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Exhibit 4.9
$765,000,000 9 3
/ 4 % Senior Notes due
2014
REGISTRATION RIGHTS
AGREEMENT
by and among
Momentive Performance
Materials Inc.
the subsidiaries of
Momentive Performance Materials Inc. parties hereto
and
J.P. Morgan Securities
Inc.
GE Capital Markets,
Inc.
UBS Securities
LLC
ABN AMRO
Incorporated
Barclays Capital
Inc.
Mizuho International
plc
RBC Capital Markets
Corporation
Dated as of December 4,
2006
REGISTRATION RIGHTS
AGREEMENT
This Registration Rights
Agreement (this “ Agreement ”) is made and
entered into as of December 4, 2006, by and among Momentive
Performance Materials Inc., a Delaware corporation (the “
Company ”), the subsidiaries of the Company listed on
Schedule A hereto (collectively, the “ Guarantors
”), J.P. Morgan Securities Inc., GE Capital Markets, Inc.,
UBS Securities LLC, ABN AMRO Incorporated, Barclays Capital Inc.,
Mizuho International PLC and RBC Capital Markets Corporation
(collectively, the “ Initial Purchasers ”), each
of whom has agreed to purchase, pursuant to the Purchase Agreement
(as defined below), the $765,000,000 9 3 / 4 % Senior Notes due 2014 (the “ Initial Notes
”) issued by the Company and fully and unconditionally
guaranteed by the Guarantors (the “ Guarantees
”). The Initial Notes and the Guarantees thereof are herein
collectively referred to as the “ Initial Securities
”.
This Agreement is made
pursuant to the Purchase Agreement, dated November 29, 2006
(the “ Purchase Agreement ”), among the Company,
the Guarantors and the Initial Purchasers (i) for the benefit
of the Initial Purchasers and (ii) for the benefit of the
holders from time to time of the Initial Securities, including the
Initial Purchasers. In order to induce the Initial Purchasers to
purchase the Initial Securities, the Company and the Guarantors
have agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers set forth in
Section 6(i) of the Purchase Agreement.
The parties hereby agree as
follows:
S ECTION 1.
Definitions . As used in this Agreement, the following
capitalized terms shall have the following meanings:
Additional Interest:
Any additional interest payable with respect to the Initial
Securities due to an increase in interest rate pursuant to
Section 5 hereof.
Additional Interest
Payment Date: With respect to the Initial Securities, each
Interest Payment Date.
Advice: As defined in
Section 6 hereof.
Agreement: As defined
in the preamble hereto.
Broker-Dealer: Any
broker or dealer registered under the Exchange Act.
Business Day: Any day
other than a Saturday, Sunday or U.S. federal holiday or a day on
which banking institutions or trust companies located in New York,
New York are authorized or obligated to be closed.
Closing Date: The date
of this Agreement.
Commission: The
Securities and Exchange Commission.
Company: As defined in
the preamble hereto.
Consummate: A
registered Exchange Offer shall be deemed “Consummated”
for purposes of this Agreement upon the occurrence of (i) the
filing and effectiveness under the Securities Act of the Exchange
Offer Registration Statement relating to the Exchange Securities 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 Exchange Securities in the same aggregate principal
amount as the aggregate principal amount of Initial Securities that
were tendered by Holders thereof pursuant to the Exchange
Offer.
Delay Period: As
defined in Section 6 hereof.
Effectiveness Target
Date: As defined in Section 5 hereof.
Exchange Act: The
Securities Exchange Act of 1934, as amended.
Exchange Offer: The
registration by the Company under the Securities Act of the
Exchange Securities pursuant to a Registration Statement pursuant
to which the Company offers the Holders of all outstanding Transfer
Restricted Securities the opportunity to exchange all such
outstanding Transfer Restricted Securities held by such Holders for
Exchange Securities in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders.
Exchange Offer
Registration Statement: The Registration Statement relating to
the Exchange Offer, including the related Prospectus.
Exchange Securities:
The 9 3 / 4 % Senior Notes due 2014 of the same series
under the Indenture as the Initial Notes and the Guarantees
thereof, to be issued to Holders in exchange for Transfer
Restricted Securities pursuant to this Agreement.
Free Writing
Prospectus: Any free writing prospectus, as such term is
defined in Rule 405 under the Securities Act, relating to any
portion of the Securities.
Guarantees: As defined
in the preamble hereto.
Guarantors: As defined
in the preamble hereto.
Holders: As defined in
Section 2(b) hereof.
Indemnified Holder: As
defined in Section 8(a) hereof.
Indenture: The
Indenture dated as of December 4, 2006, by and among the
Company, the Guarantors and Wells Fargo Bank, National Association,
as trustee (the “ Trustee ”), pursuant to which
the Initial Securities and the Exchange Securities are to be
issued, as such Indenture is amended or supplemented from time to
time in accordance with the terms thereof.
Initial Notes: As
defined in the preamble hereto.
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Initial Placement: The
issuance and sale by the Company of the Initial Securities to the
Initial Purchasers pursuant to the Purchase Agreement.
Initial Purchasers: As
defined in the preamble hereto.
Initial Securities: As
defined in the preamble hereto.
Interest Payment Date:
As defined in the Indenture and the Initial Securities.
NASD: NASD
Inc.
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.
Purchase Agreement: As
defined in the preamble hereto.
Registration Default:
As defined in Section 5 hereof.
Registration
Statement: Any registration statement of the Company relating
to (a) an offering of Exchange Securities pursuant to an
Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities 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.
Securities: The
Exchange Securities and/or any Initial Securities registered
pursuant to a Shelf Registration Statement.
Securities Act: The
Securities Act of 1933, as amended.
Shelf Filing Deadline:
As defined in Section 4(a) hereof.
Shelf Registration
Statement: As defined in Section 4(a) hereof.
Transfer Restricted
Securities: Each Initial Security, until the earliest to occur
of (a) the date on which such Initial Security is exchanged in
the Exchange Offer for an Exchange Security entitled to be resold
to the public by the Holder thereof without complying with the
prospectus delivery requirements of the Securities Act,
(b) the date on which such Initial Security has been
effectively registered under the Securities Act and disposed of in
accordance with a Shelf Registration Statement and (c) the
date on which such Initial Security is distributed to the public
pursuant to Rule 144 under the Securities Act or by a Broker-Dealer
pursuant to the “Plan of Distribution” contemplated by
the Exchange Offer Registration Statement (including delivery of
the Prospectus contained therein).
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Trust Indenture Act:
The Trust Indenture Act of 1939, as amended.
Trustee: As defined in
the definition of Indenture above.
Underwritten Registration
or Underwritten Offering: A registration in which securities of
the Company are sold to an underwriter for reoffering to the
public.
S ECTION 2.
Securities Subject to this Agreement.
(a) Transfer Restricted
Securities. The securities entitled to the benefits of this
Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer
Restricted Securities. A Person is deemed to be a holder of
Transfer Restricted Securities (each, a “ Holder
”) whenever such Person owns Transfer Restricted
Securities.
S ECTION
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) hereof have
been complied with), each of the Company and the Guarantors shall
(i) use its commercially reasonable efforts to cause a
Registration Statement filed under the Securities Act relating to
the Exchange Securities and the Exchange Offer to become effective
as promptly as possible (unless it becomes effective automatically
upon filing), but in no event later than 365 days after the Closing
Date (or if such 365th day is not a Business Day, the next
succeeding Business Day) and (ii) in connection with the
foregoing, (A) file all pre-effective amendments to such
Registration Statement as may be necessary in order to cause such
Registration Statement to become effective, (B) file, if
applicable, a post-effective amendment to such Registration
Statement pursuant to Rule 430A under the Securities Act and
(C) cause all necessary filings in connection with the
registration and qualification of the Exchange Securities to be
made under the state securities or 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 Exchange Securities to be offered in exchange for the Transfer
Restricted Securities and to permit resales of Initial Securities
held by Broker-Dealers as contemplated by Section 3(c)
hereof.
(b) The Company and the
Guarantors 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 30 days after the date notice of the
Exchange Offer is mailed to the Holders. The Company shall cause
the Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Exchange Securities
shall be included in the Exchange Offer Registration Statement. The
Company shall use its commercially reasonable efforts to cause the
Exchange Offer to be Consummated on the earliest practicable date
after the Exchange Offer Registration Statement has become
effective, but in no event later than 30 days after the
date
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notice of the Exchange Offer is required
to be mailed to the Holders (or if such 30th day is not a Business
Day, the next succeeding Business Day).
(c) The Company shall
indicate in a “Plan of Distribution” section contained
in the Prospectus forming a part of the Exchange Offer Registration
Statement that any Broker-Dealer who holds Initial Securities that
are Transfer Restricted Securities and that were acquired for its
own account as a result of market-making activities or other
trading activities (other than Transfer Restricted Securities
acquired directly from the Company) may exchange such Initial
Securities pursuant to the Exchange Offer; however, such
Broker-Dealer may be deemed to be an “underwriter”
within the meaning of the Securities Act and must, therefore,
deliver a prospectus meeting the requirements of the Securities Act
in connection with any resales of the Exchange Securities 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 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 Initial Securities held by any such
Broker-Dealer except to the extent required by the
Commission.
Each of the Company and the
Guarantors shall use its commercially reasonable efforts to keep
the Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of
Section 6(c) hereof to the extent necessary to ensure that it
is available for resales of Initial Securities 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 Securities
Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period ending on the earlier of
(i) 180 days from the date on which the Exchange Offer
Registration Statement is declared effective and (ii) the date
on which a Broker-Dealer is no longer required to deliver a
prospectus in connection with market-making or other trading
activities.
The Company shall provide
sufficient copies of the latest version of such Prospectus to
Broker-Dealers promptly upon request at any time during such
180-day (or shorter as provided in the foregoing sentence) period
in order to facilitate such resales.
S ECTION
4. Shelf Registration.
(a) Shelf
Registration. If (i) the Company is not required to file
an Exchange Offer Registration Statement or to consummate the
Exchange Offer because the Exchange Offer is not permitted by
applicable law or Commission policy (after the procedures set forth
in Section 6(a) hereof have been complied with), (ii) for
any reason the Exchange Offer is not Consummated within 30 days
after the date notice of the Exchange Offer is required to be
mailed to the Holders (or if such 30th day is not a Business Day,
the next succeeding Business Day), or (iii) with respect to
any Holder of Transfer Restricted Securities (A) such Holder
is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) such Holder may
not resell the Exchange Securities acquired by it in the Exchange
Offer to the public without delivering a prospectus (other than by
reason of such Holder’s status as an affiliate of the
Company) and the Prospectus contained in the Exchange Offer
Registration Statement is not
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appropriate or available for
such resales by such Holder, or (C) such Holder is a
Broker-Dealer and holds Initial Securities acquired directly from
the Company or one of its affiliates, then, upon such
Holder’s request prior to the 20 th day following consummation of the Exchange Offer, the Company
and the Guarantors shall:
(x) cause to be filed a shelf
registration statement pursuant to Rule 415 under the Securities
Act, which may be an amendment to the Exchange Offer Registration
Statement (in either event, the “ Shelf Registration
Statement ”) as soon as practicable but in any event on
or prior to 180 days after such filing obligation arises (or if
such 180th day is not a Business Day, the next succeeding Business
Day) (such date being the “ Shelf Filing Deadline
”), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities the Holders of which
shall have provided the information required pursuant to
Section 4(b) hereof; and
(y) use their commercially
reasonable efforts to cause such Shelf Registration Statement to be
declared effective by the Commission as promptly as possible
(unless it becomes effective automatically upon filing), and in any
event on or before the 365th day after the obligation to file such
Shelf Registration Statement arises (or if such 365th day is not a
Business Day, the next succeeding Business Day).
Each of the Company and the
Guarantors shall use its commercially reasonable 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 Initial Securities by the Holders of
Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the
requirements of this Agreement, the Securities 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
effective date of such Shelf Registration Statement (or shorter
period that will terminate when all the Initial Securities covered
by such Shelf Registration Statement have been sold pursuant to
such Shelf Registration Statement). During the period during which
the Company is required to maintain an effective Shelf Registration
Statement pursuant to this Agreement, the Company will, prior to
the expiration of that Shelf Registration Statement, file, and use
its commercially reasonable efforts to cause to be declared
effective (unless it becomes effective automatically upon filing)
within a period that avoids any interruption in the ability of
Holders of Securities covered by the expiring Shelf Registration
Statement to make registered dispositions, a new registration
statement relating to the Securities, which shall be deemed the
“Shelf Registration Statement” for purposes of this
Agreement.
(b) Provision by Holders
of Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities 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 or amendment or supplement thereto or Free Writing
Prospectus. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to
the
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Company all information required to be
disclosed in order to make the information previously furnished to
the Company by such Holder not materially misleading.
S ECTION
5. Additional Interest . If (i) any of the
Registration Statements required by this Agreement has not been
declared effective by the Commission (or become automatically
effective) on or prior to the date specified for such effectiveness
in this Agreement (the “ Effectiveness Target Date
”), (ii) the Exchange Offer has not been Consummated
within 30 Business Days after the Effectiveness Target Date with
respect to the Exchange Offer Registration Statement or
(iii) 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 without
being succeeded immediately by a post-effective amendment to such
Registration Statement that cures such failure and that is itself
immediately declared or automatically becomes effective (except in
the case of a Registration Statement that ceases to be effective or
usable as specifically permitted by the last paragraph of
Section 6 hereof) (each such event referred to in clauses
(i) through (iii), a “ Registration Default
”), the Company hereby agrees that the interest rate borne by
the Transfer Restricted Securities shall be increased by
0.25% per annum during the 90-day period immediately following
the occurrence of any Registration Default and shall increase by
0.25% per annum at the end of each subsequent 90-day period,
but in no event shall such increase exceed 1.00% per annum.
Following the earliest of (x) the cure of all Registration
Defaults relating to any particular Transfer Restricted Securities,
(y) the date on which such Transfer Restricted Security ceases
to be a Transfer Restricted Security or otherwise becomes freely
transferable by Holders other than affiliates of the Company
without further registration under the Securities Act and
(z) the date that is two years after the Closing Date, the
interest rate borne by the relevant Transfer Restricted Securities
will be reduced to the original interest rate borne by such
Transfer Restricted Securities; provided, however, that if,
after any such reduction in interest rate, a different Registration
Default occurs, the interest rate borne by the relevant Transfer
Restricted Securities shall again be increased pursuant to the
foregoing provisions.
Notwithstanding the
foregoing, (i) the amount of Additional Interest payable shall
not increase because more than one Registration Default has
occurred and is pending and (ii) a Holder of Transfer
Restricted Securities that is not entitled to the benefits of the
Shelf Registration Statement (because, e.g. , such Holder
has not elected to include information or has not timely delivered
such information to the Company pursuant to Section 4(b)
hereof) shall not be entitled to Additional Interest with respect
to a Registration Default that pertains to the Shelf Registration
Statement.
All obligations of the
Company and the Guarantors set forth in the first paragraph of this
Section 5 that are outstanding with respect to any Transfer
Restricted Security at the time such security ceases to be a
Transfer Restricted Security shall survive until such time as all
such obligations with respect to such security shall have been
satisfied in full.
S ECTION
6. Registration Procedures .
(a) Exchange Offer
Registration Statement. In connection with the Exchange Offer,
the Company and the Guarantors shall comply with all of the
provisions of Section 6(c) hereof, shall use their
commercially reasonable efforts to effect such exchange to permit
the sale of Transfer
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Restricted Securities 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 question as to whether
the Exchange Offer is permitted by applicable law, each of the
Company and the Guarantors hereby agrees to seek a favorable
decision from the Commission allowing the Company and the
Guarantors to Consummate an Exchange Offer for such Initial
Securities. Each of the Company and the Guarantors 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. Each of the Company
and the Guarantors 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 favorable resolution 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 Securities 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 Exchange Securities to be issued in the Exchange Offer and
(C) it is acquiring the Exchange Securities in its ordinary
course of business. In addition, all such Holders of Transfer
Restricted Securities shall otherwise cooperate in the
Company’s preparations for the Exchange Offer. Each Holder
hereby acknowledges and agrees that any Broker-Dealer and any such
Holder using the Exchange Offer to participate in a distribution of
the securities to be acquired in the Exchange Offer (1) could
not under Commission policy as in effect on the date of this
Agreement rely on the position of the Commission enunciated in
Morgan Stanley 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 (which may include any no-action letter
obtained pursuant to clause (i) above), and (2) must
comply with the registration and prospectus delivery requirements
of the Securities 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
Exchange Securities obtained by such Holder in exchange for Initial
Securities acquired by such Holder directly from the
Company.
(b) Shelf Registration
Statement. In connection with the Shelf Registration Statement,
each of the Company and the Guarantors shall comply with all the
provisions of Section 6(c) hereof and shall use its
commercially reasonable efforts to effect such registration (unless
automatically declared effective) to permit the sale of the
Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and pursuant
thereto each of the Company and the Guarantors will as
expeditiously as is commercially
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reasonable prepare and file with the
Commission a Registration Statement relating to the registration on
any appropriate form under the Securities Act, which form shall be
available for the sale of the Transfer Restricted Securities 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 Securities and any Free Writing
Prospectus (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of
Initial Securities by Broker-Dealers and any Free Writing
Prospectus related thereto), each of the Company and the Guarantors
shall:
(i) use its commercially
reasonable efforts to keep such Registration Statement continuously
effective during the period required by this Agreement and provide
all requisite financial statements (including, if required by the
Securities Act or any regulation thereunder, financial statements
of the Guarantors for the period specified in Section 3 or 4
hereof, 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 Securities 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 commercially reasonable efforts to cause
such amendment to be declared effective (unless automatically
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
applicable 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 Securities
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 Securities Act, and to comply fully with the applicable
provisions of Rules 424 and 430A under the Securities Act in a
timely manner; and comply with the provisions of the Securities 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
underwriter(s), if any, and selling Holders promptly and, if
requested by such Persons, to confirm such advice in writing,
(A) when the Prospectus, any Prospectus supplement, any
post-effective amendment or any Free Writing Prospectus 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
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issuance by the Commission of
any stop order
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