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Title: |
Corporate Agreement |
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Date: |
2006 |
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Preview shows 18KB of 78KB total |
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Price: |
$42 |
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ID: |
#1711938 |
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CORPORATE AGREEMENT
THIS CORPORATE AGREEMENT (?Agreement?) is entered into as of May 26, 2006 by and between WALTER INDUSTRIES, INC., a Delaware corporation (?Walter?), and MUELLER WATER PRODUCTS, INC., a Delaware corporation (?Mueller?).
RECITALS
A. Walter beneficially owns all of the issued and outstanding shares of capital stock of Mueller, and Mueller is a member of Walter?s ?affiliated group? of corporations (the ?Walter Group?) for federal income tax purposes.
B. The parties are contemplating the possibility that (i) Mueller will sell shares of Series A Common Stock, par value $0.01 per share (?Series A Common Stock?), in an initial public offering (the ?Initial Public Offering?) registered under the Securities Act of 1933, as amended, and (ii) immediately following the Initial Public Offering, Walter will own all of the outstanding shares of Series B Common Stock, par value $0.01 per share (?Series B Common Stock?), of Mueller, which will have eight votes per share and will be a series of common stock separate from the Series A Common Stock.
C. The parties desire to enter into this Agreement to set forth their agreement regarding (i) Walter?s rights to purchase additional shares of Series B Common Stock upon any issuance of certain classes of capital stock of Mueller to any person to permit Walter to maintain its percentage ownership interest in Mueller, (ii) Walter?s rights to purchase shares of non-voting classes of capital stock of Mueller to permit Walter to own eighty percent (80%) of each class of such stock outstanding, (iii) certain registration rights with respect to Series B Common Stock (and any other securities issued in respect thereof or in exchange therefor) and (iv) certain representations, warranties, covenants and agreements applicable so long as Mueller is a subsidiary of Walter.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Walter and Mueller, for themselves, their successors and assigns, hereby agree as follows:
?Affiliate? means, with respect to a given Person, any Person controlling, controlled by or under common control with such Person. For purposes of this definition, ?control? (including, with correlative meanings, the terms ?controlled by? and ?under common control with?), as applied to any Person, means the possession, directly or indirectly, of the power to vote a majority of the securities having voting power for the election of directors (or
other Persons acting in similar capacities) of such Person or otherwise to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise.
?Agreement? has the meaning ascribed thereto in the preamble hereto, as such agreement may be amended and supplemented from time to time in accordance with its terms.
?Applicable Stock? means at any time the (i) shares of Common Stock owned by the Walter Entities that were owned on the date hereof, plus (ii) shares of Series B Common Stock purchased by the Walter Entities pursuant to Article II of this Agreement, plus (iii) shares of Common Stock that were issued to Walter Entities in respect of shares described in either clause (i) or clause (ii) in any reclassification, share combination, share subdivision, share dividend, share exchange, merger, consolidation or similar transaction or event.
?Series A Common Stock? has the meaning ascribed thereto in the recitals to this Agreement.
?Series B Common Stock? has the meaning ascribed thereto in the recitals to this Agreement.
?Series B Common Stock Option? has the meaning ascribed thereto in Section 2.1(a).
?Series B Common Stock Option Notice? has the meaning ascribed thereto in Section 2.2.
?Series B Transferee? shall have the meaning ascribed thereto in Mueller?s Restated Certificate of Incorporation.
?Common Stock? means the Series A Common Stock, the Series B Common Stock, any other class of Mueller?s capital stock representing the right to vote generally for the election of directors and, for so long as Mueller continues to be a subsidiary corporation includable in a consolidated federal income tax return of the Walter Group, any other security of Mueller treated as stock for purposes of Section 1504 of the Internal Revenue Code of 1986, as amended.
?Company Securities? has the meaning ascribed thereto in Section 3.2(b).
?Disadvantageous Condition? has the meaning ascribed thereto in Section 3.1(a).
?Holder? means Walter, the other Walter Entities and any Transferee.
?Holder Securities? has the meaning ascribed thereto in Section 3.2(b).
?Initial Public Offering? has the meaning ascribed thereto in the recitals to this Agreement.
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?Initial Public Offering Date? means the date of completion of the initial sale of Series A Common Stock in the Initial Public Offering.
?Issuance Event? has the meaning ascribed thereto in Section 2.2.
?Issuance Event Date? has the meaning ascribed thereto in Section 2.2.
?Market Price? of any shares of Series A Common Stock on any date means (i) the average of the last sale price of such shares on each of the five trading days immediately preceding such date on the New York Stock Exchange, Inc. or, if such shares are not listed thereon, on the principal national securities exchange or automated interdealer quotation system on which such shares are traded or (ii) if such sale prices are unavailable or such shares are not so traded, the value of such shares on such date determined in accordance with agreed-upon procedures reasonably satisfactory to Mueller and Walter.
?Mueller? has the meaning ascribed thereto in the preamble hereto.
?Mueller Entities? means Mueller and its Subsidiaries, and ?Mueller Entity? shall mean any of the Mueller Entities.
?Nonvoting Stock? means any class of Mueller?s capital stock not representing the right to vote generally for the election of directors.
?Nonvoting Stock Option? has the meaning ascribed thereto in Section 2.1(c).
?Nonvoting Stock Option Notice? has the meaning ascribed thereto in Section 2.2.
?Other Holders? has the meaning ascribed thereto in Section 3.2(c).
?Other Securities? has the meaning ascribed thereto in Section 3.2.
?Ownership Percentage? means, at any time, the fraction, expressed as a percentage and rounded to the next highest thousandth of a percent, whose numerator is the aggregate Value of the Applicable Stock and whose denominator is the aggregate Value of the then-outstanding shares of Common Stock of Mueller; provided, however, that any shares of Common Stock issued by Mueller in violation of its obligations under Article II of this Agreement shall not be deemed outstanding for the purpose of determining the Ownership Percentage. For purposes of this definition, ?Value? means, with respect to any share of stock, the value of such share determined by Walter under principles applicable for purposes of Section 1504 of the Internal Revenue Code of 1986, as amended.
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