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EXHIBIT 10.2
CONFIDENTIAL
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MMI PRODUCTS, INC.
$30,000,000
11 1/4% Series C Senior Subordinated Notes due 2007
Registration Rights Agreement
February 12, 1999
BEAR, XXXXXXX & CO. INC.
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of February 12, 1999 by and between MMI Products, Inc., a
Delaware corporation (the "Company") and Bear, Xxxxxxx & Co. Inc. (the "Initial
Purchaser"), who has agreed to purchase the Company's 11 1/4% Series C Senior
Notes due 2007 (the "Series C Notes") pursuant to the Purchase Agreement (as
defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
February 9, 1999 (the "Purchase Agreement"), by and between the Company and the
Initial Purchaser. In order to induce the Initial Purchaser to purchase the
Series C Notes, the Company has agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligation of the Initial Purchaser set forth in Section 2 of
the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummation: A Registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (iii) the delivery by the Company
to the Registrar under the Indenture of Series B Notes in the same aggregate
principal amount as the aggregate principal amount of Series C Notes that were
properly tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Series C Notes, each Interest
Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Offer: The registration by the Company under the Act of the
Series B Notes pursuant to a Registration Statement pursuant to which the
Company offers the Holders of all outstanding Transfer Restricted Notes the
opportunity, subject to the provisions of this Agreement, to exchange all such
outstanding Transfer Restricted Notes
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held by such Holders for Series B Notes in an aggregate principal amount equal
to the aggregate principal amount of the Transfer Restricted Notes tendered in
such exchange offer by such Holder.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Holder: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of April 16, 1997, between the
Company and U.S. Trust Company of Texas, N.A., as trustee (the "Trustee"),
pursuant to which the Notes are to be issued, as amended or supplemented from
time to time in accordance with the terms thereof.
Initial Purchaser: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Series B Notes and the Series C Notes, collectively.
Person: An individual, partnership, limited liability company,
corporation, trust, association or other unincorporated organization, or a
government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
Record Holder: With respect to any Damages Payment Date relating to
Notes, each Person who is a Holder of Notes on the record date with respect to
the Interest Payment Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company
relating to (a) an offering of Series B Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Notes pursuant to the
Shelf Registration Statement, which is filed pursuant to the provisions of this
Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
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Series B Notes: The Company's 11 1/4% Series B Senior Notes due 2007 to
be issued pursuant to the Indenture in the Exchange Offer.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Specified Participant: In the case of (a) the Shelf Registration
Statement (or any amendment or supplement thereto), any selling Holder and the
underwriter(s), if any, with respect to the Transfer Restricted Notes that are
the subject thereof and (b) the Exchange Offer Registration Statement (or any
amendment or supplement thereto), any Broker-Dealer that has given written
notice to the Company that such Broker-Dealer intends to participate in the
Exchange Offer or has participated in the Exchange Offer.
TIA: The Trust Indenture Act of 1939, as in effect on the date of the
Indenture.
Transfer Restricted Notes: Each Series C Note until the earliest to
occur of (i) the date on which such Series C Note has been exchanged by a person
other than a Broker-Dealer for a Series B Note in the Exchange Offer, (ii)
following the exchange by a Broker-Dealer in the Exchange Offer of a Series C
Note for a Series B Note, the date on which such Series B Note is sold to a
purchaser who receives from such Broker-Dealer on or prior to the date of such
sale a copy of the Prospectus contained in the Exchange Offer Registration
Statement, (iii) the date on which such Series C Note has been effectively
registered under the Act and disposed of in accordance with the Shelf
Registration Statement or (iv) the date on which such Series C Note is
distributed to the public pursuant to Rule 144 under the Act or may be
distributed to the public pursuant to Rule 144(k) under the Act.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Notes. The securities entitled to the benefits
of this Agreement are the Transfer Restricted Notes.
(b) Holders of Transfer Restricted Notes. A Person is deemed to be a
holder of Transfer Restricted Notes (each, a "Holder") whenever such Person owns
Transfer Restricted Notes of record.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with), the Company shall (i) cause to be filed with the
Commission as soon as practicable after the Closing Date, but in no event later
than 90 days after the Closing Date, a Registration Statement under the Act
relating to the Series B Notes and the
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Exchange Offer, (ii) use its best efforts to cause such Registration Statement
to become effective at the earliest possible time, but in no event later than
180 days after the Closing Date, (iii) in connection with the foregoing, file
(A) all pre-effective amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to become effective, (B)
if applicable a post-effective amendment to such Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings in connection
with the registration and qualification of the Series B Notes to be made under
the Blue Sky laws of such jurisdictions as are necessary to permit Consummation
of the Exchange Offer, and (iv) upon the effectiveness of such Registration
Statement, commence the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting registration of the Series B Notes to be offered in
exchange for the Transfer Restricted Notes and to permit resales of Notes held
by Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company shall cause the Exchange Offer Registration Statement
to be effective continuously and shall keep the Exchange Offer open for a period
of not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 business days. The Company shall cause
the Exchange Offer to comply with all applicable federal and state securities
laws. No securities other than the Notes shall be included in the Exchange Offer
Registration Statement. The Company shall use its best efforts to cause the
Exchange Offer to be Consummated on the earliest practicable date after the
Exchange Offer Registration Statement has become effective and not later than 30
business days thereafter.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Series C Notes that are Transfer
Restricted Notes and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Notes acquired directly from the Company) may exchange such Series C
Notes pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed
to be an "underwriter" within the meaning of the Act and must, therefore,
deliver a prospectus meeting the requirements of the Act in connection with any
resales of the Series B Notes received by such Broker-Dealer in the Exchange
Offer, which prospectus delivery requirement may be satisfied by the delivery by
such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also contain
all other material information with respect to such resales by Broker-Dealers
that the Commission may require in order to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any such Broker-Dealer
or disclose the amount of Notes held by any such Broker-Dealer except to the
extent required by the Commission as a result of a change in policy after the
date of this Agreement.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for
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resales of Notes acquired by Broker-Dealers for their own accounts as a result
of market-making activities or other trading activities, and to ensure that it
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of 180 days from the date on which the Exchange Offer Registration
Statement is declared effective.
The Company shall provide sufficient copies of the latest version of
such Prospectus to Broker-Dealers promptly upon request at any time during such
one-year period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not available to
any Holder or may not be consummated because, in either case, it would violate
applicable securities laws or because the applicable interpretations of the
staff of the Commission would not permit the Company to effect the Exchange
Offer (after the procedures set forth in Section 6(a) below have been complied
with) or (ii) the Company has not Consummated the Exchange Offer within 210 days
of the Closing Date, then the Company shall use its reasonable best efforts to:
(x) cause to be filed a shelf registration statement
pursuant to Rule 415 under the Act, which may be an amendment
to the Exchange Offer Registration Statement (in either event,
the "Shelf Registration Statement") on or prior to the earlier
to occur of (1) the 60th day after the date on which the
Company determines that it is not required to file the
Exchange Offer Registration Statement or to consummate the
Exchange Offer and (2) the 240th day after the Closing Date
(such earliest date being the "Shelf Filing Deadline"), which
Shelf Registration Statement shall provide for resales of all
Transfer Restricted Notes the Holders of which shall have
provided the information required pursuant to Section 4(b)
hereof; and
(y) cause such Shelf Registration Statement to be
declared effective by the Commission on or before the 75th day
after the Shelf Filing Deadline.
The Company shall use its best efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended as required by the provisions
of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is
available for resales of Notes by the Holders of Transfer Restricted Notes
entitled to the benefit of this Section 4(a), and to ensure that it conforms
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of at
least two years following the Closing Date.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Notes may include
any of its Transfer Restricted Notes in any Shelf Registration Statement
pursuant to this Agreement
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unless and until such Holder furnishes to the Company in writing, within 20
business days after receipt of a request therefor, such information as the
Company may reasonably request for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. No Holder of
Transfer Restricted Notes shall be entitled to Liquidated Damages pursuant to
Section 5 hereof unless and until such Holder shall have used its best efforts
to provide all such reasonably requested information. Each Holder as to which
any Shelf Registration Statement is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this Agreement is
not filed with the Commission on or prior to the date specified for such filing
in this Agreement, (ii) any of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (iii) the
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement (assuming that the Company is required pursuant to Section 3 of this
Agreement to file the Exchange Offer Registration Statement and to consummate
the Exchange Offer) or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose (during the period that
such Registration Statement is required to be kept effective or usable for its
intended purpose) without being succeeded immediately by a post-effective to
such Registration Statement that causes such failure and that is itself
immediately declared effective (each such event referred to in clauses (i)
through (iv), a "Registration Default"), the Company hereby agrees to pay
liquidated damages to each Holder of Transfer Restricted Notes affected by such
Registration Default on each Interest Payment Date accruing from and after the
date of each Registration Default, and shall continue to accrue thereafter until
such Registration Default has been cured or waived, at a rate equal to 0.25% per
annum of the principal amount of Notes during the first 90-day period
immediately following the occurrence of such Registration Default, which rate
shall increase by an additional 0.25% per annum on the first day of each
subsequent 90-day period up to a maximum rate equal to 1.0% per annum. All
accrued liquidated damages shall be paid to Record Holders by the Company in the
manner provided in the Indenture. Following the cure of all Registration
Defaults relating to any particular Transfer Restricted Notes, the accrual of
liquidated damages with respect to such Transfer Restricted Notes will cease.
All obligations of the Company set forth in the preceding paragraph
that are outstanding with respect to any Transfer Restricted Note at the time
such security ceases to be a Transfer Restricted Note shall survive until such
time as all such obligations with respect to such security shall have been
satisfied in full.
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SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company shall comply with all of the provisions of Section
6(c) below, shall use its best efforts to effect such exchange to permit the
sale of Transfer Restricted Notes being sold in accordance with the intended
method or methods of distribution thereof, and shall comply with all of the
following provisions:
(i) If in the reasonable opinion of counsel to the
Company there is a significant question as to whether the
Exchange Offer is permitted by applicable law, the Company
hereby agrees to seek a no-action letter or other favorable
decision from the Commission allowing the Company to
Consummate an Exchange Offer for such Series C Notes. The
Company hereby agrees to pursue the issuance of such a
decision to the Commission staff level but shall not be
required to take commercially unreasonable action to effect a
change of Commission policy. The Company hereby agrees,
however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis
prepared by counsel to the Company setting forth the legal
bases, if any, upon which such counsel has concluded that such
an Exchange Offer should be permitted and (C) diligently
pursue a resolution (which need not be favorable) by the
Commission staff of such submission.
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement, each
Holder of Transfer Restricted Notes shall furnish, upon the
request of the Company, prior to the Consummation thereof, a
written representation to the Company (which may be contained
in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not
an affiliate of the Company, (B) it is not engaged in, and
does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a
distribution of the Series B Notes to be issued in the
Exchange Offer and (C) it is acquiring the Series B Notes in
its ordinary course of business. In addition, all such Holders
of Transfer Restricted Notes shall otherwise cooperate in the
Company's preparations for the Exchange Offer. Each Holder
will be required to acknowledge and agree (as set forth in the
letter of transmittal contemplated by the Exchange Offer
Registration Statement) that, if it is a Broker-Dealer or if
such Holder intends to use the Exchange Offer to participate
in a distribution of the securities to be acquired in the
Exchange Offer, such Holder (1) could not under Commission
policy as in effect on the date of this Agreement rely on the
position of the Commission enunciated in Xxxxxx Xxxxxxx and
Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993,
and similar no-action letters (including any no-action letter
obtained pursuant to clause (i) above), and
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(2) must comply with the registration and prospectus delivery
requirements of the Act in connection with a secondary resale
transaction and that such a secondary resale transaction
should be covered by an effective registration statement
containing the selling security holder information required by
Item 507 or 508, as applicable, of Regulation S-K, if the
resales are of Series B Notes obtained by such Holder in
exchange for Series C Notes acquired by such Holder directly
from the Company.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company shall, if requested by the
Commission, provide a supplemental letter to the Commission
(A) stating that the Company is registering the Exchange Offer
in reliance on the position of the Commission enunciated in
Exxon Capital Holdings Corporation (available May 13, 1988),
Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and, if
applicable, any no-action letter obtained pursuant to clause
(i) above and (B) including a representation that the Company
has not entered into any arrangement or understanding with any
Person to distribute the Series B Notes to be received in the
Exchange Offer and that, to the best of the Company's
information and belief, each Holder participating in the
Exchange Offer is acquiring the Series B Notes in its ordinary
course of business and has no arrangement or understanding
with any Person to participate in the distribution of the
Series B Notes received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall comply with all the provisions of
Section 6(c) below and shall use its best efforts to effect such registration to
permit the sale of the Transfer Restricted Notes being sold in accordance with
the intended method or methods of distribution thereof and, pursuant thereto,
the Company will as expeditiously as possible prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Notes in accordance with the intended method or methods
of distribution thereof.
(c) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Notes (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Notes by
Broker-Dealers) the Company shall:
(i) use its best efforts to keep such Registration
Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or
4 of this Agreement, as applicable; upon the occurrence of any
event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable
for resale of Transfer Restricted Notes during the period
required by this Agreement,
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the Company shall file promptly an appropriate amendment to
such Registration Statement, in the case of clause (A),
correcting any such misstatement or omission, and, in the case
of either clause (A) or (B), use its best efforts to cause
such amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in
Section 3 or 4 hereof, as applicable, or such shorter period
as will terminate when all Transfer Restricted Notes covered
by such Registration Statement have been sold; cause the
Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act, and to comply fully with the
applicable provisions of Rules 424 and 430A under the Act in a
timely manner; and comply with the provisions of the Act with
respect to the disposition of all securities covered by such
Registration Statement during the applicable period in
accordance with the intended method or methods of distribution
by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the Specified Participants promptly and,
if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement
or post-effective amendment has been filed, and, with respect
to any Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or
of the suspension by any state securities commission of the
qualification of the Transfer Restricted Notes for offering or
sale in any jurisdiction, or the initiation of any proceeding
for any of the preceding purposes, (D) of the existence of any
fact or the happening of any event that makes any statement of
a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the
statements of material fact therein not misleading. If at any
time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Notes under state
securities or Blue Sky laws, the Company shall use its best
efforts to obtain the withdrawal or lifting of such order at
the earliest possible time;
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(iv) furnish to each Specified Participant before
filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments
or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference
after the initial filing of such Registration Statement),
which documents will be subject to the review of such Holders
and underwriter(s), if any, for a period of at least three
business days, and the Company shall not file any such
Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to
which a selling Holder or Transfer Restricted Notes covered by
such Registration Statement or the underwriter(s), if any,
shall reasonably object within five business days after the
receipt thereof. A selling Holder or underwriter, if any,
shall be deemed to have reasonably objected to such filing if
such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains a
material misstatement or omission;
(v) promptly prior to the filing of any document that
is to be incorporated by reference into a Registration
Statement or Prospectus, provide copies of such document to
each Specified Participant, make the Company's representatives
available for discussion of such document and other customary
due diligence matters, and include such information in such
document prior to the filing thereof as such selling Holders
or underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for
inspection by the selling Holders, any managing underwriter
participating in any disposition pursuant to the Shelf
Registration Statement, and any attorney or accountant
retained by such selling Holders or any managing
underwriter(s), all relevant financial and other records,
pertinent corporate documents and properties of the Company
and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such
Holder, underwriter, attorney or accountant in connection with
the Shelf Registration Statement subsequent to the filing
thereof and prior to its effectiveness;
(vii) if requested by any Specified Participant,
promptly incorporate in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling
Holders and underwriter(s), if any, may reasonable request to
have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the
Transfer Restricted Notes, information with respect to the
principal amount of Transfer Restricted Notes,
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information with respect to the principal amount of Transfer
Restricted Notes being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the
offering of the Transfer Restricted Notes to be sold in such
offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable
after the Company is notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment;
(viii) cause the Transfer Restricted Notes covered by
the Registration Statement to be rated with the appropriate
rating agencies, if so requested by the Holders of a majority
in aggregate principal amount of Notes covered thereby or the
managing underwriter(s), if any;
(ix) furnish to each Specified Participant, without
charge, at least one conformed copy of the Registration
Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits
incorporated therein by reference);
(x) deliver to each Specified Participant, without
charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; the Company
hereby consents to the use of the Prospectus and any amendment
or supplement thereto by each of the selling Holders and each
of the underwriter(s), if any, in connection with the offering
and the sale of the Transfer Restricted Notes covered by the
Prospectus or any amendment or supplement thereto;
(xi) In connection with an underwritten offering of
Transfer Restricted Notes pursuant to a Shelf Registration
Statement, enter into an underwriting agreement as is
customary in underwritten offerings and take all such other
actions as are reasonably requested by the managing
underwriter(s) in order to expedite or facilitate the
registration or the disposition of such Transfer Restricted
Notes, and in such connection, (i) make such representations
and warranties to the underwriters, with respect to the
business of the Company and its subsidiaries, if any, and the
Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings, and confirm the same
if and when requested; (ii) obtain an opinion of counsel to
the company and updates thereof in form and substance
reasonably satisfactory to the managing underwriters,
addressed to the underwriters covering the matters customarily
covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by
underwriters; (iii) obtain "cold comfort" letters and updates
thereof in form and substance reasonably satisfactory to the
managing
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underwriters from the independent certified public
accountant(s) of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of
the Company or of any business acquired by the Company for
which financial statements and financial data are, or are
required to be, included in the Registration Statement),
addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as may be
reasonably requested by underwriters; and (iv) if an
underwriting agreement is entered into, the same shall contain
indemnification and contribution provisions and procedures no
less favorable than those set forth in Sections 8 and 9 hereof
(or such other provisions and procedures acceptable to Holders
of a majority in aggregate principal amount of Transfer
Restricted Notes covered by such Registration Statement and
the managing underwriter(s) or agents) with respect to all
parties to be indemnified pursuant to said Section. The above
shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder. In
addition, notwithstanding anything herein to the contrary, in
connection with any other offering of Transfer Restricted
Notes pursuant to a Shelf Registration Statement, the Company
shall obtain those items specified in clauses (ii) and (iii)
of the foregoing sentence concurrently with the effectiveness
of the Shelf Registration Statement and any post-effective
amendments thereto;
(xii) prior to any public offering of Transfer
Restricted Notes pursuant to the Shelf Registration Statement,
cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted
Notes under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s) may
request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Notes covered by the Shelf
Registration Statement; provided, however, that the Company
shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any
action that would subject it to the service of process in
suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xiii) issue, upon the request of any Holder of
Series C Notes covered by the Shelf Registration Statement,
Series B Notes, having an aggregate principal amount equal to
the aggregate principal amount of Series C Notes surrendered
to the Company by such Holder in exchange therefor or being
sold by such Holder; such Series B Notes to be registered in
the name of such Holder or in the name of the purchaser(s) of
such Notes, as the case may be; in return, the Series C Notes
held by such
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Holder shall be surrendered to the Company for cancellation;
(xiv) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted
Notes to be sold and not bearing any restrictive legends; and
enable such Transfer Restricted Notes to be in such
denominations and registered in such names and the Holders or
underwriter(s), if any, may request at least two business days
prior to any sale of Transfer Restricted Notes made by such
underwriter(s);
(xv) use its best efforts to cause the Transfer
Restricted Notes covered by the Registration Statement to be
registered with or approved by such other governmental
agencies of authorities as may be necessary to enable the
seller or sellers thereof or the underwriter(s), if any, to
consummate the disposition of such Transfer Restricted Notes,
except as may be required solely as a consequence of the
nature of such Seller's business (in which case the Company
will cooperate in all reasonable respects);
(xvi) if any fact or event contemplated by clause
(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration
Statement or related Prospective or any document incorporated
therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of Transfer
Restricted Notes, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading;
(xvii) provide a CUSIP number for all Transfer
Restricted Notes not later than the effective date of the
Registration Statement and provide the Trustee under the
Indenture with printed certificates for the Transfer
Restricted Notes which are in a form eligible for deposit with
The Depository Trust Company;
(xviii) cooperate and assist in any filings required
to be made with the NASD and in the performance of any due
diligence investigation by any underwriter (including any
"qualified independent underwriter") that is required in
accordance with the rules and regulations of the NASD;
(xix) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and
make generally available to its security holders, as soon as
practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited) for the
twelve-month period (A) commencing at the end of any fiscal
quarter in which Transfer Restricted Notes are sold to
underwriters in a firm or best efforts Underwritten Offering
or (B) if not sold to
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underwriters in such an offering, beginning with the first
month of the Company's first fiscal quarter commencing after
the effective date of the Registration Statement;
(xx) cause the Indenture to be qualified under the
TIA not later than the effective date of the first
Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the
Holders of Notes to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its
best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other
forms and documents required to be filed with the Commission
to enable such Indenture to be so qualified in a timely
manner;
(xxi) use its best efforts to cause all Transfer
Restricted Notes covered by the Registration Statement to be
listed on each securities exchange on which similar securities
issued by the Company are then listed if requested by the
Holders of a majority in aggregate principal amount of Series
C Notes or the managing underwriter(s), if any; and
(xxii) provide promptly to each Holder upon request
each document filed with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Note that,
upon receipt of any notice from the Company of the existence of any fact of the
kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Notes pursuant to the applicable
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof, or
until it is advised in writing (the "Advice") by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in this Prospectus. If
so desired by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted Notes
that was current at the time of receipt of such notice. In the event the Company
shall give any such notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall
be extended by the number of days during the period from the date of such notice
to the date when each selling Holder covered by such Registration Statement
shall have received the copies of the supplemented or amended Prospectus
contemplated by Section (6)(c)(xvi) hereof or shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a
Registration
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Statement becomes effective, including without limitation: (i) all registration
and filing fees and expenses (including filing made by any Initial Purchaser or
Holder with the NASD (and, if applicable, the fees and expenses of any
"qualified independent underwriter" and its counsel that may be required by the
rules and regulations of the NASD)); (ii) all fees and expenses of compliance
with federal securities and state Blue Sky or securities law; (iii) all expenses
of printing (including printing certificates for the Series B Notes to be issued
in the Exchange Offer and printing of Prospectuses in the case of an
Underwritten Offering, if required by the managing underwriter(s)), messenger
and delivery services and telephone; (iv) all fees and disbursements of counsel
for the Company (subject to reimbursement provisions in the Purchase Agreement)
and, in the context specified in Section 7(b) below, the Holders and Transfer
Restricted Notes; (v) all application and filing fees in connection with listing
Notes on a national securities exchange or automated quotation system pursuant
to the requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company (including the expenses of any
special audit and comfort letters required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with the Shelf Registration Statement, if applicable,
the Company will reimburse the Initial Purchaser and the Holders of Transfer
Restricted Notes being resold pursuant to the "Plan of Distribution" contained
therein, for the reasonable fees and disbursements of not more than one counsel,
who shall be Xxxxxx & Xxxxxxx or such other counsel as may be chosen by the
Holders of a majority in principal amount of the Transfer Restricted Notes for
whose benefit such Registration Statement is being prepared. Such Holders shall
be responsible for any and all other out-of-pocket expenses of the Holders of
Transfer Restricted Notes incurred in connection with the registration of the
Transfer Restricted Notes of such Holders.
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i) each Holder,
(ii) each person, if any, who controls any Holder within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act and (iii) the respective
officers, directors, partners and employees of any Holder or any controlling
person (any person referred to in clauses (i), (ii) or (iii) may hereinafter be
referred to as an "indemnified Holder"), to the fullest extent lawful, from and
against any and all losses, liabilities, claims, damages and expenses whatsoever
(including but not limited to reasonable attorneys' fees and any and all
expenses whatsoever reasonably incurred in investigating, preparing or defending
against any investigation or litigation, commended or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
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a material fact contained in any Registration Statement or Prospectus, or in any
supplement thereto or amendment thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company will not be liable in any such case to the extent, but only to
the extent, that any such loss, liability, claim, damage or expense arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission made therein upon and in conformity with written information furnished
to the Company by or on behalf of any of the Holders expressly for use therein.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have, including under this Agreement.
(b) Each Holder of Transfer Restricted Notes agrees, severally and not
jointly, to indemnify and hold harmless the Company, and each person, if any,
who controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act to the same extent as the foregoing indemnity from the
Company to each of the Indemnified Holders, but only with respect to information
relating to such Holder furnished in writing by such Holder for use in any
Registration Statement, or in any amendment thereof or supplement thereto:
provided, however, that in no case shall any selling Holder be liable or
responsible for any amount in excess of proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation. This indemnity will be in addition to any liability which the Holder
may otherwise have, including under this Agreement.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is
to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 6 or otherwise except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notified an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying parties
in connection with the defense of such action, (ii) the indemnifying parties
shall not have employed counsel to take charge of the defense of such action
within a reasonable time after notice of commencement of the action, or (iii)
such indemnified party or parties shall have been advised by counsel that there
may be legal defenses available to it or them which are different from or
additional to those available to the indemnifying parties (in which case the
indemnifying party or parties shall not have the right to direct the defense
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of such action on behalf of the indemnified party or parties), in any of which
events such fees and expenses of counsel shall be borne by the indemnifying
parties; provided, however, that the indemnifying party under subsection (a) or
(b) above shall only be liable for the legal expenses of one counsel (in
addition to any local counsel) for all indemnified parties in each jurisdiction
in which any claim or action is brought. Anything in this subsection to the
contrary notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its prior written consent;
provided that such consent was not unreasonably withheld.
SECTION 9. CONTRIBUTION
In order to provide for contribution in circumstances in which the
indemnification provided for in Section 8 is for any reason held to be
unavailable from the Company or is insufficient to hold harmless a party
indemnified thereunder, the Company, on the one hand, and the Holders on the
other hand, shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after the deducting in the case
of losses, claims, damages, liabilities and expenses suffered by the Company,
any contribution received by the Company from persons, other than a Holder, who
may also be liable for contribution, including persons who control the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act) to which the Company, or any Holder may be subject, in such proportion as
is appropriate to reflect the relative benefits received by the Company, on one
hand, and each Holder, on the other hand, from the offering of the Series C
Notes or, if such allocation is not permitted by applicable law or
indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 8, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company, on one hand, and the Holders on the other
hand, 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 one
hand, and the Holders, on the other hand, shall be deemed to be in the same
proportion as (i) the total proceeds from the offering of Series C Notes (net of
discounts but before deducting expenses) received by the Company and (ii) the
discounts and commissions received by the Initial Purchaser respectively. The
relative fault of the Company, on one hand, and of each Holder, on the other
hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or such Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each Holder of Transfer Restricted Notes agree that it would not
be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to above. Notwithstanding the
provisions of this Section 9, (i) in no case shall any Holder be required to
contribute any amount in excess of the amount by which the
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proceeds received by such Holder upon the sale of the Transfer Restricted Notes
giving rise to such obligation exceeds the amount of any damages which such
Holder has otherwise been required to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission and (ii) no person guilty of
fraudulent misrepresentation (with the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentations. For purposes of this Section 7, (A) each person,
if any, who controls the Initial Purchaser within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act and (B) the respective officers,
directors, partners, employees, representatives and agents of such Holder or any
controlling persons shall have the same rights to contribution as the Initial
Purchaser, and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act shall have the
same rights to contribution as the Company, subject in each case to clauses (i)
and (ii) of this Section 9. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this Section 9, notify such party or
parties from whom contribution may be sought, but the failure to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 9 or
otherwise. No party shall be liable for contribution with respect to any action
or claim settled without its prior written consent; provided that such written
consent was not unreasonably withheld.
SECTION 10. RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Notes remain outstanding and during any period in which the Company
is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, to make available to any Holder or beneficial owner of Transfer
Restricted Notes in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Notes from such Holder or beneficial
owner, in each case upon request, the information required by Rule 144A(d)(4)
under the Act in order to permit resales of such Transfer Restricted Notes
pursuant to Rule 144A.
SECTION 11. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted Notes on
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (b) completes and executes
all reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements.
SECTION 12. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Notes covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Notes in an Underwritten
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Offering. In any such Underwritten Offering, the investment banker or investment
bankers and manager or managers that will administer the offering will be
selected by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Notes included in such offering; provided that such
investment bankers and managers must be reasonably satisfactory to the Company.
SECTION 13. MISCELLANEOUS
(a) Remedies. The Company agrees that monetary damages (including the
liquidated damages contemplated thereby) would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company shall not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company shall not take any
action, or permit any change to occur, with respect to the Notes that would
materially and adversely affect the ability of the Holders to consummate any
Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereby may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Notes. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof the relates exclusively to the rights of
Holders whose securities are being tendered pursuant to the Exchange Offer and
that does not affect directly or indirectly the rights of other Holders whose
securities are not being tendered pursuant to such Exchange Offer may be given
by the Holders of a majority of the outstanding principal amount of Transfer
Restricted Notes being tendered or registered.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the Indenture;
and
(ii) if to the Company:
MMI Products, Inc.
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000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telecopier No.: 713/876-1648
Attention: Xxxxxx X. Xxxxx
With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopier No.: 214/746-7777
Attention: Xxxxxxx X. Xxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of transfer Restricted Notes; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Notes from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision is every other
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respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.
(k) Entire Agreement. This Agreement, constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof, and
supersede all prior agreements, understandings, negotiations, discussions,
representations and warranties, both oral and written, among the parties hereto
with respect to the subject matter hereof.
(Signature page to follow)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MMI PRODUCTS, INC.
By:
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Name:
Title:
BEAR, XXXXXXX & CO. INC.
By:
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Name:
Title:
S-1
