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EXHIBIT 4.2
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MMI PRODUCTS, INC.
$120,000,000
11 1/4% Series A Senior Subordinated Notes due 2007
Registration Rights Agreement
April 16, 1997
BEAR, XXXXXXX & CO. INC.
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This Registration Rights Agreement (this "Agreement") is made and
entered into as of April 16, 1997 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 A Senior
Notes due 2007 (the "Series A Notes") pursuant to the Purchase Agreement (as
defined below).
This Agreement is made pursuant to the Purchase Agreement, dated April
11, 1997 (the "Purchase Agreement"), by and between the Company and the Initial
Purchaser. In order to induce the Initial Purchaser to purchase the Series A
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 A Notes
that were properly tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Series A Notes, each
Interest Payment Date.
Effectiveness Target Date: As defined in Section 5.
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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 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.
Exempt Resales: The transactions in which the Initial Purchaser
proposes to sell the Series A Notes (i) to certain "qualified institutional
buyers" as such term is defined in Rule 144A under the Act, and (ii) to certain
institutional "accredited investors," as such term is defined in Rule
501(a)(1), (2), (3) and (7) of Regulation D under the Act ("Accredited
Institutions").
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of April ___, 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 such Indenture is 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 A Notes and the Series B Notes, collectively.
Person: An individual, partnership, corporation, trust or
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.
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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.
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 A Note until the earliest to
occur of (i) the date on which such Series A 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 A 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 A 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 A 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.
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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 60 days after the Closing Date, a Registration Statement under
the Act relating to the Series B Notes and the 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 135 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 A 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
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Restricted Notes acquired directly from the Company) may exchange such Series A
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 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 165 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 195th day after the Closing Date (such
earliest date being the "Shelf Filing Deadline"), which Shelf
Registration Statement shall provide for resales of all Transfer
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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 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)
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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.
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 A 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
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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 (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 A 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
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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, 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
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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;
(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
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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, 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
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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
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 A
Notes covered by the Shelf Registration Statement, Series B Notes,
having an aggregate principal amount equal to the aggregate principal
amount of Series A Notes surrendered to the Company by such
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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 me; in return, the
Series A Notes held by such 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
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firm or best efforts Underwritten Offering or (B) if not sold to
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 A 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.
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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 Statement becomes effective, including without
limitation: (1) 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 Weil, Gotshal & Xxxxxx LLP 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,
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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 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
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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 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 A
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 A
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
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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 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.
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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 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
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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.
000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telecopier No.: 713/876-1648
Attention: Xxxxxx X. Xxxxx
With a copy to:
Xxxxx & Xxxxx, L.L.P.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telecopier No.: 214/953-6503
Attention: Xxxxxxx X. Xxxxxx
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
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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 respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MMI PRODUCTS, INC.
By: /s/ XXXXXX X. XXXXX
----------------------------
Name: Xxxxxx X. Xxxxx
Title: President and
Chief Executive Officer
BEAR, XXXXXXX & CO. INC.
By: /s/ XXXXX XXXXXXXX
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Managing Director
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