EXHIBIT 1.1
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
MUELLER HOLDINGS (N.A.), INC.
as Issuer
14 3/4% SENIOR DISCOUNT NOTES DUE 2014
Dated as of April 29, 2004
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CREDIT SUISSE FIRST BOSTON LLC,
DEUTSCHE BANK SECURITIES INC.
J.P. MORGAN SECURITIES INC.
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This
Registration Rights Agreement (this "Agreement") is made and
entered
into as of April 29, 2004, by and among
Mueller Holdings (N.A.), Inc., a
Delaware corporation (the "Company"), and
Credit Suisse First Boston LLC,
Deutsche Bank Securities Inc., and J.P.
Morgan Securities Inc. (collectively,
the "Purchasers"), who have agreed to
purchase the Company's units, each
consisting of $1,000 principal amount at
maturity of 14 3/4% Senior Discount
Notes due 2014 (the "Initial Notes") and a
warrant to purchase 109.80889 shares
of the Company's Class A common stock, par
value $0.01 per share pursuant to
the Purchase Agreement (as defined
below).
This Agreement
is made pursuant to the Purchase Agreement, dated April 22,
2004 (the "Purchase Agreement"), by and
among the Company and the Purchasers.
In order to induce the Purchasers to
purchase the Initial 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 obligations of
the Purchasers set forth in Section 6 of
the Purchase Agreement. Capitalized
terms used herein and not otherwise defined
shall have the meaning assigned to
them in the Indenture, dated as of April
29, 2004 (the "Indenture"), between
the Company and Law Debenture Trust Company
of New York, as Trustee (the
"Trustee").
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.
Additional
Interest: As defined in Section 5 hereof.
Affiliate: As
defined in Rule 144.
Affiliated
Market Maker: A Broker-Dealer or one of its Affiliates who is
deemed to be an Affiliate of the Company
and intends to make a market in the
Exchange Notes.
Broker-Dealer:
Any broker or dealer registered under the Exchange Act.
Certificated
Securities: Definitive Notes, as defined in the Indenture.
Closing Date:
The date hereof.
Commission: The
Securities and Exchange Commission.
Consummate: An
Exchange Offer shall be deemed "Consummated" for purposes
of this Agreement upon the occurrence of
(a) the filing and effectiveness under
the Act of the Exchange Offer Registration
Statement relating to the Exchange
Notes to be issued in the Exchange Offer,
(b) the keeping of the Exchange Offer
open for a period not less than the period
required pursuant to Section 3(b)
hereof and (c) the delivery by the Company
to the Registrar under the Indenture
of Exchange Notes (as defined below) in the
same aggregate principal amount at
maturity as the aggregate principal amount
of Notes validly tendered and not
withdrawn by Holders (as defined below)
thereof pursuant to the Exchange Offer.
Consummation
Date: The date on which the Exchange Offer is Consummated.
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Consummation
Deadline: As defined in Section 3(b) hereof.
Effectiveness
Deadline: As defined in Sections 3(a) and 4(a) hereof.
Exchange Act:
The Securities Exchange Act of 1934, as amended.
Exchange Notes:
The Company's 14 3/4% Senior Discount Notes due 2014 to be
issued pursuant to the Indenture (i) in the
Exchange Offer or (ii) as
contemplated by Section 6(b) hereof.
Exchange Offer:
The exchange and issuance by the Company of a principal
amount at maturity of Notes (which shall be
registered pursuant to the Exchange
Offer Registration Statement) equal to the
principal amount at maturity of
Initial Notes that are validly tendered and
not withdrawn in connection with
such exchange and issuance.
Exchange Offer
Registration Statement: The Registration Statement relating
to the Exchange Offer, including the
related Prospectus.
Filing Deadline: As defined in
Sections 3(a) and 4(a) hereof.
Holders: As
defined in Section 2 hereof.
Notes: The
Initial Notes and the Exchange Notes together.
Participating
Broker Dealer: As defined in Section 3(a) hereof.
Prospectus: The
prospectus included in a Registration Statement at the
time such Registration Statement is
declared effective, 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.
Recommencement
Date: As defined in Section 6(d) hereof.
Registration
Default: As defined in Section 5 hereof.
Registration
Statement: Any registration statement of the Company relating
to (a) an offering of Exchange Notes
pursuant to an Exchange Offer or (b) the
registration for resale of Transfer
Restricted Securities pursuant to the Shelf
Registration Statement, in each case, (i)
that is filed pursuant to the
provisions of this Agreement and (ii)
including the Prospectus included therein
and all exhibits thereto.
Regulation S:
Regulation S promulgated under the Act.
Rule 144: Rule
144 promulgated under the Act.
Shelf
Registration Statement: As defined in Section 4 hereof.
Suspension
Notice: As defined in Section 6(d) hereof.
TIA: The Trust
Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb), as
in effect on the date of the Indenture.
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Transfer
Restricted Securities: Each (a) Initial Note, until the
earliest
to occur of (i) the date on which such
Initial Note is exchanged in the
Exchange Offer for an Exchange Note that is
entitled to be resold to the public
by the holder thereof without complying
with the prospectus delivery
requirements of the Securities Act, (ii)
the date on which such Initial Note
has been disposed of in accordance with a
Shelf Registration Statement (and the
purchasers thereof have been issued
Exchange Notes), and (iii) the date on
which such Initial Note is distributed to
the public pursuant to Rule 144 under
the Act and (b) Exchange Note issued to a
Participating Broker-Dealer in the
Exchange Offer until the date on which such
Exchange Note is disposed of by
such Participating Broker-Dealer pursuant
to the "Plan of Distribution"
contemplated by the Exchange Offer
Registration Statement (including the
delivery of the Prospectus contained
therein).
SECTION 2. HOLDERS
A Person is
deemed to be a holder of Transfer Restricted Securities (each,
a "Holder") whenever such Person is the
holder of record of Transfer Restricted
Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the
Exchange Offer shall not be permitted by applicable federal
law or Commission policy (after the
procedures set forth in Section 6(a)(i)
hereof have been complied with), the
Company shall use its reasonable best
efforts to (i) cause the Exchange Offer
Registration Statement to be filed with
the Commission as promptly as practicable
after the Closing Date, but in no
event later than 90 days after the Closing
Date (such 90th day, the "Filing
Deadline"), (ii) cause such Exchange Offer
Registration Statement to become
effective as promptly as practicable, but
in no event later than 180 days after
the Closing Date (such 180th day, the
"Effectiveness Deadline"), (iii) in
connection with the foregoing, (A) file all
pre-effective amendments to such
Exchange Offer Registration Statement as
may be necessary in order to cause it
to become effective, and (B) subject to the
proviso in Section 6(c)(xii)
hereof, cause all necessary filings, if
any, in connection with the
registration and qualification of the
Exchange 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 Exchange Offer
Registration Statement, commence and,
within the time periods contemplated by
Section 3(b) hereof, Consummate the
Exchange Offer. The Exchange Offer shall be
on the appropriate form permitting (i)
registration of the Exchange Notes to be
offered in exchange for the Initial Notes
that are Transfer Restricted
Securities and (ii) resales of Exchange
Notes by Broker-Dealers that tendered
into the Exchange Offer Initial Notes that
such Broker-Dealer acquired for its
own account as a result of its
market-making activities or other trading
activities (other than Initial Notes
acquired directly from the Company or any
of its Affiliates) as contemplated by
Section 3(c) hereof (each, a
"Participating Broker Dealer").
(b) The Company
shall use its reasonable best efforts to 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 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
Exchange Notes shall be included in the
Exchange Offer Registration Statement.
The Company shall use its reasonable best
efforts to cause the Exchange Offer
to be Consummated within 30 Business Days
after the Exchange Offer Registration
Statement has become effective, but in no
event later than 40 Business Days
after the Effectiveness Deadline (such 40th
day, the "Consummation Deadline").
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(c) The Company
shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer
Registration Statement and indicate
therein that any Broker-Dealer who holds
Transfer Restricted Securities that
were acquired for the account of such
Broker-Dealer as a result of
market-making activities or other trading
activities (other than Initial Notes
acquired directly from the Company or any
of its Affiliates), may exchange such
Transfer Restricted Securities pursuant to
the Exchange Offer. Such "Plan of
Distribution" section shall also contain
all other information with respect to
such sales by such Broker-Dealers that the
Commission may require in order to
permit such sales pursuant thereto, but
such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the
amount of Transfer Restricted
Securities held by any such Broker-Dealer,
except to the extent required by the
Commission.
Because 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
its initial sale of any Exchange
Notes received by such Broker-Dealer in the
Exchange Offer, the Company shall
permit the use of the Prospectus contained
in the Exchange Offer Registration
Statement by such Broker-Dealer to satisfy
such prospectus delivery requirement
for a period of 90 days following the
Consummation Date. To the extent
necessary to ensure that the Prospectus
contained in the Exchange Offer
Registration Statement is available for
sales of Exchange Notes by
Broker-Dealers, the Company agrees to use
its reasonable best efforts to keep
the Exchange Offer Registration Statement
continuously effective, supplemented,
amended and current as required by and
subject to the provisions of Sections
6(a) and (c) hereof and in conformity 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 90 days
from the Consummation Date or such
shorter period as will terminate when no
Transfer Restricted Securities are
outstanding. The Company shall provide
sufficient copies of the latest version
of such Prospectus to such Broker-Dealers,
promptly upon request, at any time
during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf
Registration. If (i) the Exchange Offer is not permitted by
applicable law or Commission policy (after
the Company has complied with the
procedures set forth in Section 6(a)(i)
hereof) or (ii) if any Holder of
Transfer Restricted Securities shall notify
the Company in writing within 20
Business Days following the Consummation
Deadline that (A) based on an opinion
of counsel, such Holder was prohibited by
law or Commission policy from
participating in the Exchange Offer or (B)
such Holder is a Broker-Dealer and
holds Initial Notes acquired directly from
the Company or any of its Affiliates
or is an Affiliate Market Maker, then the
Company shall:
(x) cause to be filed, on or prior to 90 days after the earlier
of
(i) the date on
which the Company determines that the Exchange Offer
Registration
Statement cannot be filed as a result of Section 4(a)(i)
hereof and (ii)
the date on which the Company receives the notice
specified in Section
4(a)(ii) hereof (90 days after such earlier date, the
"Filing
Deadline"), a shelf registration statement (the "Shelf
Registration
Statement") pursuant to Rule 415 under the Act (which may be
an amendment to
the Exchange Offer Registration Statement) relating to (1)
all Transfer
Restricted Securities in the case of clause (a)(i) above or
(2) the Transfer
Restricted Securities specified in any notice in the case
of clause
(a)(ii) above; and
(y) shall use its reasonable best efforts to cause such Shelf
Registration
Statement to become effective on or prior to 90 days after
the Filing
Deadline for the Shelf Registration Statement (such 90th day,
the
"Effectiveness Deadline"), (clauses (x) and (y) together, the
"Shelf
Registration").
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If, after the
Company has filed an Exchange Offer Registration Statement
that satisfies the requirements of Section
3(a) hereof, the Company is required
to file and make effective a Shelf
Registration Statement solely because the
Exchange Offer is not permitted under
applicable federal law (i.e., Section
4(a)(i) hereof), then the filing of the
Exchange Offer Registration Statement
shall be deemed to satisfy the requirements
of clause (x) above; provided that,
in such event, the Company shall remain
obligated to meet the Effectiveness
Deadline set forth in clause (y).
To the extent
necessary to ensure that the Shelf Registration Statement is
available for sales of Transfer Restricted
Securities by the Holders thereof
entitled to the benefit of this Section
4(a) and the other securities required
to be registered therein pursuant to
Section 6(b)(ii) hereof, the Company shall
use its reasonable best efforts to keep any
Shelf Registration Statement
required by this Section 4(a) continuously
effective, supplemented, amended and
current as required by and subject to the
provisions of Sections 6(b) and (c)
hereof and in conformity with the
requirements of this Agreement, the Act
(including, but not limited to, Section 10
of the Act and Items 507 and 508 of
Regulation S-K under the Act) and the
policies, rules and regulations of the
Commission as announced from time to time,
until the later of (a) the date on
which no Broker Dealer making a market in
the Exchange Notes is deemed to be an
Affiliate of the Company, and (b) the
earlier of the second anniversary of the
Closing Date (as such date may be extended
pursuant to Section 6(d) hereof) and
such earlier date when no Transfer
Restricted Securities covered by such Shelf
Registration Statement remain
outstanding.
(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 days
after receipt of a request therefor, the
information specified in Item 507 or 508 of
Regulation S-K, as applicable, of
the Act for use in connection with any
Shelf Registration Statement or
Prospectus or preliminary Prospectus
included therein. No Holder of Transfer
Restricted Securities shall be entitled to
Additional Interest pursuant to
Section 5 hereof unless and until such
Holder shall have provided all such
information. Each selling Holder agrees to
promptly furnish additional
information required to be disclosed in
order to make the information
previously furnished to the Company by such
Holder not materially misleading.
(c) Holders of
Transfer Restricted Securities that do not give the written
notice within the 20 Business Day period
set forth in Section 4(a)(ii) hereof,
if required to be given, will no longer
have any registration rights pursuant
to this Section 4 and will not be entitled
to any Additional Interest pursuant
to Section 5 hereof in respect of the
Company's obligations with respect to the
Shelf Registration Statement.
Notwithstanding the foregoing, no Broker-Dealer
that is an Affiliate of the Company shall
be required to give such written
notice or deliver an opinion in order to
maintain its registration rights
pursuant to this Section 4.
SECTION 5. ADDITIONAL INTEREST
If (i) any
Registration Statement required by this Agreement is not filed
with the Commission on or prior to the
applicable Filing Deadline, (ii) any
such Registration Statement has not been
declared effective by the Commission
on or prior to the applicable Effectiveness
Deadline, (iii) the Exchange Offer
(if required) has not been Consummated on
or prior to the Consummation Deadline
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 it is required to be
effective pursuant to the terms hereof
without being succeeded within ten
Business Days by a post-effective amendment
to such Registration Statement that
cures such failure and that is itself
declared effective within ten Business
Days of filing such post-effective
amendment to such Registration
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Statement (each such event referred to in
clauses (i) through (iv), a
"Registration Default"), then the Company
agrees to pay to each Holder of
Transfer Restricted Securities affected
thereby additional interest
("Additional Interest") in an amount equal
to 0.25% per annum of the Accreted
Value (calculated as of the date of the
Registration Default) of Transfer
Restricted Securities held by such Holder
for the first 90-day period
immediately following the occurrence of
such Registration Default. The amount
of the Additional Interest shall increase
by an additional 0.25% per annum on
such Accreted Value (calculated as of the
beginning of such subsequent 90-day
period) of Transfer Restricted Securities
held by such Holder with respect to
each subsequent 90-day period until all
Registration Defaults have been cured,
up to a maximum amount of Additional
Interest of 0.50% per annum of Transfer
Restricted Securities held by such Holder;
provided that the Company shall in
no event be required to pay Additional
Interest for more than one Registration
Default with respect to the Notes.
Notwithstanding anything to the contrary set
forth herein, (1) upon filing of the
Exchange Offer Registration Statement
(and/or, if applicable, the Shelf
Registration Statement), in the case of (i)
above, (2) upon the effectiveness of the
Exchange Offer Registration Statement
(and/or, if applicable, the Shelf
Registration Statement), in the case of (ii)
above, (3) upon Consummation of the
Exchange Offer, in the case of (iii) above,
(4) upon the filing of a post-effective
amendment to the Registration Statement
or an additional Registration Statement
that causes the Exchange Offer
Registration Statement (and/or, if
applicable, the Shelf Registration
Statement) to again be declared effective
or made usable in the case of (iv)
above, or (5) if sooner, upon the first
date on which no Transfer Restricted
Securities remain outstanding, in the case
of clauses (i) through (iv) above,
the Additional Interest payable with
respect to the Transfer Restricted
Securities as a result of such clause (i),
(ii), (iii) or (iv), as applicable,
shall cease.
All accrued
Additional Interest shall be paid to the Holders entitled
thereto, in the manner provided for the
payment of interest in the Indenture
and the Notes on each April 15 and October
15, as more fully set forth in the
Indenture and the Notes. Notwithstanding
the fact that any securities for which
Additional Interest is due cease to be
Transfer Restricted Securities, all
obligations of the Company to pay
Additional Interest with respect to
securities that accrued prior to the time
such securities ceased to be Transfer
Restricted Securities shall survive until
such time as such obligations with
respect to such securities shall have been
satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange
Offer Registration Statement. In connection with the Exchange
Offer, the Company shall (x) comply with
all applicable provisions of Section
6(c) hereof, (y) use its reasonable best
efforts to effect such exchange and to
permit the resale of Exchange Notes by
Participating Broker-Dealers that
tendered in the Exchange Offer Initial
Notes that such Broker-Dealer acquired
for its own account as a result of its
market-making activities or other
trading activities (other than Initial
Notes acquired directly from the Company
or any of its Affiliates) being sold in
accordance with the intended method or
methods of distribution thereof, and (z)
comply with all of the following
provisions:
(i) If, following the date hereof there has been announced a
change
in Commission
policy with respect to exchange offers, such as the Exchange
Offer, that, in
the opinion of counsel to the Company, raises a
substantial
question as to whether the Exchange Offer is permitted by
applicable
federal 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 Transfer Restricted
Securities. The
Company hereby agrees to use its reasonable best efforts
in pursuing the
issuance of such a decision to the Commission staff level.
(ii) As a condition to its participation in the Exchange Offer,
each
Holder of
Transfer Restricted Securities (including, without limitation,
any Holder who
is a Broker-Dealer) shall
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furnish, upon
the request of the Company, prior to the Consummation of the
Exchange Offer,
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, at the time of Consummation of
the Exchange
Offer, (A) any Exchange Notes received by such Holder will be
acquired in the
ordinary course of its business, (B) such Holder will have
no arrangement
or understanding with any person to participate in the
distribution of
the Initial Notes or the Exchange Notes within the meaning
of the Act, (C)
if the Holder is not a Broker-Dealer or is a Broker-Dealer
but will not
receive Exchange Notes for its own account in exchange for
Initial Notes,
neither the Holder nor any such other Person is engaged in
or intends to
participate in a distribution of the Exchange Notes, and (D)
that such Holder
is not an Affiliate of the Company. If the Holder is a
Broker-Dealer
that will receive Exchange Notes for its own account in
exchange for
Initial Notes, it will represent that the Notes to be
exchanged for
the Exchange Notes were acquired by it as a result of its
market-making
activities or other trading activities, and will acknowledge
that it will
deliver a prospectus meeting the requirements of the Act in
connection with
any resale of such Exchange Notes. It is understood that,
by acknowledging
that it will deliver, and by delivering, a prospectus
meeting the
requirements of the Act in connection with any resale of such
Exchange Notes,
the Holder is not admitting that it is an "underwriter"
within the
meaning of the Act.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the
Company shall 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) and Morgan Stanley and
Co.,
Inc. (available
June 5, 1991), as interpreted in the Commission's letter
to Shearman
& Sterling dated July 2, 1993, and, if applicable, any
no-action letter
obtained pursuant to clause (i) above, (B) including a
representation
that the Company has not entered into any arrangement or
understanding
with any Person to distribute the Exchange 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
Exchange Notes in its ordinary course of business and has no
arrangement or
understanding with any Person to participate in the
distribution of
the Exchange Notes received in the Exchange Offer and (C)
any other
undertaking or representation required by the Commission as set
forth in any
no-action letter obtained pursuant to clause (i) above, if
applicable.
(b) Shelf
Registration Statement. In connection with the Shelf
Registration Statement, the Company
shall:
(i) comply with all the provisions of Section 6(c) hereof and use
its
reasonable best
efforts to effect such registration to permit the sale of
the Transfer
Restricted Securities being sold in accordance with the
intended method
or methods of distribution thereof (as indicated in the
information
furnished to the Company pursuant to Section 4(b) hereof), and
pursuant thereto
the Company will prepare and file with the Commission a
Registration
Statement relating to the registration on any appropriate
form under the
Act, which form shall be available for the sale of the
Transfer
Restricted Securities in accordance with the intended method or
methods of
distribution thereof within the time periods and otherwise in
accordance with
the provisions hereof, and
(ii)
issue, upon the request of any Holder or purchaser of Notes
covered by any
Shelf Registration Statement contemplated by this
Agreement,
Exchange Notes having an aggregate principal amount at maturity
equal to the
aggregate principal amount at maturity of Notes sold pursuant
to the Shelf
Registration Statement and surrendered to the Company for
cancellation;
the Company shall register Exchange Notes on the Shelf
Registration
Statement for this purpose and
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issue the
Exchange Notes to the purchaser(s) of securities subject to the
Shelf
Registration Statement in the names as such purchaser(s) shall
designate.
(c) General
Provisions. In connection with any Registration Statement and
any related Prospectus required by this
Agreement, the Company shall, during
the periods specified in Sections 3 and 4
hereof, as applicable:
(i) use its reasonable 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
an untrue
statement of material fact or omit to state any material fact
necessary to
make the statements therein, in the light of the
circumstances
under which they were made, not misleading 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 or a supplement to
the Prospectus,
as applicable, curing such defect, and, in the case of an
amendment, use
its reasonable best efforts to cause such amendment to be
declared
effective as soon as practicable.
(ii) prepare and file with the Commission
