: | /s/ John G. Sznewajs | |||
Name: | John G. Sznewajs | |||
Title: | Vice President, Treasurer and Chief Financial Officer | |||
The foregoing terms set
forth on this Schedule I are hereby confirmed.
Acting on behalf of themselves and
the several Underwriters named in Schedule II hereto.
the several Underwriters named in Schedule II hereto.
Banc of America Securities LLC | ||||
By:
|
/s/ Banc of America Securities LLC
|
|||
Title: Managing Director | ||||
Citigroup Global Markets Inc. | ||||
By:
|
/s/ Citigroup Global Markets Inc. | |||
Name: Brian Bednarski | ||||
Title: Managing Director | ||||
J.P. Morgan Securities Inc. | ||||
By:
|
/s/ J.P. Morgan Securities Inc. | |||
Name: Stephen L. Sheiner | ||||
Title: Executive Director |
SCHEDULE II
Underwriter | Principal Amount | |||
Banc of America Securities LLC |
$ | 150,000,000 | ||
Citigroup Global Markets Inc. |
$ | 150,000,000 | ||
J.P. Morgan Securities Inc. |
$ | 150,000,000 | ||
Daiwa Securities America Inc. |
$ | 10,000,000 | ||
BNP Paribas Securities Corp. |
$ | 5,000,000 | ||
Comerica Securities, Inc. |
$ | 5,000,000 | ||
Commerzbank Capital Markets Corp. |
$ | 5,000,000 | ||
KeyBanc Capital Markets Inc. |
$ | 5,000,000 | ||
Mitsubishi UFJ Securities (USA), Inc. |
$ | 5,000,000 | ||
PNC Capital Markets LLC |
$ | 5,000,000 | ||
RBC Capital Markets Corporation |
$ | 5,000,000 | ||
SunTrust Robinson Humphrey, Inc. |
$ | 5,000,000 | ||
Total |
$ | 500,000,000 | ||
II-1
SCHEDULE III
Not applicable.
III-1
SCHEDULE IV
Term Sheet
MASCO CORPORATION
$500,000,000 7.125% NOTES DUE 2020
$500,000,000 7.125% NOTES DUE 2020
ISSUER:
|
Masco Corporation | |
TITLE OF SECURITIES:
|
7.125% Notes due 2020 | |
RATINGS*:
|
Ba2(stable) by Moodys Investors Service, Inc and BBB(stable) by Standard & Poors Rating Services | |
TRADE DATE:
|
March 5, 2010 | |
SETTLEMENT DATE (T+3):
|
March 10, 2010 | |
MATURITY DATE:
|
March 15, 2020 | |
AGGREGATE PRINCIPAL AMOUNT OFFERED:
|
$500,000,000 | |
PRICE TO PUBLIC (ISSUE PRICE):
|
99.998% | |
BENCHMARK:
|
UST 3.625% due February 15, 2020 | |
BENCHMARK TREASURY PRICE AND YIELD:
|
99-14+; 3.691% | |
YIELD TO MATURITY:
|
7.125% | |
SPREAD TO TREASURY:
|
+343.4 basis points | |
INTEREST RATE:
|
7.125% per annum | |
INTEREST PAYMENT DATES:
|
Semi-annually on each March 15 and September 15; commencing on September 15, 2010 | |
DENOMINATIONS:
|
$2,000 by $1,000 | |
OPTIONAL REDEMPTION:
|
Make-whole call at any time at the greater of 100% of the principal amount of the notes being redeemed or discounted present value at the treasury rate plus 50 basis points |
IV-1
CHANGE OF CONTROL:
|
Upon the occurrence of a Change of Control Triggering Event, we will be required to make an offer to purchase the notes at a price equal to 101% of their principal amount plus accrued and unpaid interest to the date of repurchase. | |
JOINT BOOKRUNNERS:
|
Banc of America Securities LLC, Citigroup Global Markets Inc., J.P. Morgan Securities Inc. | |
CO-MANAGERS:
|
Daiwa Securities America Inc., BNP Paribas Securities Corp., Comerica Securities, Inc., Commerzbank Capital Markets Corp., KeyBanc Capital Markets Inc., Mitsubishi UFJ Securities (USA), Inc., PNC Capital Markets LLC, RBC Capital Markets Corporation, SunTrust Robinson Humphrey, Inc. | |
CUSIP:
|
574599 BG0 |
THE ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH THE SEC FOR THE
OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST, YOU SHOULD READ THE PROSPECTUS IN
THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS THE ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE
INFORMATION ABOUT THE ISSUER AND THIS OFFERING. YOU MAY GET THESE DOCUMENTS FOR FREE BY VISITING
EDGAR ON THE SEC WEB SITE AT WWW.SEC.GOV. ALTERNATIVELY, THE ISSUER, ANY UNDERWRITER OR ANY DEALER
PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS IF YOU REQUEST IT BY CALLING
BANC OF AMERICA SECURITIES LLC TOLL-FREE AT 1-800-294-1322 , CITIGROUP GLOBAL MARKETS INC.
TOLL-FREE AT 1-877- 858-5407 OR J.P. MORGAN SECURITIES INC. COLLECT AT 1-212-834-4533.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND
SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT
OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
* | Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. |
IV-2