424B5
Filed
Pursuant to Rule 424(b)(5)
Registration No.:
333-159845
PROSPECTUS SUPPLEMENT
(To prospectus dated June 16, 2009)
32,280,000 Shares
Mueller Water Products,
Inc.
Series A Common
Stock
We are offering 32,280,000 shares of our Series A
common stock in this offering. Our Series A common stock
trades on the New York Stock Exchange under the symbol
MWA. On September 17, 2009, the last sale price
of our Series A common stock as reported on the New York
Stock Exchange was $4.95 per share.
Investing in our Series A common stock involves risks.
You should carefully consider the risk factors beginning on
page S-9
of this prospectus supplement, the risk factors on page 4
of the accompanying prospectus, the risk factors beginning on
page 12 of our Annual Report on
Form 10-K
for the year ended September 30, 2008 and the risk factors
beginning on page 42 of our Quarterly Report on
Form 10-Q
for the quarter ended June 30, 2009 before purchasing
shares of our Series A common stock.
|
|
|
|
|
|
|
Per Share
|
|
Total
|
|
Public offering price
|
|
$4.75
|
|
$153,330,000
|
Underwriting discount
|
|
$.2612
|
|
$8,431,536
|
Proceeds, before expenses, to Mueller Water Products, Inc.
|
|
$4.4888
|
|
$144,898,464
|
To the extent that the underwriters sell more than
32,280,000 shares of Series A common stock, the
underwriters have the option to purchase an additional
4,842,000 shares of Series A common stock from us at
the initial price to the public less the underwriting discount,
within 30 days of this prospectus supplement.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus supplement or the
accompanying prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The shares of Series A common stock will be ready for
delivery on or about September 23, 2009.
Joint
Book-Running Managers
|
|
BofA
Merrill Lynch |
Goldman, Sachs & Co. |
|
|
|
Robert
W. Baird & Co. |
Morgan
Stanley |
SunTrust
Robinson Humphrey |
|
|
BB&T
Capital Markets |
Brean Murray, Carret & Co., LLC |
The date of this prospectus supplement is September 17,
2009.
TABLE OF
CONTENTS
Prospectus
Supplement
|
|
|
|
|
|
|
Page
|
|
|
|
|
S-1
|
|
|
|
|
S-8
|
|
|
|
|
S-8
|
|
|
|
|
S-9
|
|
|
|
|
S-11
|
|
|
|
|
S-12
|
|
|
|
|
S-13
|
|
|
|
|
S-13
|
|
|
|
|
S-14
|
|
|
|
|
S-20
|
|
|
|
|
S-23
|
|
|
|
|
S-23
|
|
|
Prospectus
|
|
|
|
3
|
|
|
|
|
3
|
|
|
|
|
4
|
|
|
|
|
4
|
|
|
|
|
4
|
|
|
|
|
5
|
|
|
|
|
5
|
|
|
|
|
5
|
|
|
|
|
6
|
|
|
|
|
8
|
|
|
|
|
16
|
|
|
|
|
17
|
|
|
|
|
19
|
|
|
|
|
20
|
|
|
|
|
22
|
|
|
|
|
22
|
|
This document is in two parts. The first part is this prospectus
supplement, which describes the specific terms of this
Series A common stock offering and also adds to and updates
information contained in the accompanying prospectus and the
documents incorporated by reference into the prospectus. The
second part, the accompanying prospectus, gives more general
information, some of which does not apply to this offering. If
the description of the offering varies between this prospectus
supplement and the accompanying prospectus, you should rely on
the information contained in this prospectus supplement.
However, if any statement in one of these documents is
inconsistent with a statement in another document having a later
date for example, a document incorporated by
reference into the accompanying prospectus the
statement in the document having the later date modifies or
supersedes the earlier statement.
You should rely only on the information contained in this
prospectus supplement, contained in or incorporated by reference
into the accompanying prospectus to which we have referred you
or contained in any free writing prospectus prepared by or on
behalf of us. We have not authorized anyone to provide you with
information that is different. The information contained in this
prospectus supplement and contained, or
incorporated by reference, into the accompanying prospectus is
accurate only as of the respective dates thereof, regardless of
the time of delivery of this prospectus supplement and the
accompanying prospectus or of any sale of our Series A
common stock. It is important for you to read and consider all
information contained in this prospectus supplement and the
accompanying prospectus, including the documents incorporated by
reference therein, in making your investment decision. You
should also read and consider the information in the documents
to which we have referred you under the caption Where You
Can Find More Information in the accompanying prospectus.
References in this prospectus supplement and in the accompanying
prospectus to we, us, our,
the Company or Mueller Water Products or
other similar terms mean Mueller Water Products, Inc. and its
consolidated subsidiaries, unless we state otherwise or the
context indicates otherwise.
In this prospectus supplement and in the accompanying
prospectus, we rely on and refer to information and statistics
from third-party sources regarding economic conditions and
trends, the demand for our water infrastructure, flow control
and piping component system products and the competitive
conditions we face in serving our customers and end users. We
believe that these sources of information and estimates are
reliable and accurate, but we have not independently verified
them.
Some, but not all of the companies that compete in our
particular industry segments are publicly traded as of the date
of this prospectus supplement. Accordingly, other than certain
data with respect to fire hydrants, ductile iron pipe and water
valves, no current public information is available with respect
to the size of such markets or our relative strength or
competitive position. Our statements in this prospectus
supplement and in the accompanying prospectus about our relative
market strength and competitive position with respect to other
products are based on our beliefs, internal studies and our
judgments concerning industry trends.
S-ii
SUMMARY
This summary highlights selected information contained in or
incorporated by reference into this prospectus supplement and
the accompanying prospectus, but may not contain all information
that may be important to you. This prospectus supplement and the
accompanying prospectus include specific terms of this offering,
information about our businesses and financial data. We
encourage you to read this prospectus supplement, the
accompanying prospectus and the documents incorporated by
reference therein in their entirety before making an investment
decision. Unless otherwise indicated, this prospectus supplement
assumes no exercise of the underwriters option to purchase
additional shares of Series A common stock. Our fiscal year
ends September 30.
MUELLER
WATER PRODUCTS
We are a leading North American manufacturer and marketer of a
broad range of water infrastructure, flow control and piping
component system products for use in water distribution networks
and water treatment facilities. We also act as a distributor,
especially in Canada, for products we manufacture and products
that are manufactured by other companies. Our broad product
portfolio includes engineered valves, fire hydrants, pipe
fittings, water meters and ductile iron pipe, which are used by
municipalities, as well as the non-residential and residential
construction, heating, ventilation and air conditioning (HVAC),
fire protection, industrial, energy and oil & gas
industries. Our products enjoy leading positions due to their
strong brand recognition and reputation for quality and service.
We believe that we have one of the largest installed bases of
iron gate valves and fire hydrants in the United States. At
June 30, 2009, our installed product base included more
than three million fire hydrants and more than ten million iron
gate valves. Because of our product quality and brand strength,
we have products that are specified for use in 99 of the top 100
metropolitan areas in the United States. Our large installed
base, broad product range and well-known brands have led to
long-standing relationships with the key distributors of our
products. Approximately 75% of our net sales during fiscal 2008
came from products for which we believe we have a leadership
position in the United States and Canada. For fiscal 2008, our
net sales were $1,859.3 million and income from operations
was $146.1 million. For the twelve months ended
June 30, 2009, our net sales were $1,550.0 million.
We manage our businesses and report operations through three
distinct business segments, based largely upon the products that
they sell and the customers that they serve: Mueller Co.,
U.S. Pipe and Anvil.
Mueller
Co.
Mueller Co. manufactures valves for water and gas systems,
including butterfly, iron gate, tapping, check, plug and ball
valves, as well as
dry-barrel
and
wet-barrel
fire hydrants and a full line of metering and pipe repair
products such as clamps and couplings used to repair leaks in
water and gas distribution systems. The business also provides
services including installation, replacement and maintenance on
new and existing installed products for the water infrastructure
industry. Sales of Mueller Co. products are driven principally
by spending on water and wastewater infrastructure upgrade,
repair and replacement and construction of new water and
wastewater infrastructure, which is typically associated with
new residential construction. We estimate that a majority of
Mueller Co.s fiscal 2008 sales were for infrastructure
upgrade, repair and replacement, with the remainder for new
infrastructure.
U.S.
Pipe
U.S. Pipe manufactures a broad line of ductile iron pipe,
restraint joint products, fittings and other ductile cast iron
products. U.S. Pipe products are sold primarily to
waterworks distributors, contractors, municipalities, utilities
and other governmental agencies. A substantial percentage of
ductile iron pipe orders result from contracts that are bid by
contractors or directly issued by municipalities or utilities.
We estimate that approximately half of U.S. Pipes
fiscal 2008 sales were for new infrastructure, with the
remainder for infrastructure upgrade, repair and replacement.
S-1
Anvil
Anvil manufactures and sources a broad range of products
including a variety of fittings, couplings, hangers, nipples,
valves and related pipe products for use in non-residential
construction, industrial, power and oil & gas
applications. The majority of Anvils products are sold
through a network of distributors to a wide variety of end
users. These distributors are serviced primarily through
Anvils distribution centers located in the United States
and Canada. We believe Anvils network of distributors is
the largest such distribution network serving similar end users.
The table below illustrates each segments net sales during
fiscal 2008, major product lines, product positions, selected
brand names and primary end users.
|
|
|
|
|
|
|
|
|
Mueller Co.
|
|
U.S. Pipe
|
|
Anvil
|
|
Net sales (in millions)
|
|
$718.1
|
|
$546.0
|
|
$595.2
|
Major product lines (product position in U.S. and Canada*)
|
|
Fire hydrants (#1)
Iron gate valves (#1)
Butterfly and ball valves (#1)
Plug valves (#2)
Brass water products (#2)
|
|
Ductile iron pipe (#1)
|
|
Pipe fittings and
couplings (#1)
Grooved products (#2)
Pipe hangers (#2)
|
Selected brand names
|
|
Mueller®
Pratt®
Millikentm
Jones®
Hersey®
HydroGate®
Canada
Valvetm
Mueller
Servicetm
|
|
U.S.
PIPE®
TYTON®
TYTON
JOINT®
TR
FLEX®
USIFLEX®
FIELD
LOK®
MJ FIELD
LOK®
HP
LOK®
FAST FAB
Catawissatm
TRIM
TYTON®
|
|
Anvil®
AnvilStar®
SPF®
Merit®
Gruvlok®
Becktm
J.B.
Smithtm
Anvil-Strut®
|
Primary end users
|
|
Water and wastewater infrastructure
|
|
Water and wastewater infrastructure
|
|
HVAC, fire protection, industrial, energy
and oil & gas
|
|
|
|
* |
|
Product position information is based on our estimates of our
sales compared to the sales of our principal competitors for
these product categories. Our estimates were based on internal
analyses and information from trade associations and our
distributor networks. |
Our principal executive offices are located at 1200 Abernathy
Road N.E., Suite 1200, Atlanta, Georgia 30328.
COMPETITIVE
STRENGTHS
We believe that a number of important competitive strengths
drive our success, differentiate us from our competitors and
support our market leadership. These competitive strengths
include:
Leading
Brands and Product Portfolio.
We believe that we have the most comprehensive water
infrastructure and flow control product line in our industry.
Our products benefit from broad brand recognition and a strong
reputation for quality and service, resulting in leading
positions in their respective segments. For the year ended
September 30, 2008, approximately 75% of our net sales were
from products we believe enjoy a leadership position in the
United States and Canada.
S-2
Complete
Water Transmission Solutions.
We have significant scale in water infrastructure and delivery
systems and are one of the largest suppliers to the water
products sector with a strong platform to facilitate potential
expansion into related products and service businesses. Our
broad product portfolio of highly engineered valves, hydrants,
ductile iron pipe and pipe fittings provides distributors and
end users with a comprehensive source of supply and creates a
competitive advantage for us. From the source to homes and
businesses across North America, water flows through or is
controlled by the type of products we manufacture, making
Mueller Water Products an integral part of the North American
water infrastructure system.
Large and
Growing Installed Base.
We maintain one of the largest installed bases of water
infrastructure products in the United States and Canada,
including more than three million fire hydrants and more than
ten million iron gate valves at June 30, 2009. After our
products are installed, it is difficult for an end user to
change to a competitive product due to the inventory of parts
required to support a large installed base and due to the
life/safety nature of some of our products.
Leading
Specification Position.
Due to our strong brand recognition and large installed base, we
have products that are specified as an approved
product for use in 99 of the top 100 metropolitan areas in the
United States. The product specification approval process for a
municipality generally takes a minimum of one year and there are
approximately 54,000 municipal water systems in the United
States. This strong specification position has contributed to
long-standing relationships with top distributors and creates a
strong demand base for our products.
Established
and Extensive Distribution Channels.
We maintain long-standing relationships with the leading
distributors in our major markets throughout the United States
and Canada. While we do not have long-term contracts with our
distributors, we believe that our superior product quality and
the technical support we provide enable us to maintain strong
long-term relationships with our network of more than 5,000
independent distributor locations. The average relationship with
our top 10 distributors for fiscal 2008 is more than
20 years.
Advanced,
Low-Cost Manufacturing Capabilities.
We believe our historical capital investment in manufacturing
technologies helps us reduce the costs of producing our cast,
malleable and ductile iron and brass products. We believe that
we are the only company in North America that uses the
technologically advanced lost foam casting process to
manufacture fire hydrant and iron gate valve castings, which
significantly reduces the manual labor and machining time
otherwise needed to finish cast products.
Highly
Experienced, Proven Senior Operational Management
Team.
We are led by an experienced management team with a long and
successful track record, enabling us to recognize and capitalize
upon attractive opportunities in our key markets. Our senior
operational management team has an average of approximately
30 years of experience in manufacturing businesses and has
substantial experience in cost management rationalization and
efficient manufacturing processes. Beginning in 2006 and
continuing through 2009, in conjunction with declining end
markets, we began a series of cost saving initiatives focused on
better aligning our cost structure with demand. These
initiatives have resulted in a reduction in headcount of
approximately 1,500 and the closure of multiple manufacturing
facilities. Additionally, we have successfully instituted
numerous temporary cost cutting programs which may be reversed
as our end market demand improves.
S-3
BUSINESS
STRATEGY
Our business strategy is focused on maintaining our market
leadership and competitive differentiation, while growing
revenues and enhancing profitability. Key elements of our
long-term strategy follow:
We Will
Maintain Our Leadership Positions with Our Customers and End
Users.
We will maintain our leadership positions with our customers and
end users by leveraging our large installed base, the
specification of our products as accepted for use in 99 of the
top 100 metropolitan areas in the United States, our established
and extensive distribution channels and our broad range of
leading water infrastructure, flow control and piping component
system products, as well as by developing and introducing
additional products and services.
We Will
Continue to Enhance Operational Excellence.
We will continue to pursue superior product engineering, design
and manufacturing by investing in technologically advanced
manufacturing processes such as lost foam casting and automated
molding machinery. We will also seek opportunities to improve
manufacturing efficiency safely, such as through the completion
of a new automated ductile iron pipe operation, increased
utilization of our manufacturing facility in China to produce
additional high quality and cost-effective products and
continuing our cost-reduction and efficiency initiatives. We
will use LEAN manufacturing techniques and Six Sigma business
improvement methodologies where appropriate to capture higher
levels of operational efficiencies. We will also continue to
evaluate sourcing products wherever doing so will lower our
costs while maintaining quality.
We Will
Increase the Breadth and Depth of Our Products and
Services.
We will continue to focus on delivering value to our customers
and end users by increasing the breadth and depth of our
products and services. Further, through acquisition and internal
development of proprietary technologies and intellectual
capital, we will continue to develop products and services
recognized for their quality and reliability for our customers
and end users. For example, Mueller Co. has introduced a new
product that blocks reverse flows of water-borne contaminants
from a fire hydrant into a water main. Additionally,
U.S. Pipe expanded its product offerings of fabricated,
coated and lined pipe products. We will continue to seek to add
value to our customers and end users through acquisitions and
internal development.
We Will
Expand Internationally.
We will selectively pursue attractive international acquisitions
that enhance our existing product offerings, strengthen our
current competitive positions, enable us to enter new markets,
expand our technological capabilities or provide synergy
opportunities.
S-4
THE
OFFERING
|
|
|
Series A common stock offered |
|
32,280,000 shares |
|
Option to purchase additional shares |
|
We have granted the underwriters a
30-day
option to purchase up to an additional 4,842,000 shares of
Series A common stock. |
|
Series A common stock to be outstanding after this offering |
|
148,948,887 shares (or 153,790,887 shares if the
underwriters option to purchase additional shares is
exercised in full) |
|
Use of proceeds |
|
We estimate that our proceeds from this offering will be
approximately $144.1 million (after deducting underwriting
discounts and commissions and estimated offering expenses paid
and payable by us). We intend to use all of these net proceeds
to repay a portion of the indebtedness outstanding under our
credit agreement. See Use of Proceeds. |
|
New York Stock Exchange symbol |
|
MWA |
|
Conflicts of Interest |
|
As described in Use of Proceeds, the net proceeds of
this offering will be used to pay down borrowings under our
credit agreement. Because more than 5% of the proceeds of this
offering, not including underwriting compensation, may be
received by one of the underwriters in this offering or by one
of their affiliates, this offering is being conducted in
compliance with NASD Rule 2720, as administered by the
Financial Industry Regulatory Authority (FINRA).
Pursuant to that rule, the appointment of a qualified
independent underwriter is not necessary in connection with this
offering, as the offering is of a class of equity securities for
which a bona fide public market, as defined by FINRA
rules, exists. |
RISK
FACTORS
Investment in shares of our Series A common stock involves
substantial risks. See Risk Factors immediately
following this summary, the risk factors on page 4 of the
accompanying prospectus, the risk factors beginning on
page 12 of our Annual Report on
Form 10-K
for the year ended September 30, 2008 and the risk factors
beginning on page 42 of our Quarterly Report on
Form 10-Q
for the quarter ended June 30, 2009 and other information
included in or incorporated by reference into this prospectus
supplement or the accompanying prospectus for a discussion of
certain risks relating to an investment in shares of our
Series A common stock.
S-5
SUMMARY
CONSOLIDATED FINANCIAL DATA
We derived the summary historical financial data as of and for
the years ended September 30, 2008, 2007, and 2006 from our
audited financial statements included in our Annual Reports on
Form 10-K
for the years ended September 30, 2008 and
September 30, 2007. We derived the summary historical
financial data as of and for the nine months ended June 30,
2009 and 2008 from our unaudited financial statements included
in our Quarterly Reports on
Form 10-Q
for the quarters ended June 30, 2009 and June 30,
2008. The data at June 30 and for the nine-month periods then
ended have not been audited and are not necessarily indicative
of the results that may be expected for the entire year. The
historical results indicated below and elsewhere in this
prospectus supplement are not necessarily indicative of future
performance.
The following table should be read together with, and is
qualified in its entirety by reference to, the historical
financial statements and the notes thereto included in our
Annual Report on
Form 10-K
for the year ended September 30, 2008 and our Quarterly
Report on
Form 10-Q
for the quarter ended June 30, 2009, each of which is
incorporated by reference into this prospectus.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of and for the
|
|
|
As of and for the
|
|
|
|
Nine Months Ended June 30,
|
|
|
Year Ended September 30,
|
|
|
|
2009
|
|
|
2008
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
|
(In millions, except per share data)
|
|
|
Statement of operations data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales
|
|
$
|
1,053.1
|
|
|
$
|
1,362.4
|
|
|
$
|
1,859.3
|
|
|
$
|
1,849.0
|
|
|
$
|
1,933.4
|
|
Cost of sales(1)
|
|
|
865.4
|
|
|
|
1,045.8
|
|
|
|
1,420.3
|
|
|
|
1,385.8
|
|
|
|
1,525.7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
187.7
|
|
|
|
316.6
|
|
|
|
439.0
|
|
|
|
463.2
|
|
|
|
407.7
|
|
Selling, general and administrative expenses(2)
|
|
|
184.7
|
|
|
|
200.7
|
|
|
|
274.6
|
|
|
|
253.2
|
|
|
|
250.1
|
|
Impairment(3)
|
|
|
970.9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restructuring(4)
|
|
|
45.9
|
|
|
|
17.9
|
|
|
|
18.3
|
|
|
|
|
|
|
|
28.6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from operations
|
|
|
(1,013.8
|
)
|
|
|
98.0
|
|
|
|
146.1
|
|
|
|
210.0
|
|
|
|
129.0
|
|
Interest expense, net
|
|
|
51.1
|
|
|
|
54.8
|
|
|
|
72.4
|
|
|
|
86.8
|
|
|
|
107.4
|
|
Loss on early extinguishment of debt
|
|
|
2.3
|
|
|
|
|
|
|
|
|
|
|
|
36.5
|
|
|
|
8.5
|
|
Gain on repurchase of debt
|
|
|
(1.5
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes
|
|
|
(1,065.7
|
)
|
|
|
43.2
|
|
|
|
73.7
|
|
|
|
86.7
|
|
|
|
13.1
|
|
Income tax expense (benefit)
|
|
|
(79.9
|
)
|
|
|
18.8
|
|
|
|
31.7
|
|
|
|
38.5
|
|
|
|
8.0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
(985.8
|
)
|
|
$
|
24.4
|
|
|
$
|
42.0
|
|
|
$
|
48.2
|
|
|
$
|
5.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
(8.52
|
)
|
|
$
|
0.21
|
|
|
$
|
0.36
|
|
|
$
|
0.42
|
|
|
$
|
0.05
|
|
Diluted
|
|
$
|
(8.52
|
)
|
|
$
|
0.21
|
|
|
$
|
0.36
|
|
|
$
|
0.42
|
|
|
$
|
0.05
|
|
Weighted average shares outstanding:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
115.7
|
|
|
|
115.0
|
|
|
|
115.1
|
|
|
|
114.7
|
|
|
|
95.5
|
|
Diluted
|
|
|
115.7
|
|
|
|
115.4
|
|
|
|
115.5
|
|
|
|
115.3
|
|
|
|
95.5
|
|
Other financial data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating activities
|
|
$
|
68.3
|
|
|
$
|
105.9
|
|
|
$
|
182.0
|
|
|
$
|
155.1
|
|
|
$
|
107.6
|
|
Investing activities
|
|
|
(27.0
|
)
|
|
|
(53.4
|
)
|
|
|
(78.5
|
)
|
|
|
(113.7
|
)
|
|
|
(81.4
|
)
|
Financing activities
|
|
|
(143.7
|
)
|
|
|
(9.4
|
)
|
|
|
(18.1
|
)
|
|
|
(25.6
|
)
|
|
|
55.2
|
|
Capital expenditures
|
|
|
22.7
|
|
|
|
60.8
|
|
|
|
88.1
|
|
|
|
88.3
|
|
|
|
71.1
|
|
Balance sheet data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
80.1
|
|
|
$
|
141.9
|
|
|
$
|
183.9
|
|
|
$
|
98.9
|
|
|
$
|
81.4
|
|
Working capital
|
|
|
603.3
|
|
|
|
771.5
|
|
|
|
755.6
|
|
|
|
709.7
|
|
|
|
680.0
|
|
Property, plant and equipment, net
|
|
|
296.8
|
|
|
|
347.5
|
|
|
|
356.8
|
|
|
|
351.8
|
|
|
|
337.0
|
|
Total assets
|
|
|
1,801.6
|
|
|
|
3,053.8
|
|
|
|
3,090.2
|
|
|
|
3,009.2
|
|
|
|
2,989.9
|
|
Total debt
|
|
|
961.2
|
|
|
|
1,096.7
|
|
|
|
1,095.5
|
|
|
|
1,100.5
|
|
|
|
1,127.3
|
|
Total liabilities
|
|
|
1,468.2
|
|
|
|
1,721.3
|
|
|
|
1,761.3
|
|
|
|
1,698.2
|
|
|
|
1,762.9
|
|
Total stockholders equity
|
|
|
333.4
|
|
|
|
1,332.5
|
|
|
|
1,328.9
|
|
|
|
1,311.0
|
|
|
|
1,227.0
|
|
footnotes on following page
S-6
|
|
|
(1) |
|
The year ended September 30, 2006 includes
$70.4 million of adjustments related to valuing Mueller Co.
and Anvil inventory acquired on October 3, 2005 at fair
value and $21.3 million of inventory write-offs and higher
per unit overhead costs resulting from the closure of U.S.
Pipes Chattanooga, Tennessee plant. |
|
(2) |
|
Includes related party corporate charges from Walter Energy,
Inc. (formerly Walter Industries, Inc., our former parent) of
$1.6 million and $8.0 million during the years ended
September 30, 2007 and 2006, respectively. |
|
(3) |
|
The nine months ended June 30, 2009 includes goodwill
impairment charges of $869.5 million and other impairment
charges of $101.4 million. The goodwill impairment charges
resulted from interim impairment testing performed as a result
of the existence of conditions indicating that impairment may
have occurred, particularly decreases in the market
capitalization of our equity securities. These charges fully
impaired our goodwill. |
|
(4) |
|
The nine months ended June 30, 2009 includes a
$38.5 million charge primarily for the impairment of
property, plant and equipment at U.S. Pipes North
Birmingham, Alabama facility and a $7.4 million charge
mostly for severance at various locations. The nine months ended
June 30, 2008 includes $17.9 million and the year
ended September 30, 2008 includes $18.3 million to
cease manufacturing operations at U.S. Pipes Burlington,
New Jersey facility. The year ended September 30, 2006
includes $28.6 million to close U.S. Pipes
Chattanooga, Tennessee plant and transfer the valve and fire
hydrant production of that plant to Mueller Co.s
Chattanooga, Tennessee and Albertville, Alabama plants. |
S-7
SPECIAL
NOTE ABOUT FORWARD-LOOKING STATEMENTS
Some of the statements in this prospectus supplement and the
accompanying prospectus, the documents incorporated by reference
into this prospectus and in any prospectus supplement may be
deemed forward-looking statements within the meaning
of Section 21E of the Securities Exchange Act of 1934 (the
Exchange Act), and Section 27A of the
Securities Act of 1933 (the Securities Act). All
statements, other than statements of historical fact, that
address activities, events or developments that we intend,
expect, project, believe or anticipate will or may occur in the
future are forward-looking statements. Such statements are based
upon certain assumptions and assessments made by us in light of
our experience and our perception of historical trends, current
conditions and expected future developments. Actual results and
the timing of events may differ significantly from those
projected in such forward-looking statements due to a number of
factors, including those set forth in the sections entitled
Risk Factors in this prospectus supplement, the
accompanying prospectus, our Annual Report on
Form 10-K
for the year ended September 30, 2008 and our Quarterly
Report on
Form 10-Q
for the quarter ended June 30, 2009.
INCORPORATION
BY REFERENCE
We file annual, quarterly and current reports, proxy statements
and other information with the Securities and Exchange
Commission (SEC). You may read and copy any document
that we file at the Public Reference Room of the SEC at
100 F Street, N.E., Washington, D.C. 20549. You
may obtain information on the operation of the Public Reference
Room by calling the SEC at
1-800-SEC-0330.
In addition, the SEC maintains an Internet site at
http://www.sec.gov,
from which interested persons can electronically access our SEC
filings, including the registration statement and the exhibits
and schedules thereto.
The SEC allows us to incorporate by reference the
information we file with them, which means that we can disclose
important information to you by referring you to those
documents. The information incorporated by reference is an
important part of this prospectus supplement and the
accompanying prospectus, and information that we file later with
the SEC and which is incorporated by reference will
automatically update and supersede this information. We
incorporate by reference the documents listed below and all
future filings made pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act.
|
|
|
|
|
Our Annual Report on
Form 10-K
for the year ended September 30, 2008 and Quarterly Reports
on
Form 10-Q
for the fiscal quarters ended December 31, 2008,
March 31, 2009 and June 30, 2009;
|
|
|
|
Our Current Reports on
Form 8-K
filed on October 6, 2008, October 31, 2008,
January 29, 2009, February 6, 2009, May 13, 2009
and June 18, 2009; and
|
|
|
|
The description of our Series A common stock contained in
our Registration Statement on
Form S-1/A
filed on May 19, 2006.
|
Copies of the above documents (other than exhibits to such
documents) may be obtained upon request without charge upon
writing to Mueller Water Products, Inc., Attn: Corporate
Secretary, 1200 Abernathy Road N.E., Suite 1200, Atlanta,
Georgia 30328.
S-8
RISK
FACTORS
Investing in shares of our Series A common stock
involves risks. You should carefully consider the following risk
factors and the risk factors included in our Annual Report on
Form 10-K
for the year ended September 30, 2008 and Quarterly Report
on
Form 10-Q
for the quarter ended June 30, 2009, in addition to all
other information contained in this prospectus supplement and
the accompanying prospectus and incorporated by reference into
the accompanying prospectus before deciding to invest in shares
of our Series A common stock. The risks and uncertainties
below and in our Annual Report on
Form 10-K
for the year ended September 30, 2008 and Quarterly Report
on
Form 10-Q
for the quarter ended June 30, 2009 are not the only ones
facing us. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial may become
important factors that affect us. If any of such risks or the
risks described below and in our Annual Report on
Form 10-K
for the year ended September 30, 2008 and our Quarterly
Report on
Form 10-Q
for the quarter ended June 30, 2009 occur, our businesses,
financial condition or results of operations could be materially
and adversely affected.
Risks
Related to Investing in Our Series A Common Stock
The
market price of our Series A common stock may be volatile
and you could lose part or all of your investment.
Volatility in the market price of our Series A common stock
may prevent you from being able to sell your shares at or above
the price you paid for your shares. During the period from
October 1, 2007 to September 17, 2009, our
Series A common stock has fluctuated from an intraday high
of $14.18 per share to an intraday low of $1.48 per share.
The market price of our Series A common stock has
fluctuated significantly in the recent past and could fluctuate
significantly in the future for various reasons, which include:
|
|
|
|
|
actual or anticipated fluctuations in our quarterly or annual
earnings or those of other companies in our industry;
|
|
|
|
strategic actions by us or our competitors, such as
acquisitions, restructurings, dispositions or financings;
|
|
|
|
changes in market valuations or operating performance of our
competitors or companies similar to ours;
|
|
|
|
additions and departures of key personnel;
|
|
|
|
our financial performance and variance in our financial
performance from the expectations of market analysts, including
changes in earnings estimates or recommendations by research
analysts who track our Series A common stock or the stocks
of other companies in our industry;
|
|
|
|
changes in accounting standards, policies, guidance,
interpretations or principles applicable to our business;
|
|
|
|
general global macroeconomic conditions;
|
|
|
|
economic, financial, geopolitical, regulatory or judicial events
that affect us or financial markets generally; and
|
|
|
|
risks enumerated elsewhere in this section.
|
In addition, in recent years, the global equity markets have
experienced substantial price and volume fluctuations. In the
fourth quarter of calendar 2008 and first quarter of calendar
2009, the volatility in capital markets reached extreme levels.
This volatility has had a significant impact on the market price
of securities issued by many companies including us and the
other companies in our industry. The price of our Series A
common stock could fluctuate based upon factors that have little
or nothing to do with our Company, and these fluctuations could
materially reduce our stock price and your ability to sell your
shares.
S-9
We may
change the dividend policy for our common shares in the
future.
Since the quarter ended September 30, 2006, our Board of
Directors has declared quarterly common stock dividends of
$0.0175 per share. The decision to declare and pay dividends on
our Series A common stock in the future, as well as the
timing, amount and composition of any such future dividends,
will be at the sole discretion of our Board of Directors and
will depend on our earnings, liquidity, financial condition,
capital requirements, contractual prohibitions or other
limitations under our indebtedness, state law and such other
factors as our Board of Directors deems relevant.
Our credit agreement limits us to paying no more than
$10 million in cash dividends to our stockholders in any
fiscal year, subject to certain exceptions. In fiscal 2008, we
paid an aggregate of $8.1 million in cash dividends to our
stockholders. Our credit agreement could limit our ability to
increase our cash dividends per share and could require us to
reduce our cash dividends per share depending on the number of
shares of common stock outstanding after the offering.
We may
engage in future equity and equity-related offerings that may be
dilutive of our Series A common stock.
Subject to the
90-day
lock-up
restrictions described in Underwriting, we are not
restricted from issuing additional Series A common stock or
preferred stock, including any securities that are convertible
into or exchangeable for, or that represent the right to
receive, Series A common stock or preferred stock or any
substantially similar securities. In most circumstances,
stockholders will not be entitled to vote on whether or not we
issue additional Series A common stock. The market price of
our Series A common stock could decline as a result of
sales of a large number of shares of our Series A common
stock in the market after this offering or the perception that
such sales could occur.
S-10
USE OF
PROCEEDS
We expect to receive net proceeds from the sale of
32,280,000 shares of Series A common stock in this
offering of approximately $144.1 million (after deducting
underwriting discounts and commissions and estimated offering
expenses paid and payable by us). If the underwriters exercise
their option to purchase additional shares in full, we expect to
receive total net proceeds from this offering of approximately
$165.9 million (after deducting underwriting discounts and
commissions and estimated offering expenses paid and payable by
us).
Our credit agreement requires us to use at least 50% of the net
proceeds from any equity offering to reduce borrowings under the
credit agreement. We intend to use all of the net proceeds of
this offering to reduce such indebtedness. At June 30,
2009, there were outstanding borrowings of $539.4 million
under our credit agreement at a weighted average interest rate
of 9.92% with maturities ranging from September 2009 through May
2014. In August 2009, we made prepayments in the amount of
$50 million using cash on hand, bringing our outstanding
borrowings under our credit agreement to $489.4 million.
S-11
CAPITALIZATION
The following table shows our consolidated cash and cash
equivalents and capitalization at June 30, 2009:
|
|
|
|
|
on a historical basis; and
|
|
|
|
on an as adjusted basis to reflect the consummation of this
offering (assuming no exercise of the underwriters option
to purchase additional shares) and the application of
approximately $144.1 million in net proceeds to reduce
borrowings under our credit agreement. See Use of
Proceeds in this prospectus supplement.
|
|
|
|
|
|
|
|
|
|
|
|
At June 30, 2009
|
|
|
|
|
|
|
As
|
|
|
|
Actual
|
|
|
Adjusted
|
|
|
|
(In millions)
|
|
|
Cash and cash equivalents(1)
|
|
$
|
80.1
|
|
|
$
|
80.1
|
|
|
|
|
|
|
|
|
|
|
Debt(1):
|
|
|
|
|
|
|
|
|
2007 Credit Agreement:
|
|
|
|
|
|
|
|
|
Revolver(2)
|
|
|
|
|
|
|
|
|
Term Loan A
|
|
|
115.1
|
|
|
|
84.4
|
|
Term Loan B
|
|
|
424.3
|
|
|
|
310.9
|
|
73/8% Senior
Subordinated Notes
|
|
|
420.0
|
|
|
|
420.0
|
|
Other
|
|
|
1.8
|
|
|
|
1.8
|
|
|
|
|
|
|
|
|
|
|
Total debt
|
|
|
961.2
|
|
|
|
817.1
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity:
|
|
|
|
|
|
|
|
|
Series A common stock, par value $0.01 per share,
600,000,000 authorized, 116,530,594 shares outstanding and
148,810,594 outstanding, as adjusted
|
|
|
1.2
|
|
|
|
1.5
|
|
Additional paid-in capital
|
|
|
1,433.5
|
|
|
|
1,577.3
|
|
Accumulated deficit
|
|
|
(1,067.4
|
)
|
|
|
(1,068.5
|
)
|
Accumulated other comprehensive income (loss)
|
|
|
(33.9
|
)
|
|
|
(33.9
|
)
|
|
|
|
|
|
|
|
|
|
Total stockholders equity
|
|
|
333.4
|
|
|
|
476.4
|
|
|
|
|
|
|
|
|
|
|
Total capitalization
|
|
$
|
1,294.6
|
|
|
$
|
1,293.5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
On August 14, 2009, we repaid $25.0 million of
borrowings under our credit agreement. On August 28, 2009,
we repaid an additional $25.0 million of borrowings under
our credit agreement. Both prepayments were made using cash on
hand and were made on a pro rata basis between Term Loan A and
Term Loan B. |
(2) |
|
Our revolving credit facility provides for borrowings of up to
$200.0 million, including letters of credit, and terminates
in May 2012. At June 30, 2009, no borrowings were
outstanding under the revolving credit facility and letters of
credit outstanding under the revolving credit facility were
$42.9 million. |
S-12
PRICE
RANGE OF SERIES A COMMON STOCK
Our Series A common stock is traded on the New York Stock
Exchange under the symbol MWA. The following table
sets forth the range of high and low intraday sales prices per
share of our Series A common stock as reported by the New
York Stock Exchange and the dividends paid per share of
Series A common stock:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividends
|
|
|
|
|
|
|
|
|
|
Paid per
|
|
|
|
High
|
|
|
Low
|
|
|
Share
|
|
|
Fiscal year ended September 30, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First Quarter
|
|
$
|
16.34
|
|
|
$
|
13.16
|
|
|
$
|
0.0175
|
|
Second Quarter
|
|
|
16.06
|
|
|
|
13.63
|
|
|
|
0.0175
|
|
Third Quarter
|
|
|
19.35
|
|
|
|
13.56
|
|
|
|
0.0175
|
|
Fourth Quarter
|
|
|
16.73
|
|
|
|
11.77
|
|
|
|
0.0175
|
|
Fiscal year ended September 30, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
First Quarter
|
|
$
|
14.18
|
|
|
$
|
8.98
|
|
|
$
|
0.0175
|
|
Second Quarter
|
|
|
9.60
|
|
|
|
6.64
|
|
|
|
0.0175
|
|
Third Quarter
|
|
|
10.53
|
|
|
|
7.50
|
|
|
|
0.0175
|
|
Fourth Quarter
|
|
|
12.71
|
|
|
|
7.12
|
|
|
|
0.0175
|
|
Fiscal year ending September 30, 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
First Quarter
|
|
$
|
9.07
|
|
|
$
|
3.40
|
|
|
$
|
0.0175
|
|
Second Quarter
|
|
|
8.47
|
|
|
|
1.48
|
|
|
|
0.0175
|
|
Third Quarter
|
|
|
5.17
|
|
|
|
3.05
|
|
|
|
0.0175
|
|
Fourth Quarter (through September 17, 2009)
|
|
|
5.28
|
|
|
|
2.52
|
|
|
|
0.0175
|
|
On September 17, 2009, the last reported sale price for the
Series A common stock as reported by the New York Stock
Exchange was $4.95. At August 31, 2009, we had 145 holders
of record of our Series A common stock.
DIVIDEND
POLICY
Since the quarter ended September 30, 2006, our Board of
Directors has declared quarterly common stock dividends of
$0.0175 per share. The decision to declare and pay dividends on
our Series A common stock in the future, as well as the
timing, amount and composition of any such future dividends,
will be at the discretion of our Board of Directors and will
depend on our earnings, liquidity, financial condition, capital
requirements, contractual prohibitions or other limitations
under our indebtedness, state law and such other factors as our
Board of Directors deems relevant. See Risk
Factors We may change the dividend policy for our
common shares in the future in this prospectus supplement.
S-13
UNDERWRITING
Merrill Lynch, Pierce, Fenner & Smith Incorporated and
Goldman, Sachs & Co. are acting as representatives of
each of the underwriters named below. Subject to the terms and
conditions set forth in an underwriting agreement among us and
the underwriters, we have agreed to sell to the underwriters,
and each of the underwriters has agreed, severally and not
jointly, to purchase from us, the number of shares of
Series A common stock set forth opposite its name below.
|
|
|
|
|
|
|
Number
|
|
Underwriter
|
|
of Shares
|
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
|
|
12,105,000
|
|
Goldman, Sachs & Co.
|
|
|
12,105,000
|
|
Robert W. Baird & Co. Incorporated
|
|
|
2,098,200
|
|
Morgan Stanley & Co. Incorporated
|
|
|
2,098,200
|
|
SunTrust Robinson Humphrey, Inc.
|
|
|
2,098,200
|
|
BB&T Capital Markets, a division of Scott &
Stringfellow, LLC
|
|
|
887,700
|
|
Brean Murray, Carret & Co., LLC
|
|
|
887,700
|
|
|
|
|
|
|
Total
|
|
|
32,280,000
|
|
|
|
|
|
|
Subject to the terms and conditions set forth in the
underwriting agreement, the underwriters have agreed, severally
and not jointly, to purchase all of the shares sold under the
underwriting agreement if any of these shares are purchased. If
an underwriter defaults, the underwriting agreement provides
that the purchase commitments of the nondefaulting underwriters
may be increased or the underwriting agreement may be terminated.
We have agreed to indemnify the underwriters against certain
liabilities, including liabilities under the Securities Act, or
to contribute to payments the underwriters may be required to
make in respect of those liabilities.
The underwriters are offering the shares, subject to prior sale,
when, as and if issued to and accepted by them, subject to
approval of legal matters by their counsel, including the
validity of the shares and other conditions contained in the
underwriting agreement, such as the receipt by the underwriters
of officers certificates and legal opinions. The
underwriters reserve the right to withdraw, cancel or modify
offers to the public and to reject orders in whole or in part.
Commissions
and Discounts
The representatives have advised us that the underwriters
propose initially to offer the shares to the public at the
public offering price set forth on the cover page of this
prospectus and to dealers at that price less a concession not in
excess of $.15 per share. After the initial offering, the public
offering price, concession or any other term of the offering may
be changed.
The following table shows the public offering price,
underwriting discount and proceeds before expenses to us. The
information assumes either no exercise or full exercise by the
underwriters of their option to purchase additional shares.
|
|
|
|
|
|
|
|
|
Per Share
|
|
Without Option
|
|
With Option
|
|
Public offering price
|
|
$4.75
|
|
$153,330,000
|
|
$176,329,500
|
Underwriting discount
|
|
$.2612
|
|
$8,431,536
|
|
$9,696,266
|
Proceeds, before expenses, to
Mueller Water Products, Inc.
|
|
$4.4888
|
|
$144,898,464
|
|
$166,633,234
|
The expenses of the offering, not including the underwriting
discount, are estimated at $750,000 and are payable by us.
S-14
Option to
Purchase Additional Shares
To the extent the underwriters sell more than
32,280,000 shares, we have granted an option to the
underwriters to purchase up to 4,842,000 additional shares at
the public offering price, less the underwriting discount. The
underwriters may exercise this option for 30 days from the
date of this prospectus supplement. If the underwriters exercise
this option, each will be obligated, subject to conditions
contained in the underwriting agreement, to purchase a number of
additional shares proportionate to that underwriters
initial amount reflected in the above table.
No Sales
of Similar Securities
We, our executive officers and directors have agreed not to sell
or transfer any Series A common stock or securities
convertible into, exchangeable for, exercisable for, or
repayable with Series A common stock, for 90 days
after the date of this prospectus without first obtaining the
written consent of each representative. Specifically, we and
these other persons have agreed, with certain limited
exceptions, not to directly or indirectly
|
|
|
|
|
offer, pledge, sell or contract to sell any Series A common
stock,
|
|
|
|
sell any option or contract to purchase any Series A common
stock,
|
|
|
|
purchase any option or contract to sell any Series A common
stock,
|
|
|
|
grant any option, right or warrant for the sale of any
Series A common stock,
|
|
|
|
lend or otherwise dispose of or transfer any Series A
common stock,
|
|
|
|
request or demand that we file a registration statement related
to the Series A common stock, or
|
|
|
|
enter into any swap or other agreement that transfers, in whole
or in part, the economic consequence of ownership of any
Series A common stock whether any such swap or transaction
is to be settled by delivery of shares or other securities, in
cash or otherwise.
|
This lock-up
provision applies to Series A common stock and to
securities convertible into or exchangeable or exercisable for
or repayable with Series A common stock. It also applies to
Series A common stock owned now or acquired later by the
person executing the agreement or for which the person executing
the agreement later acquires the power of disposition. In the
event that either (x) during the last 17 days of
lock-up
period referred to above, we issue an earnings release or
material news or a material event relating to the Company occurs
or (y) prior to the expiration of the
lock-up
period, we announce that we will release earnings results or
become aware that material news or a material event will occur
during the
16-day
period beginning on the last day of the
lock-up
period, the restrictions described above shall continue to apply
until the expiration of the
18-day
period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
The above
lock-up
provisions shall not apply to the shares of Series A common
stock to be sold in this offering or transactions by any person
other than us relating to shares of Series A common stock
acquired in open market transactions after the completion of
this offering.
In addition, the above
lock-up
provision will not preclude:
|
|
|
|
|
issuances of shares of Series A common stock upon the
exercise of an option, warrant or similar security outstanding
as of the date of this prospectus or upon the conversion of
securities outstanding as of the date of this prospectus
supplement;
|
|
|
|
the grants by us of shares of Series A common stock or
options to purchase shares of Series A common stock under
our benefit plans described in this prospectus; provided that no
such options shall vest prior to the 91st day from the date
of this prospectus supplement or the recipients of such grant
agrees to be bound by the restrictions described in this
paragraph for the remainder of the
lock-up
period;
|
S-15
|
|
|
|
|
acquisitions by us of our Series A common stock in open
market transactions after the completion of this offering and
reissuance of such acquired shares to our employees pursuant to
our 2006 Employee Stock Purchase Plan;
|
|
|
|
sales by any person other than us pursuant to a trading plan to
cover withholding taxes on restricted stock units vesting in
July 2009, November 2009 and December 2009 established in
accordance with
Rule 10b5-1
under the Exchange Act in existence on the date of this
prospectus supplement;
|
|
|
|
transfers by directors or executive officers of shares of
Series A common stock by gift or to immediate family
members; and
|
|
|
|
transfers by our directors, executive officers or their personal
representatives upon death or disability or termination of
employment in accordance with the terms of the applicable
employment or other agreements entered into prior to the date of
this prospectus supplement.
|
New York
Stock Exchange Listing
The shares of Series A common stock are listed on the New
York Stock Exchange under the symbol MWA.
Conflicts
of Interest
As described in Use of Proceeds, the net proceeds of
this offering will be used to pay down borrowings under our
credit agreement. Because more than 5% of the proceeds of this
offering, not including underwriting compensation, may be
received by one of the underwriters in this offering or by one
of their affiliates, this offering is being conducted in
compliance with NASD Rule 2720, as administered by FINRA.
Pursuant to that rule, the appointment of a qualified
independent underwriter is not necessary in connection with this
offering, as the offering is of a class of equity securities for
which a bona fide public market, as defined by FINRA
rules, exists.
Price
Stabilization and Short Positions
Until the distribution of the shares is completed, SEC rules may
limit underwriters and selling group members from bidding for
and purchasing our Series A common stock. However, the
representatives may engage in transactions that stabilize the
price of the Series A common stock, such as bids or
purchases to peg, fix or maintain that price.
In connection with the offering, the underwriters may purchase
and sell our Series A common stock in the open market.
These transactions may include short sales, purchases on the
open market to cover positions created by short sales and
stabilizing transactions. Short sales involve the sale by the
underwriters of a greater number of shares than they are
required to purchase in the offering. Covered short
sales are sales made in an amount not greater than the
underwriters option to purchase additional shares in the
offering. The underwriters may close out any covered short
position by either exercising their option to purchase
additional shares or purchasing shares in the open market. In
determining the source of shares to close out the covered short
position, the underwriters will consider, among other things,
the price of shares available for purchase in the open market as
compared to the price at which they may purchase shares through
the option to purchase additional shares. Naked
short sales are sales in excess of the option to purchase
additional shares. The underwriters must close out any naked
short position by purchasing shares in the open market. A naked
short position is more likely to be created if the underwriters
are concerned that there may be downward pressure on the price
of our Series A common stock in the open market after
pricing that could adversely affect investors who purchase in
the offering. Stabilizing transactions consist of various bids
for or purchases of shares of Series A common stock made by
the underwriters in the open market prior to the completion of
the offering.
Similar to other purchase transactions, the underwriters
purchases to cover the syndicate short sales may have the effect
of raising or maintaining the market price of our Series A
common stock or preventing or
S-16
retarding a decline in the market price of our Series A
common stock. As a result, the price of our Series A common
stock may be higher than the price that might otherwise exist in
the open market.
Neither we nor any of the underwriters make any representation
or prediction as to the direction or magnitude of any effect
that the transactions described above may have on the price of
our Series A common stock. In addition, neither we nor any
of the underwriters make any representation that the
representatives will engage in these transactions or that these
transactions, once commenced, will not be discontinued without
notice.
Electronic
Offer, Sale and Distribution of Shares
In connection with the offering, certain of the underwriters or
securities dealers may distribute prospectuses by electronic
means, such as
e-mail. In
addition, certain of the underwriters may facilitate Internet
distribution for this offering to certain of its Internet
subscription customers. Certain of the underwriters may allocate
a limited number of shares for sale to its online brokerage
customers. An electronic prospectus is available on the Internet
web site maintained by such underwriters. Other than the
prospectus in electronic format, the information on such
underwriters web site is not part of this prospectus.
Other
Relationships
An affiliate of Merrill Lynch, Pierce, Fenner & Smith
Incorporated serves as administrative agent, swing line lender
and a letter of credit issuer and lender under our credit
agreement, and an affiliate of SunTrust Robinson Humphrey, Inc.
serves as
co-documentation
agent and lender under our credit agreement. Some of the
underwriters and their affiliates have engaged in, and may in
the future engage in, investment banking and other commercial
dealings in the ordinary course of business with us or our
affiliates. They have received, or may in the future receive,
customary fees and commissions for these transactions.
Notice to
Prospective Investors in the EEA
In relation to each Member State of the European Economic Area
(the EEA) which has implemented the Prospectus
Directive (each, a Relevant Member State) an offer
to the public of any shares which are the subject of the
offering contemplated by this prospectus may not be made in that
Relevant Member State, except that an offer to the public in
that Relevant Member State of any shares may be made at any time
under the following exemptions under the Prospectus Directive,
if they have been implemented in that Relevant Member State:
(a) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in
securities;
(b) to any legal entity which has two or more of
(1) an average of at least 250 employees during the
last financial year; (2) a total balance sheet of more than
43,000,000 and (3) an annual net turnover of more
than 50,000,000, as shown in its last annual or
consolidated accounts;
(c) by the underwriters to fewer than 100 natural or legal
persons (other than qualified investors as defined
in the Prospectus Directive) subject to obtaining the prior
consent of the representatives for any such offer; or
(d) in any other circumstances falling within
Article 3(2) of the Prospectus Directive;
provided that no such offer of shares shall result in a
requirement for the publication by us or any representative of a
prospectus pursuant to Article 3 of the Prospectus
Directive.
Any person making or intending to make any offer of shares
within the EEA should only do so in circumstances in which no
obligation arises for us or any of the underwriters to produce a
prospectus for such offer. Neither we nor the underwriters have
authorized, nor do they authorize, the making of any offer of
shares through any financial intermediary, other than offers
made by the underwriters which constitute the final offering of
shares contemplated in this prospectus.
S-17
For the purposes of this provision, and your representation
below, the expression an offer to the public in
relation to any shares in any Relevant Member State means the
communication in any form and by any means of sufficient
information on the terms of the offer and any shares to be
offered so as to enable an investor to decide to purchase any
shares, as the same may be varied in that Relevant Member State
by any measure implementing the Prospectus Directive in that
Relevant Member State and the expression Prospectus
Directive means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
Each person in a Relevant Member State who receives any
communication in respect of, or who acquires any shares under,
the offer of shares contemplated by this prospectus will be
deemed to have represented, warranted and agreed to and with us
and each underwriter that:
(a) it is a qualified investor within the
meaning of the law in that Relevant Member State implementing
Article 2(1)(e) of the Prospectus Directive; and
(b) in the case of any shares acquired by it as a financial
intermediary, as that term is used in Article 3(2) of the
Prospectus Directive, (i) the shares acquired by it in the
offering have not been acquired on behalf of, nor have they been
acquired with a view to their offer or resale to, persons in any
Relevant Member State other than qualified investors
(as defined in the Prospectus Directive), or in circumstances in
which the prior consent of the representatives has been given to
the offer or resale; or (ii) where shares have been
acquired by it on behalf of persons in any Relevant Member State
other than qualified investors, the offer of those shares to it
is not treated under the Prospectus Directive as having been
made to such persons.
Notice to
Prospective Investors in Switzerland
This document, as well as any other material relating to the
shares which are the subject of the offering contemplated by
this prospectus, do not constitute an issue prospectus pursuant
to Article 652a of the Swiss Code of Obligations. The
shares will not be listed on the SWX Swiss Exchange and,
therefore, the documents relating to the shares, including, but
not limited to, this document, do not claim to comply with the
disclosure standards of the listing rules of SWX Swiss Exchange
and corresponding prospectus schemes annexed to the listing
rules of the SWX Swiss Exchange. The shares are being offered in
Switzerland by way of a private placement, i.e. to a
small number of selected investors only, without any public
offer and only to investors who do not purchase the shares with
the intention to distribute them to the public. The investors
will be individually approached by us from time to time. This
document, as well as any other material relating to the shares,
is personal and confidential and do not constitute an offer to
any other person. This document may only be used by those
investors to whom it has been handed out in connection with the
offering described herein and may neither directly nor
indirectly be distributed or made available to other persons
without our express consent. It may not be used in connection
with any other offer and shall in particular not be copied
and/or
distributed to the public in (or from) Switzerland.
Notice to
Prospective Investors in the Dubai International Financial
Centre
This document relates to an exempt offer in accordance with the
Offered Securities Rules of the Dubai Financial Services
Authority. This document is intended for distribution only to
persons of a type specified in those rules. It must not be
delivered to, or relied on by, any other person. The Dubai
Financial Services Authority has no responsibility for reviewing
or verifying any documents in connection with exempt offers. The
Dubai Financial Services Authority has not approved this
document nor taken steps to verify the information set out in
it, and has no responsibility for it. The shares which are the
subject of the offering contemplated by this prospectus may be
illiquid
and/or
subject to restrictions on their resale. Prospective purchasers
of the shares offered should conduct their own due diligence on
the shares. If you do not understand the contents of this
document you should consult an authorized financial adviser.
S-18
Notice to
Prospective Investors in Hong Kong
The shares may not be offered or sold by means of any document
other than (i) in circumstances which do not constitute an
offer to the public within the meaning of the Companies
Ordinance (Cap.32, Laws of Hong Kong), or (ii) to
professional investors within the meaning of the
Securities and Futures Ordinance (Cap.571, Laws of Hong Kong)
and any rules made thereunder, or (iii) in other
circumstances which do not result in the document being a
prospectus within the meaning of the Companies
Ordinance (Cap.32, Laws of Hong Kong), and no advertisement,
invitation or document relating to the shares may be issued or
may be in the possession of any person for the purpose of issue
(in each case whether in Hong Kong or elsewhere), which is
directed at, or the contents of which are likely to be accessed
or read by, the public in Hong Kong (except if permitted to do
so under the laws of Hong Kong) other than with respect to
shares which are or are intended to be disposed of only to
persons outside Hong Kong or only to professional
investors within the meaning of the Securities and Futures
Ordinance (Cap. 571, Laws of Hong Kong) and any rules made
thereunder.
Notice to
Prospective Investors in Singapore
This prospectus has not been registered as a prospectus with the
Monetary Authority of Singapore. Accordingly, this prospectus
and any other document or material in connection with the offer
or sale, or invitation for subscription or purchase, of the
shares may not be circulated or distributed, nor may the shares
be offered or sold, or be made the subject of an invitation for
subscription or purchase, whether directly or indirectly, to
persons in Singapore other than (i) to an institutional
investor under Section 274 of the Securities and Futures
Act, Chapter 289 of Singapore (the SFA),
(ii) to a relevant person, or any person pursuant to
Section 275(1A), and in accordance with the conditions,
specified in Section 275 of the SFA or (iii) otherwise
pursuant to, and in accordance with the conditions of, any other
applicable provision of the SFA.
Where the shares are subscribed or purchased under
Section 275 by a relevant person which is: (a) a
corporation (which is not an accredited investor) the sole
business of which is to hold investments and the entire share
capital of which is owned by one or more individuals, each of
whom is an accredited investor; or (b) a trust (where the
trustee is not an accredited investor) whose sole purpose is to
hold investments and each beneficiary is an accredited investor,
shares, debentures and units of shares and debentures of that
corporation or the beneficiaries rights and interest in
that trust shall not be transferable for six months after that
corporation or that trust has acquired the shares under
Section 275 except: (1) to an institutional investor
under Section 274 of the SFA or to a relevant person, or
any person pursuant to Section 275(1A), and in accordance
with the conditions, specified in Section 275 of the SFA;
(2) where no consideration is given for the transfer; or
(3) by operation of law.
Notice to
Prospective Investors in Japan
The securities have not been and will not be registered under
the Financial Instruments and Exchange Law of Japan (the
Financial Instruments and Exchange Law) and each underwriter has
agreed that it will not offer or sell any securities, directly
or indirectly, in Japan or to, or for the benefit of, any
resident of Japan (which term as used herein means any person
resident in Japan, including any corporation or other entity
organized under the laws of Japan), or to others for re-offering
or resale, directly or indirectly, in Japan or to a resident of
Japan, except pursuant to an exemption from the registration
requirements of, and otherwise in compliance with, the Financial
Instruments and Exchange Law and any other applicable laws,
regulations and ministerial guidelines of Japan.
S-19
CERTAIN
UNITED STATES FEDERAL INCOME AND ESTATE TAX
CONSEQUENCES TO
NON-U.S.
HOLDERS
The following is a summary of certain United States federal
income and estate tax consequences of the purchase, ownership
and disposition of our Series A common stock as of the date
hereof. Except where noted, this summary deals only with
Series A common stock that is held as a capital asset by a
non-U.S. holder.
A
non-U.S. holder
means a person (other than a partnership) that is not for United
States federal income tax purposes any of the following:
|
|
|
|
|
an individual citizen or resident of the United States;
|
|
|
|
a corporation (or any other entity treated as a corporation for
United States federal income tax purposes) created or organized
in or under the laws of the United States, any state thereof or
the District of Columbia;
|
|
|
|
an estate the income of which is subject to United States
federal income taxation regardless of its source; or
|
|
|
|
a trust if it (1) is subject to the primary supervision of
a court within the United States and one or more United States
persons have the authority to control all substantial decisions
of the trust or (2) has a valid election in effect under
applicable United States Treasury regulations to be treated as a
United States person.
|
This summary is based upon provisions of the Internal Revenue
Code of 1986, as amended (the Code), and
regulations, rulings and judicial decisions as of the date
hereof. Those authorities may be changed, perhaps retroactively,
so as to result in United States federal income and estate tax
consequences different from those summarized below. This summary
does not address all aspects of United States federal income and
estate taxes and does not deal with foreign, state, local or
other tax considerations that may be relevant to
non-U.S. holders
in light of their personal circumstances. In addition, it does
not represent a detailed description of the United States
federal income tax consequences applicable to you if you are
subject to special treatment under the United States federal
income tax laws (including, but not limited to, if you are a
United States expatriate, controlled foreign
corporation, passive foreign investment
company or a partnership or other pass-through entity for
United States federal income tax purposes). We cannot assure you
that a change in law will not alter significantly the tax
considerations that we describe in this summary.
If a partnership holds our Series A common stock, the tax
treatment of a partner will generally depend upon the status of
the partner and the activities of the partnership. If you are a
partner of a partnership holding our Series A common stock,
you should consult your own tax advisors.
If you are considering the purchase of our Series A
common stock, you should consult your own tax advisors
concerning the particular United States federal income and
estate tax consequences to you of the ownership of the
Series A common stock, as well as potential effects of
changes in applicable tax law and the consequences to you
arising under the laws of any other taxing jurisdiction.
Dividends
Distributions paid to a
non-U.S. holder
on our Series A common stock will be considered dividends
for United States federal income tax purposes to the extent paid
out of our current or accumulated earnings and profits, as
determined under United States federal income tax principles. If
a distribution exceeds our current and accumulated earnings and
profits, the excess will be treated as a tax-free return of the
non-U.S. holders
investment in our Series A common stock to the extent of
the
non-U.S. holders
adjusted tax basis in our Series A common stock. Any
remaining excess will be treated as capital gain.
Dividends paid to a
non-U.S. holder
of our Series A common stock generally will be subject to
withholding of United States federal income tax at a 30% rate or
such lower rate as may be specified by an applicable income tax
treaty. However, dividends that are effectively connected with
the conduct of a trade or
S-20
business by the
non-U.S. holder
within the United States (and, if required by an applicable
income tax treaty, are attributable to a United States permanent
establishment) are not subject to the withholding tax, provided
certain certification and disclosure requirements are satisfied.
Instead, such dividends are subject to United States
federal income tax on a net income basis in the same manner as
if the
non-U.S. holder
were a United States person as defined under the Code. Any
such effectively connected dividends received by a foreign
corporation may be subject to an additional branch profits
tax at a 30% rate or such lower rate as may be specified
by an applicable income tax treaty.
A
non-U.S. holder
of our Series A common stock who wishes to claim the
benefit of an applicable treaty rate and avoid backup
withholding, as discussed below, for dividends will be required
(a) to complete Internal Revenue Service
Form W-8BEN
(or other applicable form) and certify under penalty of perjury
that such holder is not a United States person as defined under
the Code and is eligible for treaty benefits or (b) if our
Series A common stock is held through certain foreign
intermediaries, to satisfy the relevant certification
requirements of applicable United States Treasury regulations.
Special certification and other requirements apply to certain
non-U.S. holders
that are pass-through entities rather than corporations or
individuals.
A
non-U.S. holder
of our Series A common stock eligible for a reduced rate of
United States withholding tax pursuant to an income tax treaty
may obtain a refund of any excess amounts withheld by timely
filing an appropriate claim for refund with the Internal Revenue
Service.
Gain on
Disposition of Series A Common Stock
Any gain realized on the disposition of our Series A common
stock generally will not be subject to United States federal
income tax unless:
|
|
|
|
|
the gain is effectively connected with a trade or business of
the
non-U.S. holder
in the United States (and, if required by an applicable income
tax treaty, is attributable to a United States permanent
establishment of the
non-U.S. holder);
|
|
|
|
the
non-U.S. holder
is an individual who is present in the United States for
183 days or more in the taxable year of that disposition,
and certain other conditions are met; or
|
|
|
|
we are or have been a United States real property holding
corporation for United States federal income tax purposes
at any time during the shorter of the five-year period ending on
the date of disposition and the
non-U.S. holders
holding period for our Series A common stock and certain
other conditions are satisfied.
|
An individual
non-U.S. holder
described in the first bullet point immediately above will be
subject to tax on the net gain derived from the sale under
regular graduated United States federal income tax rates. An
individual
non-U.S. holder
described in the second bullet point immediately above will be
subject to a flat 30% tax on the gain derived from the sale,
which may be offset by United States source capital losses, even
though the individual is not considered a resident of the United
States. If a
non-U.S. holder
that is a foreign corporation falls under the first bullet point
immediately above, it will be subject to tax on its net gain in
the same manner as if it were a United States person as defined
under the Code and, in addition, may be subject to the branch
profits tax equal to 30% of its effectively connected earnings
and profits or at such lower rate as may be specified by an
applicable income tax treaty.
We believe we are not and do not anticipate becoming a
United States real property holding corporation for
United States federal income tax purposes.
Federal
Estate Tax
Series A common stock held by an individual
non-U.S. holder
at the time of death will be included in such holders
gross estate for United States federal estate tax purposes,
unless an applicable estate tax treaty provides otherwise.
S-21
Information
Reporting and Backup Withholding
We must report annually to the Internal Revenue Service and to
each
non-U.S. holder
the amount of dividends paid to such holder and the tax withheld
with respect to such dividends, regardless of whether
withholding was required. Copies of the information returns
reporting such dividends and withholding may also be made
available to the tax authorities in the country in which the
non-U.S. holder
resides under the provisions of an applicable income tax treaty.
A
non-U.S. holder
will be subject to backup withholding for dividends paid to such
holder unless such holder certifies under penalty of perjury
that it is a
non-U.S. holder
(and the payor does not have actual knowledge or reason to know
that such holder is a United States person as defined under the
Code), or such holder otherwise establishes an exemption.
Information reporting and, depending on the circumstances,
backup withholding will apply to the proceeds of a sale of our
Series A common stock within the United States or conducted
through certain United States-related financial intermediaries,
unless the beneficial owner certifies under penalty of perjury
that it is a
non-U.S. holder
(and the payor does not have actual knowledge or reason to know
that the beneficial owner is a United States person as defined
under the Code), or such owner otherwise establishes an
exemption.
Backup withholding is not an additional tax. Any amounts
withheld under the backup withholding rules may be allowed as a
refund or a credit against a
non-U.S. holders
United States federal income tax liability provided the required
information is timely furnished to the Internal Revenue Service.
Prospective
non-U.S. holders
should consult their own tax advisors concerning the application
of information reporting and backup withholding rules.
S-22
LEGAL
MATTERS
The validity of the issuance of the Series A common stock
offered by this prospectus supplement will be passed upon for us
by Simpson Thacher & Bartlett LLP. The underwriters
are being represented by Shearman & Sterling LLP.
EXPERTS
The consolidated financial statements of Mueller Water Products,
Inc. and subsidiaries at September 30, 2008, and for the
year then ended incorporated herein by reference and the
effectiveness of Mueller Water Products, Inc.s internal
control over financial reporting at September 30, 2008 have
been audited by Ernst & Young LLP, an independent
registered public accounting firm, as set forth in their reports
thereon and incorporated herein by reference. Such consolidated
financial statements have been incorporated herein by reference
in reliance upon such reports given on the authority of such
firm as experts in accounting and auditing.
The financial statements as of September 30, 2007 and for
each of the two years in the period ended September 30,
2007 incorporated herein by reference to the Annual Report on
Form 10-K
for the year ended September 30, 2008 have been so
incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
S-23
PROSPECTUS
$300,000,000
Mueller
Water Products, Inc.
Series A
Common Stock
Preferred Stock
Debt Securities
Warrants
Depositary Shares
Units
From time to time, we may offer up to $300,000,000 of any
combination of the securities described in this prospectus,
either individually or in units. We may also offer common stock
or preferred stock upon conversion of debt securities, common
stock upon conversion of preferred stock, or common stock,
preferred stock or debt securities upon the exercise of
warrants. Such securities may be offered and sold by us in one
or more offerings with a total aggregate principal amount or
initial purchase price not to exceed $300,000,000.
This prospectus provides a general description of these
securities. We will provide specific information and the terms
of the securities being offered in supplements to this
prospectus. The supplements may also add, update or change
information in this prospectus. Please read this prospectus and
any prospectus supplements together with any documents
incorporated by reference carefully before investing. This
prospectus may not be used to sell securities unless accompanied
by a prospectus supplement.
Our Series A common stock is traded on the New York Stock
Exchange under the symbol MWA. On June 5, 2009,
the last reported sale price for our Series A common stock
on the New York Stock Exchange was $4.00 per share.
Our principal executive offices are located at 1200 Abernathy
Road, NE, Suite 1200, Atlanta, Georgia 30328, and our
telephone number is
(770) 206-4200.
We may offer these securities directly to investors, through
underwriters, dealers or agents, on a continuous or delayed
basis. See Plan of Distribution. Each prospectus
supplement will provide the terms of the plan of distribution
relating to each series of securities.
Investing in our securities involves risks that you should
consider and that are described in our most recent Annual Report
on
Form 10-K,
and any subsequent Quarterly Reports on
Form 10-Q,
which are incorporated by reference into this prospectus or any
applicable prospectus supplement.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is June 16, 2009.
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission (the
SEC) using a shelf registration, or
continuous offering, process. Under this shelf registration
process, we may, from time to time, offer shares of our common
stock, preferred stock, either separately or represented by
depositary shares, or warrants to purchase any of such
securities, either individually or in units, or various series
of debt securities, in one or more offerings, up to a total
initial issuance amount of $300,000,000.
This prospectus provides you with a general description of the
securities we may offer. The specific terms of any securities to
be offered will be described in a prospectus supplement. Any
prospectus supplement and any related free writing prospectus
that we may authorize to be provided to you may also add, update
or change information contained in this prospectus. Any
statement that we make in this prospectus will be modified or
superseded by any inconsistent statement made by us in a
prospectus supplement. The registration statement we filed with
the SEC includes exhibits that provide more detail on
descriptions of the matters discussed in this prospectus. You
should read this prospectus and the related exhibits filed with
the SEC and any prospectus supplement, together with additional
information described under the heading Where You Can Find
More Information.
Unless the context otherwise requires, references in this
prospectus and the accompanying prospectus supplement to
we, us and our refer to
Mueller Water Products, Inc. and its subsidiaries.
TABLE OF
CONTENTS
|
|
|
|
|
|
|
Page
|
|
|
|
|
3
|
|
|
|
|
3
|
|
|
|
|
4
|
|
|
|
|
4
|
|
|
|
|
4
|
|
|
|
|
5
|
|
|
|
|
5
|
|
|
|
|
5
|
|
|
|
|
6
|
|
|
|
|
8
|
|
|
|
|
16
|
|
|
|
|
17
|
|
|
|
|
19
|
|
|
|
|
20
|
|
|
|
|
22
|
|
|
|
|
22
|
|
You should rely only on the information incorporated by
reference or provided in this prospectus, any prospectus
supplement, the registration statement and any other free
writing prospectus authorized by us to be provided to you. We
have not authorized anyone else to provide you with different
information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not
making an offer to sell these securities in any state where the
offer or sale is not permitted. You should assume that the
information in this prospectus and any prospectus supplement, or
incorporated by reference, is accurate only as of the dates of
those documents. Our business, financial condition, results of
operations and prospects may have changed since those dates.
2
MUELLER
WATER PRODUCTS
We are a leading North American manufacturer and marketer of a
broad range of water infrastructure, flow control and piping
component system products for use in water distribution networks
and treatment facilities. We also act as a distributor,
especially in Canada, for our products and products that are
manufactured by other companies. Our broad product portfolio
includes engineered valves, fire hydrants, pipe fittings, water
meters and ductile iron pipe, which are used by municipalities,
as well as the non-residential and residential construction,
heating, ventilation and air conditioning, fire protection and
oil & gas industries. We manage our businesses and
report operations through three business segments, based largely
on the products they sell and the customers they serve: Mueller
Co., U.S. Pipe and Anvil.
Mueller
Co.
Sales of Mueller Co. products are driven principally by spending
on water and wastewater infrastructure upgrade, repair and
replacement and new water and wastewater infrastructure, which
is typically associated with new residential construction.
U.S.
Pipe
U.S. Pipe products are sold primarily to waterworks
distributors, contractors, municipalities, utilities and other
governmental agencies. A substantial percentage of ductile iron
pipe orders result from contracts that are bid by contractors or
directly issued by municipalities or utilities.
Anvil
Anvil sells products it manufactures and products it sources
from outside parties to a wide variety of end users primarily in
the non-residential construction industry through a network of
distributors. These distributors are serviced primarily through
distribution centers located in the United States and Canada.
Anvil also sells directly to contractors in Canada.
THE
SECURITIES WE MAY OFFER
We may offer shares of our common stock, preferred stock, either
separately or represented by depositary shares, or warrants to
purchase any of such securities, either individually or in
units, or various series of debt securities, with a total value
of up to $300,000,000 from time to time under this prospectus at
prices and on terms to be determined by market conditions at the
time of any offering. This prospectus provides you with a
general description of the securities we may offer. Each time we
offer a type or series of securities under this prospectus, we
will provide a prospectus supplement that will describe the
specific amounts, prices and other important terms of the
securities, including, to the extent applicable:
|
|
|
|
|
Designation or classification;
|
|
|
|
Aggregate principal amount or aggregate offering price;
|
|
|
|
Maturity, if applicable;
|
|
|
|
Original issue discount, if any;
|
|
|
|
Rates and times of payment of interest or dividends, if any;
|
|
|
|
Redemption, conversion, exercise, exchange or sinking fund
terms, if any;
|
|
|
|
Ranking;
|
|
|
|
Restrictive covenants, if any;
|
|
|
|
Voting or other rights, if any;
|
|
|
|
Conversion prices, if any; and
|
|
|
|
Important U.S. federal income tax considerations.
|
3
The prospectus supplement and any related free writing
prospectus that we may authorize to be provided to you may also
add, update or change information contained in this prospectus
or in documents we have incorporated by reference. However, no
prospectus supplement or free writing prospectus will offer a
security that is not registered and described in this prospectus
at the time of the effectiveness of the registration statement
of which this prospectus is a part.
RISK
FACTORS
An investment in our securities involves a high degree of risk.
Prior to making a decision about investing in our securities,
you should carefully consider the specific risk factors
discussed in the sections entitled Risk Factors
contained in any applicable prospectus supplement and our
filings with the SEC and incorporated by reference in this
prospectus, together with all of the other information contained
in this prospectus, or any applicable prospectus supplement. If
any of the risks or uncertainties described in our SEC filings
or any prospectus supplement or any additional risks and
uncertainties actually occur, our business, financial condition
and results of operations could be materially and adversely
affected. In that case, the trading price of our securities
could decline and you might lose all or part of the value of
your investment.
INCORPORATION
BY REFERENCE
The following documents filed with the SEC by Mueller Water
Products, Inc. (the Company) pursuant to the
Securities Act of 1933, as amended (the Securities
Act) and the Securities Exchange Act of 1934, as amended
(the Exchange Act), are hereby incorporated by
reference in this registration statement:
|
|
|
|
|
Our Annual Report on
Form 10-K
for the fiscal year ended September 30, 2008 and Quarterly
Reports on
Form 10-Q
for the fiscal quarters ended December 31, 2008 and
March 31, 2009;
|
|
|
|
Our Current Reports on
Form 8-K
filed on October 6, 2008, October 31, 2008,
January 29, 2009, February 6, 2009 and May 13,
2009; and
|
|
|
|
The description of our Series A common stock contained in
our Registration Statement on
Form S-1/A
filed on May 19, 2006.
|
All documents filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this registration statement and prior to the filing
of a post-effective amendment to the registration statement of
which this prospectus forms a part indicating that all
securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be
incorporated by reference into this prospectus and to be a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this prospectus to the
extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
Copies of the above documents (other than exhibits to such
documents) may be obtained upon request without charge upon
writing to Mueller Water Products, Inc., Attn: Corporate
Secretary, 1200 Abernathy Road, NE, Suite 1200, Atlanta,
Georgia 30328.
WHERE YOU
CAN FIND MORE INFORMATION
We are a reporting company and file annual, quarterly and
current reports, proxy statements and other information with the
Securities and Exchange Commission, or SEC. In addition, we have
filed with the SEC a Registration Statement on
Form S-3,
of which this prospectus is a part, under the Securities Act
with respect to the securities offered hereby. This prospectus
does not contain all of the information set forth in the
registration statement or the exhibits which are a part of the
registration statement. You may read and copy the registration
statement and any document we file with the SEC at the public
reference room maintained by the
4
SEC at 100 F Street, N.E., Washington, D.C.
20549. You may obtain information on the operation of the public
reference room by calling the SEC at
1-800-SEC-0330.
Our filings with the SEC are also available to the public
through the SECs Internet site at
http://www.sec.gov
and through the New York Stock Exchange, 20 Broad Street,
New York, New York 10005, on which our common stock is listed.
SPECIAL
NOTE ABOUT FORWARD-LOOKING STATEMENTS
Some of the statements in this prospectus, the documents
incorporated by reference into this prospectus and in any
prospectus supplement may be deemed forward-looking
statements within the meaning of Section 21E of the
Exchange Act, and Section 27A of the Securities Act. All
statements, other than statements of historical fact, that
address activities, events or developments that we intend,
expect, project, believe or anticipate will or may occur in the
future are forward-looking statements. Such statements are based
upon certain assumptions and assessments made by us in light of
our experience and our perception of historical trends, current
conditions and expected future developments. Actual results and
the timing of events may differ significantly from those
projected in such forward-looking statements due to a number of
factors, including those set forth in the sections entitled
Risk Factors in our most recent Annual Report on
Form 10-K
and any subsequent Quarterly Report on
Form 10-Q,
which are incorporated by reference into this prospectus.
USE OF
PROCEEDS
Unless otherwise specified in the applicable prospectus
supplement, we intend to use the net proceeds from the sale of
the securities in the prospectus and any prospectus supplement
for general corporate purposes, which could include:
|
|
|
|
|
Repayment of indebtedness;
|
|
|
|
Working capital;
|
|
|
|
Capital expenditures; and
|
|
|
|
Acquisitions.
|
We will describe the specific use of proceeds from the sale of
the securities in the prospectus supplement.
RATIO OF
EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratio of our
earnings to our fixed charges for the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months
|
|
|
|
|
|
|
|
|
|
|
|
|
Ended
|
|
Year Ended
|
|
|
March 31,
|
|
September 30,
|
|
December 31,
|
|
|
2009
|
|
2008(a)
|
|
2007(a)
|
|
2006(a)
|
|
2005
|
|
2004
|
|
Ratio of earnings to fixed charges(b)
|
|
|
N/A
|
(c)
|
|
|
1.9
|
|
|
|
1.9
|
|
|
|
1.1
|
|
|
|
N/A
|
(c)
|
|
|
N/A
|
(c)
|
|
|
|
(a) |
|
Data for the years ended September 30, 2008, 2007 and 2006
include results from a predecessor company, which we acquired on
October 3, 2005. |
|
(b) |
|
For these ratios, earnings represents income (loss)
before income taxes plus fixed charges. Fixed
charges is the sum of interest expense, capitalized
interest, amortization of debt discount or premium, amortization
of capitalized expenses related to debt and an estimate of the
interest component of rent expense. |
|
(c) |
|
Due to losses during the six months ended March 31, 2009
and the years ended September 30, 2005 and
December 31, 2004, the ratio of earnings to fixed charges
for those periods was less than 1.0. The deficiency of earnings
to total fixed charges was $1,037.7 million,
$0.5 million and $18.4 million for each such period,
respectively. |
5
DESCRIPTION
OF CAPITAL STOCK
This section describes the general terms and provisions of the
shares of our common stock, par value $0.01 per share and
preferred stock, par value $0.01 per share. The summary is not
complete and is qualified in its entirety by reference to the
description of our common stock incorporated by reference in
this prospectus. We have also filed our certificate of
incorporation and our bylaws as exhibits to the registration
statement, of which this prospectus is a part. You should read
our certificate of incorporation and our bylaws for additional
information before you buy any of our capital stock. See
Where You Can Find More Information.
Common
Stock
As of May 31, 2009, our authorized common stock was
600,000,000 shares, of which approximately
116,500,000 shares of Series A common stock were
outstanding. The holders of Series A common stock are
entitled to one vote per share on all matters submitted to a
vote of our stockholders. Subject to preferences that may be
applicable to any preferred stock outstanding at the time, the
holders of outstanding shares of Series A common stock are
entitled to receive ratably any dividends out of assets legally
available as our board of directors may from time to time
determine. Upon liquidation, dissolution or winding up of our
Company, holders of our Series A common stock are entitled
to share ratably in all assets remaining after payment of
liabilities and the liquidation preference of any then
outstanding shares of preferred stock. Holders of Series A
common stock have no preemptive or conversion rights or other
subscription rights. There are no redemption or sinking fund
provisions applicable to the Series A common stock. All
outstanding shares of Series A common stock are fully paid
and nonassessable. Any shares of common stock will be issued in
book entry form only. Our Series A common stock is listed
on The New York Stock Exchange under the symbol MWA.
Preferred
Stock
As of May 31, 2009, our authorized preferred stock was
60,000,000 shares, of which none were issued and
outstanding.
We may issue preferred stock with such designations, powers,
preferences and other rights and qualifications, limitations or
restrictions as our board of directors may authorize, without
further action by our stockholders, including but not limited to:
|
|
|
|
|
The distinctive designation of each series and the number of
shares that will constitute such series;
|
|
|
|
The voting rights, if any, of shares of the series and the terms
and conditions of such voting rights;
|
|
|
|
The dividend rate on the shares of the series, the dates on
which dividends are payable, any restriction, limitation or
condition upon payment of dividends, whether dividends will be
cumulative and the dates from and after which dividends shall
accumulate;
|
|
|
|
The prices at which, and the terms and conditions on which, the
shares of the series may be redeemed, if such shares are
redeemable;
|
|
|
|
The terms and conditions of a sinking or purchase fund for the
purchase or redemption of shares of the series, if such a fund
is provided;
|
|
|
|
Any preferential amount payable upon shares of the series in the
event of the liquidation, dissolution or winding up of, or upon
the distribution of any of our assets; and
|
|
|
|
The prices or rates of conversion or exchange at which, and the
terms and conditions on which, the shares of such series may be
converted or exchanged into other securities, if such shares are
convertible or exchangeable.
|
The particular terms of any series of preferred stock will be
described in a prospectus supplement. Any material
U.S. federal income tax consequences and other special
considerations with respect to any preferred stock offered under
this prospectus will also be described in the applicable
prospectus supplement. Any shares of preferred stock will be
issued in book entry form only.
6
Anti-Takeover
Provisions of Delaware Law and Charter Provisions
We are subject to Section 203 of the Delaware General
Corporation Law, which prohibits a publicly-held Delaware
corporation from engaging in a business combination,
except under certain circumstances, with an interested
stockholder for a period of three years following the date
such person became an interested stockholder unless:
|
|
|
|
|
Before such person became an interested stockholder, the board
of directors of the corporation approved either the business
combination or the transaction that resulted in the interested
stockholder becoming an interested stockholder;
|
|
|
|
Upon the consummation of the transaction that resulted in the
interested stockholder becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting stock of
the corporation outstanding at the time the transaction
commenced, excluding shares held by directors who also are
officers of the corporation and shares held by employee stock
plans; or
|
|
|
|
At or following the time such person became an interested
stockholder, the business combination is approved by the board
of directors of the corporation and authorized at a meeting of
stockholders by the affirmative vote of the holders of
662/3%
of the outstanding voting stock of the corporation which is not
owned by the interested stockholder.
|
The term interested stockholder generally is defined
as a person who, together with affiliates and associates, owns,
or, within the three years prior to the determination of
interested stockholder status, owned, 15% or more of a
corporations outstanding voting stock. The term
business combination includes mergers, asset or
stock sales and other similar transactions resulting in a
financial benefit to an interested stockholder. Section 203
makes it more difficult for an interested
stockholder to effect various business combinations with a
corporation for a three-year period. The existence of this
provision would be expected to have an anti-takeover effect with
respect to transactions not approved in advance by our board of
directors, including discouraging attempts that might result in
a premium over the market price for the shares of common stock
held by stockholders.
The ability of the board of directors to issue shares of
preferred stock and to set the voting rights, preferences and
other terms thereof, without further stockholder action, may be
deemed to have anti-takeover effect and may discourage takeover
attempts not first approved by the board of directors, including
takeovers which stockholders may deem to be in their best
interests. If takeover attempts are discouraged, temporary
fluctuations in the market price of our common stock, which may
result from actual or rumored takeover attempts, may be
inhibited. These provisions, together with the ability of our
board of directors to issue preferred stock without further
stockholder action, including adoption of a stockholders rights
plan using preferred stock rights, could also delay or frustrate
the removal of incumbent directors or the assumption of control
by stockholders, even if the removal or assumption would be
beneficial to our stockholders. These provisions could also
discourage or inhibit a merger, tender offer or proxy contests,
even if favorable to the interests of stockholders, and could
depress the market price of our common stock. In addition, our
bylaws may be amended by action of the board of directors.
Certain provisions under consideration for amendment are notice
requirements and other procedures with respect to special
meetings called by stockholders, stockholder action by written
consent and director nominations by stockholders.
Limitation
of Liability and Indemnification
Delaware law permits, and our certificate of incorporation
contains, provisions eliminating a directors personal
liability for monetary damages resulting from a breach of
fiduciary duty, except in certain circumstances involving
wrongful acts, such as (i) for any breach of the
directors duty of loyalty to the company or its
stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation
of law, (iii) liability under Section 174 of the
Delaware General Corporation Law for improper dividends,
repurchases or redemptions of stock or (iv) for any
transaction from which the director derives an improper personal
benefit. These provisions do not limit or eliminate our rights
or any stockholders rights to seek non-monetary relief,
such as an injunction or rescission, in the event of a
7
breach of directors fiduciary duty. These provisions will
not alter a directors liability under federal securities
law. We have put in place agreements with our directors
containing provisions indemnifying our directors to the fullest
extent permitted by Delaware General Corporation Law. We believe
that these provisions will assist us in attracting and retaining
qualified individuals to serve as our directors.
Transfer
Agent
The transfer agent and registrar for our common stock is BNY
Mellon Shareowner Services.
DESCRIPTION
OF DEBT SECURITIES
The following is a summary of the general terms of the debt
securities. We will file a prospectus supplement that may
contain additional terms when we issue debt securities. The
terms presented here, together with the terms in a related
prospectus supplement, will be a description of the material
terms of the debt securities. You should also read the indenture
under which the debt securities are to be issued. We have filed
a form of indenture governing debt securities with the SEC as an
exhibit to the registration statement of which this prospectus
is a part. All capitalized terms have the meanings specified in
the indenture.
We may issue, from time to time, debt securities, in one or more
series, that will consist of either our senior debt, our senior
subordinated debt or our subordinated debt. We refer to the
subordinated debt securities and the senior subordinated debt
securities together as the subordinated securities. The debt
securities we offer will be issued under an indenture between us
and The Bank of New York Mellon Trust Company, N.A., as trustee.
Debt securities, whether senior, senior subordinated or
subordinated, may be issued as convertible debt securities or
exchangeable debt securities. The following is a summary of the
material provisions of the indenture filed as an exhibit to the
registration statement of which this prospectus is a part. For
each series of debt securities, the applicable prospectus
supplement for the series may change and supplement the summary
below.
General
Terms of the Indenture
The indenture does not limit the amount of debt securities that
we may issue. It provides that we may issue debt securities up
to the principal amount that we may authorize and may be in any
currency or currency unit that we may designate. Except for the
limitations on consolidation, merger and sale of all or
substantially all of our assets contained in the indenture, the
terms of the indenture do not contain any covenants or other
provisions designed to give holders of any debt securities
protection against changes in our operations, financial
condition or transactions involving us.
We may issue the debt securities issued under the indenture as
discount securities, which means they may be sold at
a discount below their stated principal amount. These debt
securities, as well as other debt securities that are not issued
at a discount, may be issued with original issue
discount, or OID, for U.S. federal income tax
purposes because of interest payment and other characteristics.
Material U.S. federal income tax considerations applicable
to debt securities issued with OID will be described in more
detail in any applicable prospectus supplement.
The applicable prospectus supplement for a series of debt
securities that we issue will describe, among other things, the
following terms of the offered debt securities:
|
|
|
|
|
The title of the series of debt securities;
|
|
|
|
The price or prices (expressed as a percentage of the principal
amount) at which we will sell the debt securities;
|
|
|
|
Any limit on the aggregate principal amount of the series of
debt securities;
|
|
|
|
Whether the debt securities rank as senior debt, senior
subordinated debt or subordinated debt or any combination
thereof, and the terms of any subordination;
|
8
|
|
|
|
|
Whether securities issued by us will be entitled to the benefits
of any guarantees and the form and terms of any guarantee;
|
|
|
|
The terms and conditions, if any, upon which the series of debt
securities shall be converted into or exchanged for other
securities;
|
|
|
|
Whether securities issued by us will be secured or unsecured,
and if secured, what the collateral will consist of;
|
|
|
|
The maturity date(s);
|
|
|
|
The rate or rates (which may be fixed or variable) per annum or
the method used to determine the rate or rates (including any
currency exchange rate, commodity, commodity index, stock
exchange index or financial index) at which the debt securities
will bear interest, the date or dates from which interest will
accrue or the method for determining dates from which interest
will accrue, the date or dates on which interest will commence
and be payable and any regular record date for the interest
payable on any interest payment date;
|
|
|
|
The manner in which the amounts of payment of principal of or
interest, if any, on the series of debt securities will be
determined (if such amounts may be determined by reference to an
index based on a currency or currencies or by reference to a
currency exchange rate, commodity, commodity index, stock
exchange index or financial index);
|
|
|
|
The place or places where principal of, premium, if any, and
interest, if any, on the debt securities will be payable and the
method of such payment, if by wire transfer, mail or other means;
|
|
|
|
Provisions related to redemption or early repayment of the debt
securities of our option;
|
|
|
|
Our obligation, if any, to redeem or purchase any series of debt
securities pursuant to any sinking fund or analogous provisions
or at the option of a holder thereof and the period or periods
within which, the price or prices at which and the terms and
conditions upon which such debt securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
|
|
|
|
The authorized denominations;
|
|
|
|
The form of the debt securities and whether the debt securities
will be issued in bearer or fully registered form (and if in
fully registered form, whether the debt securities will be
issuable, in whole or in part, as global debt securities);
|
|
|
|
Any depositaries, interest rate calculation agents, exchange
rate calculation agents or other agents with respect to the debt
securities;
|
|
|
|
Any changes in the trustee for such debt securities;
|
|
|
|
The portion of principal amount of the debt securities payable
upon declaration of acceleration of the maturity date, if other
than the principal amount;
|
|
|
|
Any changes in or additions to the covenants applicable to the
particular debt securities being issued;
|
|
|
|
Additions to or changes in the Events of Default with respect to
the securities and any change in the right of the trustee or the
holders to declare the principal, premium, if any, and interest,
if any, with respect to such securities to be due and payable;
|
|
|
|
The currency of denomination of the debt securities;
|
|
|
|
The designation of the currency, currencies or currency units in
which the purchase price for, the principal of and any premium
and any interest on, such securities will be payable;
|
|
|
|
If payments of principal of, premium, if any, or interest, if
any, on the debt securities will be made in one or more
currencies or currency units other than that or those in which
the debt securities are denominated, the manner in which the
exchange rate with respect to these payments will be determined;
|
9
|
|
|
|
|
The securities exchange(s) on which the debt securities will be
listed, if any;
|
|
|
|
Whether any underwriter(s) will act as market maker(s) for the
debt securities;
|
|
|
|
The extent to which a secondary market for the debt securities
is expected to develop;
|
|
|
|
Additions to or changes in the provisions relating to covenant
defeasance and legal defeasance;
|
|
|
|
Additions to or changes in the provisions relating to
satisfaction and discharge of the indenture;
|
|
|
|
Additions to or changes in the provisions relating to the
modification of the indenture both with and without the consent
of holders of debt securities issued under the
indenture; and
|
|
|
|
Any other terms of the debt securities, which may modify,
supplement or delete any provision of the indenture as it
applies to that series.
|
The applicable prospectus supplement will present material
U.S. federal income tax considerations for holders of any
debt securities, if any, and the securities exchange or
quotation system on which any debt securities are to be listed
or quoted, if any.
We expect most debt securities to be issued in fully registered
form without coupons and in denominations of $2,000 and any
integral multiples in excess thereof.
Guarantees
Certain of our material domestic wholly owned subsidiaries named
as registrants in the registration statement of which this
prospectus is a part, or any combination of them, may, jointly
and severally, guarantee any or all of the series of debt
securities. Guarantees may be full or limited, senior or
subordinated, secured or unsecured, or any combination thereof.
In all cases, however, the obligations of each guarantor under
its guarantee will be limited as necessary to prevent the
guarantee from being rendered voidable under fraudulent
conveyance, fraudulent transfer or similar laws affecting the
rights of creditors generally. The guarantees will not place a
limitation on the amount of additional indebtedness that may be
incurred by the guarantors.
Conversion
or Exchange Rights
Debt securities may be convertible into or exchangeable for
other securities, including, for example, shares of our equity
securities. The terms and conditions of conversion or exchange
will be stated in the applicable prospectus supplement. The
terms will include, among others, the following:
|
|
|
|
|
The conversion or exchange price;
|
|
|
|
The conversion or exchange period;
|
|
|
|
Provisions regarding the ability of us or the holder to convert
or exchange the debt securities;
|
|
|
|
Events requiring adjustment to the conversion or exchange
price; and
|
|
|
|
Provisions affecting conversion or exchange in the event of our
redemption of the debt securities.
|
Consolidation,
Merger or Sale
We cannot consolidate or merge with or into, or transfer all or
substantially all of our assets to, any person, and we cannot
permit any other person to consolidate with or merge into us,
unless (1) we will be the continuing corporation or
(2) the successor person to which our assets are
transferred is a person organized under the laws of the United
States, any state of the United States or the District of
Columbia and it expressly assumes our obligations under the debt
securities and the indenture. In addition, we cannot complete
such a transaction unless immediately after completing the
transaction, no Event of Default (as defined below) under the
indenture, and no event which, after notice or lapse of time or
both, would become an Event of Default under the indenture,
shall have occurred and be continuing. When the person to whom
our assets are transferred has assumed our obligations under the
debt securities and the indenture, we shall be discharged from
all our obligations under the debt securities and the indenture
except in limited circumstances.
10
This covenant would not apply to any recapitalization
transaction, a change of control of us or a highly leveraged
transaction, unless the transaction or change of control were
structured to include a merger or consolidation or transfer or
lease of all or substantially all of our assets.
Events of
Default
The term Event of Default, when used in the
indenture with respect to any series of debt securities, unless
otherwise indicated, means any of the following:
|
|
|
|
|
Failure to pay interest for 30 days after the date payment
is due and payable;
|
|
|
|
Failure to pay principal or premium, if any, on any debt
security when due, either at maturity, upon any redemption, by
declaration or otherwise;
|
|
|
|
Failure to make sinking fund payments, if any, when due in
respect of that series;
|
|
|
|
Failure to perform other covenants (other than a covenant that
has been included in the indenture solely for the benefit of a
series of debt securities other than that series) for
60 days after notice that performance was required;
|
|
|
|
Certain events in bankruptcy, insolvency or reorganization
relating to us; or
|
|
|
|
Any other Event of Default provided in the applicable
officers certificate, resolution of our board of directors
or the supplemental indenture under which we issue a series of
debt securities.
|
An Event of Default for a particular series of debt securities
does not necessarily constitute an Event of Default for any
other series of debt securities issued under the indenture.
If an Event of Default with respect to any series of debt
securities occurs and is continuing, then either the trustee for
such series or the holders of a majority in aggregate principal
amount of the outstanding debt securities of such series, by
notice in writing, may declare the principal amount (or, if the
debt securities are discount securities, that portion of the
principal amount as may be specified in the terms of that
series) of and interest on all of the debt securities of such
series to be due and payable immediately. We refer you to the
prospectus supplement relating to any series of debt securities
that are discount securities for the particular provisions
relating to acceleration of a portion of the principal amount of
such discount securities upon the occurrence of an Event of
Default.
The holders of not less than a majority in aggregate principal
amount of the debt securities of each affected series may, after
satisfying certain conditions, rescind and annul any of the
above-described declarations and consequences involving such
series.
If an Event of Default relating to certain events in our
bankruptcy, insolvency or reorganization occurs and is
continuing, then the principal amount (or, if the debt
securities are discount securities, that portion of the
principal amount as may be specified in the terms of that
series) of all of the debt securities outstanding, and any
accrued interest, will automatically become due and payable
immediately, without any declaration or other act by the trustee
or any holder.
The indenture imposes limitations on suits brought by holders of
debt securities against us. Except for actions for payment of
overdue principal or interest, no holder of debt securities of
any series may institute any action against us under the
indenture unless:
|
|
|
|
|
The holder has previously given to the trustee written notice of
default and continuance of such default;
|
|
|
|
The holders of not less than a majority in principal amount of
the outstanding debt securities of that series have requested
that the trustee institute the action;
|
|
|
|
The requesting holders have offered the trustee reasonable
indemnity for expenses and liabilities that may be incurred by
bringing the action;
|
|
|
|
The trustee has not instituted the action within 60 days of
the request; and
|
11
|
|
|
|
|
The trustee has not received inconsistent direction by the
holders of a majority in principal amount of that series of debt
securities.
|
We will be required to file annually with the trustee a
certificate, signed by one of our officers, stating whether or
not the officer knows of any default by us in the performance,
observance or fulfillment of any condition or covenant of the
indenture. In addition, we will be required to notify the
trustee in writing upon the occurrence of any such default.
Transfer
and Exchange
Unless otherwise stated in the applicable prospectus supplement,
each debt security will be represented by either one or more
global securities registered in the name of The Depository
Trust Company, as depositary, or a nominee (we will refer
to any debt security represented by a global debt security as a
book-entry debt security), or a certificate issued
in definitive registered form (we will refer to any debt
security represented by a certificated security as a
certificated debt security) as set forth in the
applicable prospectus supplement. Except as set forth under the
subheading Global Debt Securities and
Book-Entry System below, book-entry debt securities will
not be issuable in certificated form.
Certificated Debt Securities. You may transfer
or exchange certificated debt securities at any office we
maintain for this purpose in accordance with the terms of the
indenture. No service charge will be made for any transfer or
exchange of certificated debt securities, but we may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with a transfer or
exchange.
You may effect the transfer of certificated debt securities and
the right to receive the principal of, premium, if any, and
interest, if any, on certificated debt securities only by
surrendering the certificate representing those certificated
debt securities and either reissuance by us or the trustee of
the certificate to the new holder or the issuance by us or the
trustee of a new certificate to the new holder.
Global Debt Securities and Book-Entry
System. Each global debt security representing
book-entry debt securities will be deposited with, or on behalf
of, the depositary, and registered in the name of the depositary
or a nominee of the depositary.
We anticipate that the depositary will follow the following
procedures with respect to book-entry debt securities.
Ownership of beneficial interests in book-entry debt securities
will be limited to persons that have accounts with the
depositary for the related global debt security, which we refer
to as participants, or persons that may hold interests through
participants. Upon the issuance of a global debt security, the
depositary will credit, on its book-entry registration and
transfer system, the participants accounts with the
respective principal amounts of the book-entry debt securities
represented by such global debt security beneficially owned by
such participants. The accounts to be credited will be
designated by any dealers, underwriters or agents participating
in the distribution of the book-entry debt securities. Ownership
of book-entry debt securities will be shown on, and the transfer
of such ownership interests will be effected only through,
records maintained by the depositary for the related global debt
security (with respect to interests of participants) and on the
records of participants (with respect to interests of persons
holding through participants). The laws of some states may
require that certain purchasers of securities take physical
delivery of such securities in definitive form. These laws may
impair the ability to own, transfer or pledge beneficial
interests in book-entry debt securities.
So long as the depositary for a global debt security, or its
nominee, is the registered owner of that global debt security,
the depositary or its nominee, as the case may be, will be
considered the sole owner or holder of the book-entry debt
securities represented by such global debt security for all
purposes under the indenture. Except as described below,
beneficial owners of book-entry debt securities will not be
entitled to have securities registered in their names, will not
receive or be entitled to receive physical delivery of a
certificate in definitive form representing securities and will
not be considered the owners or holders of those securities
under the indenture. Accordingly, each person beneficially
owning book-entry debt securities must rely on the procedures of
the depositary for the related global debt security and, if such
person is not a participant, on the
12
procedures of the participant through which such person owns its
interest, to exercise any rights of a holder under the indenture.
We understand, however, that under existing industry practice,
the depositary will authorize the persons on whose behalf it
holds a global debt security to exercise certain rights of
holders of debt securities, and the indenture provides that we,
the trustee and our respective agents will treat as the holder
of a debt security the persons specified in a written statement
of the depositary with respect to that global debt security for
purposes of obtaining any consents or directions required to be
given by holders of the debt securities pursuant to the
indenture.
We will make payments of principal of, premium, if any, and
interest, if any, on book-entry debt securities to the
depositary or its nominee, as the case may be, as the registered
holder of the related global debt security. We, the trustee and
any other agent of ours or agent of the trustee will not have
any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests in a global debt security or for maintaining,
supervising or reviewing any records relating to beneficial
ownership interests.
We expect that the depositary, upon receipt of any payment of
principal of, premium, if any, or interest, if any, on a global
debt security, will immediately credit participants
accounts with payments in amounts proportionate to the
respective amounts of book-entry debt securities held by each
participant as shown on the records of such depositary. We also
expect that payments by participants to owners of beneficial
interests in book-entry debt securities held through those
participants will be governed by standing customer instructions
and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered
in street name, and will be the responsibility of
those participants.
We will issue certificated debt securities in exchange for each
global debt security if the depositary is at any time unwilling
or unable to continue as depositary or ceases to be a clearing
agency registered under the Exchange Act, and a successor
depositary registered as a clearing agency under the Exchange
Act is not appointed by us within 90 days. In addition, we
may at any time and in our sole discretion determine not to have
the book-entry debt securities of any series represented by one
or more global debt securities and, in that event, will issue
certificated debt securities in exchange for the global debt
securities of that series. Global debt securities will also be
exchangeable by the holders for certificated debt securities if
an Event of Default with respect to the book-entry debt
securities represented by those global debt securities has
occurred and is continuing. Any certificated debt securities
issued in exchange for a global debt security will be registered
in such name or names as the depositary shall instruct the
trustee. We expect that such instructions will be based upon
directions received by the depositary from participants with
respect to ownership of book-entry debt securities relating to
such global debt security.
We have obtained the foregoing information concerning the
depositary and the depositarys book-entry system from
sources we believe to be reliable, but we take no responsibility
for the accuracy of this information.
Discharge,
Defeasance and Covenant Defeasance
Legal Defeasance. The indenture provides that,
unless otherwise provided by the terms of the applicable series
of debt securities, we may be discharged from any and all
obligations in respect of the debt securities of any series
(except for certain obligations to register the transfer or
exchange of debt securities of such series, to replace stolen,
lost or mutilated debt securities of such series, and to
maintain paying agencies and certain provisions relating to the
treatment of funds held by paying agents). We will be so
discharged upon the deposit with the trustee, in trust, of money
and/or
U.S. government obligations or, in the case of debt
securities denominated in a single currency other than
U.S. dollars, foreign government obligations, that, through
the payment of interest and principal in accordance with their
terms, will provide money in an amount sufficient in the opinion
of a nationally recognized firm of independent public
accountants to pay and discharge each installment of principal,
premium, if any, and interest, if any, on and any mandatory
sinking fund payments in respect of the debt securities of that
series on the stated maturity of those payments in accordance
with the terms of the indenture and those debt securities.
13
This discharge may occur only if, among other things, we have
delivered to the trustee an opinion of counsel stating that we
have received from, or there has been published by, the United
States Internal Revenue Service a ruling or, since the date of
execution of the indenture, there has been a change in the
applicable United States federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm
that, the holders of the debt securities of that series will not
recognize income, gain or loss for United States federal
income tax purposes as a result of the deposit, defeasance and
discharge and will be subject to United States federal income
tax on the same amounts and in the same manner and at the same
times as would have been the case if the deposit, defeasance and
discharge had not occurred.
Defeasance of Certain Covenants. The indenture
provides that, unless otherwise provided by the terms of the
applicable series of debt securities, upon compliance with
certain conditions:
|
|
|
|
|
We may omit to comply with the covenant described under the
heading Consolidation, Merger or Sale and certain
other covenants set forth in the indenture, as well as any
additional covenants which may be set forth in the applicable
prospectus supplement; and
|
|
|
|
Any omission to comply with those covenants will not constitute
a default or an Event of Default with respect to the debt
securities of that series, or covenant defeasance.
|
The conditions include:
|
|
|
|
|
Depositing with the trustee money
and/or
U.S. government obligations or, in the case of debt
securities denominated in a single currency other than
U.S. dollars, foreign government obligations, that, through
the payment of interest and principal in accordance with their
terms, will provide money in an amount sufficient in the opinion
of a nationally recognized firm of independent public
accountants to pay and discharge each installment of principal
of, premium, if any, and interest, if any, on and any mandatory
sinking fund payments in respect of the debt securities of that
series on the stated maturity of those payments in accordance
with the terms of the indenture and those debt
securities; and
|
|
|
|
Delivering to the trustee an opinion of counsel to the effect
that the holders of the debt securities of that series will not
recognize income, gain or loss for United States federal income
tax purposes as a result of the deposit and related covenant
defeasance and will be subject to United States federal income
tax on the same amounts and in the same manner and at the same
times as would have been the case if the deposit and related
covenant defeasance had not occurred.
|
Covenant Defeasance and Events of Default. In
the event we exercise our option to effect covenant defeasance
with respect to any series of debt securities and the debt
securities of that series are declared due and payable because
of the occurrence of any Event of Default, the amount of money
and/or
U.S. government obligations or foreign government
obligations on deposit with the trustee will be sufficient to
pay amounts due on the debt securities of that series at the
time of their stated maturity but may not be sufficient to pay
amounts due on the debt securities of that series at the time of
the acceleration resulting from the Event of Default. However,
we shall remain liable for those payments.
Modification
of the Indenture
The indenture provides that we and the trustee may enter into
supplemental indentures without the consent of the holders of
debt securities to:
|
|
|
|
|
Secure any debt securities and provide the terms and conditions
for the release or substitution of the security;
|
|
|
|
Evidence the assumption by a successor person of our obligations;
|
|
|
|
Add covenants for the protection of the holders of debt
securities;
|
|
|
|
Add any additional Events of Default;
|
|
|
|
Cure any ambiguity or correct any inconsistency or defect in the
indenture;
|
14
|
|
|
|
|
Add to, change or eliminate any of the provisions of the
indenture in a manner that will become effective only when there
is no outstanding debt security which is entitled to the benefit
of the provision as to which the modification would apply;
|
|
|
|
Establish the forms or terms of debt securities of any series;
|
|
|
|
Eliminate any conflict between the terms of the indenture and
the Trust Indenture Act of 1939;
|
|
|
|
Evidence and provide for the acceptance of appointment by a
successor trustee and add to or change any of the provisions of
the indenture as is necessary for the administration of the
trusts by more than one trustee; and
|
|
|
|
Make any other provisions with respect to matters or questions
arising under the indenture that will not be inconsistent with
any provision of the indenture as long as the new provisions do
not materially adversely affect the interests of the holders of
any outstanding debt securities of any series created prior to
the modification.
|
The indenture also provides that we and the trustee may, with
the consent of the holders of not less than a majority in
aggregate principal amount of debt securities of each series
then outstanding and affected add any provisions to, or change
in any manner, eliminate or modify in any way the provisions of,
the indenture or modify in any manner the rights of the holders
of the debt securities. We and the trustee may not, however,
without the consent of the holder of each outstanding debt
security affected thereby:
|
|
|
|
|
Reduce the amount of debt securities whose holders must consent
to an amendment, supplement or waiver;
|
|
|
|
Reduce the rate of or extend the time for payment of interest
(including default interest) on any debt security;
|
|
|
|
Reduce the principal of or premium, if any, on or change the
fixed maturity of any debt security or reduce the amount of, or
postpone the date fixed for, the payment of any sinking fund or
analogous obligation with respect to any series of debt
securities;
|
|
|
|
Reduce the principal amount of discount securities payable upon
acceleration of maturity;
|
|
|
|
Waive a default in the payment of the principal of, premium, if
any, or interest, if any, on any debt security (except a
rescission of acceleration of the debt securities of any series
by the holders of at least a majority in aggregate principal
amount of the then outstanding debt securities of that series
and a waiver of the payment default that resulted from such
acceleration);
|
|
|
|
Make the principal of or premium, if any, or interest, if any,
on any debt security payable in currency other than that stated
in the debt security;
|
|
|
|
Make any change to certain provisions of the indenture relating
to, among other things, the right of holders of debt securities
to receive payment of the principal of, premium, if any, and
interest, if any, on those debt securities and to institute suit
for the enforcement of any such payment and to waivers or
amendments; or
|
|
|
|
Waive a redemption payment with respect to any debt security or
change any of the provisions with respect to the redemption of
any debt securities.
|
Except for certain specified provisions, the holders of at least
a majority in principal amount of the outstanding debt
securities of any series may on behalf of the holders of all
debt securities of that series waive our compliance with
provisions of the indenture. The holders of a majority in
principal amount of the outstanding debt securities of any
series may on behalf of the holders of all the debt securities
of such series waive any past default under the indenture with
respect to that series and its consequences, except a default in
the payment of the principal of, premium, if any, or any
interest, if any, on any debt security of that series or in
respect of a covenant or provision which cannot be modified or
amended without the consent of the holder of each outstanding
debt security of the series affected; provided, however, that
the holders of a majority in
15
principal amount of the outstanding debt securities of any
series may rescind an acceleration and its consequences,
including any related payment default that resulted from the
acceleration.
No
Individual Liability of Incorporators, Stockholders, Officers or
Directors
The indenture provides that no incorporator and no past, present
or future stockholder, officer or director of ours or any
successor corporation in their capacity as such shall have any
individual liability for any of our obligations, covenants or
agreements under the debt securities or the indenture.
Governing
Law
The indenture and the debt securities will be governed by, and
construed in accordance with, the laws of the State of New York.
DESCRIPTION
OF WARRANTS
We may issue warrants for the purchase of common stock,
preferred stock
and/or debt
securities in one or more series. We may issue warrants
independently or together with common stock, preferred stock
and/or debt
securities, and the warrants may be attached to or separate from
these securities. While the terms summarized below will apply
generally to any warrants that we may offer, we will describe
the particular terms of any series of warrants in more detail in
the applicable prospectus supplement. The terms of any warrants
offered under a prospectus supplement may differ from the terms
described below.
We will file as exhibits to the registration statement of which
this prospectus is a part, or will incorporate by reference from
reports that we file with the SEC, the form of warrant
agreement, including a form of warrant certificate, that
describes the terms of the particular series of warrants we are
offering before the issuance of the related series of warrants.
The following summaries of material provisions of the warrants
and the warrant agreements are subject to, and qualified in
their entirety by reference to, all the provisions of the
warrant agreement and warrant certificate applicable to the
particular series of warrants that we may offer under this
prospectus. We urge you to read the applicable prospectus
supplements related to the particular series of warrants that we
may offer under this prospectus and the complete warrant
agreements and warrant certificates that contain the terms of
the warrants.
We will describe in the applicable prospectus supplement the
terms of the series of warrants being offered, including:
|
|
|
|
|
The offering price and aggregate number of warrants offered;
|
|
|
|
The currency for which the warrants may be purchased;
|
|
|
|
If applicable, the designation and terms of the securities with
which the warrants are issued and the number of warrants issued
with each such security or each principal amount of such
security;
|
|
|
|
If applicable, the date on and after which the warrants and the
related securities will be separately transferable;
|
|
|
|
In the case of warrants to purchase debt securities, the
principal amount of debt securities purchasable upon exercise of
one warrant and the price at, and currency in which, this
principal amount of debt securities may be purchased upon such
exercise;
|
|
|
|
In the case of warrants to purchase common stock or preferred
stock, the number of shares of common stock or preferred stock,
as the case may be, purchasable upon the exercise of one warrant
and the price at which these shares may be purchased upon such
exercise;
|
|
|
|
The effect of any merger, consolidation, sale or other
disposition of our business on the warrant agreements and the
warrants;
|
|
|
|
The terms of our rights to redeem or sell the warrants;
|
16
|
|
|
|
|
Any provisions for changes to or adjustments in the exercise
price or number of securities issuable upon exercise of the
warrants;
|
|
|
|
The dates on which the right to exercise the warrants will
commence and expire;
|
|
|
|
The manner in which the warrant agreements and warrants may be
modified;
|
|
|
|
A discussion of any material U.S. federal income tax
consequences of holding or exercising the warrants;
|
|
|
|
The terms of the securities issuable upon exercise of the
warrants; and
|
|
|
|
Any other specific terms, preferences, rights or limitations of
or restrictions on the warrants.
|
Each warrant will entitle the holder to purchase the securities
that we specify in the applicable prospectus supplement at the
exercise price that we describe in the applicable prospectus
supplement. Holders of the warrants may exercise the warrants at
any time up to the specified time on the expiration date that we
set forth in the applicable prospectus supplement. After such
time on the expiration date, unexercised warrants will become
void.
Holders of the warrants may exercise the warrants by delivering
the warrant certificate representing the warrants to be
exercised together with specified information, and paying the
required amount to the warrant agent in immediately available
funds, as provided in the applicable prospectus supplement. We
will set forth on the reverse side of the warrant certificate
and in the applicable prospectus supplement the information that
the holder of the warrant will be required to deliver to the
warrant agent.
Upon receipt of the required payment and the warrant certificate
properly completed and duly executed at the corporate trust
office of the warrant agent or any other office indicated in the
applicable prospectus supplement, we will issue and deliver the
securities purchasable upon such exercise. If fewer than all of
the warrants represented by the warrant certificate are
exercised, then we will issue a new warrant certificate for the
remaining amount of warrants. If we so indicate in the
applicable prospectus supplement, holders of the warrants may
surrender securities as all or part of the exercise price for
warrants.
Unless we provide otherwise in the applicable prospectus
supplement, the warrants and warrant agreements will be governed
by and construed in accordance with the laws of the State of New
York.
DESCRIPTION
OF DEPOSITARY SHARES
The following is a general description of the depositary shares
that we may offer from time to time. The particular terms of the
depositary shares being offered and the extent to which such
general provisions may apply will be set forth in the applicable
prospectus supplement.
General
We may issue receipts for depositary shares, each of which will
represent a fractional interest of a share of a particular
series of a class of our preferred stock. We will deposit the
shares of preferred stock of any series represented by
depositary shares with a depositary under a deposit agreement.
We will identify the depositary in a prospectus supplement.
Subject to the terms of the deposit agreement, the holders of
depositary shares will be entitled, in proportion to the
fraction of the share of preferred stock represented by such
holders depositary share, to all of the rights and
preferences to which such holder would be entitled if the holder
owned the share of preferred stock represented by the depositary
share directly (including dividend, voting, redemption,
subscription and liquidation rights).
The depositary shares will be represented by depositary receipts
issued pursuant to the applicable deposit agreement. Immediately
following the issuance and delivery of our preferred stock to
the depositary, we will cause the depositary to issue, on our
behalf, the depositary receipts. Upon request, we will provide
the holder with copies of the applicable form of deposit
agreement. The depositary shares will be issued in book entry
form only.
17
Dividends
and Other Provisions
If the holder is a record holder (as defined below)
of depositary receipts and we pay a cash dividend or other cash
distribution with respect to the preferred stock represented by
the depositary share, the depositary will distribute all cash
dividends or other cash distributions it receives in respect of
the preferred stock represented by the depositary receipts in
proportion to the numbers of depositary shares owned by such
holder on the record date for that dividend or distribution.
If we make a distribution in a form other than cash, the
depositary will distribute the property it receives to the
record holders of depositary receipts in an equitable manner,
unless the depositary determines that it is not feasible to do
so. If the depositary decides it cannot feasibly distribute the
property, it may sell the property and distribute the net
proceeds from the sale to the record holders. The amount the
depositary distributes in any of the foregoing cases may be
reduced by any amounts that we or the depositary is required to
withhold on account of taxes.
A record holder is a person who holds depositary
receipts on the record date for any dividend, distribution or
other action. The record date for depositary shares will be the
same as the record date for the preferred stock represented by
those depositary receipts.
Withdrawal
of Preferred Stock
If a holder surrenders depositary receipts, the depositary will
be required to deliver certificates to such holder evidencing
the number of shares of preferred stock represented by those
receipts (but only in whole shares). If a holder delivers
depositary receipts representing a number of depositary shares
that is greater than the number of whole shares to be withdrawn,
the depositary will deliver to such holder at the same time a
new depositary receipt evidencing the fractional shares.
Redemption
of Depositary Shares
If we redeem a series of shares of preferred stock represented
by depositary receipts, the depositary will redeem depositary
shares from the proceeds it receives after redemption of the
preferred stock. The redemption price per depositary share will
be equal to the applicable fraction of the redemption price per
share payable with respect to that series of shares of preferred
stock. If fewer than all the depositary shares are to be
redeemed, the depositary will select shares to be redeemed by
lot, pro rata or by any other equitable method it may determine.
After the date fixed for redemption, the depositary shares
called for redemption will no longer be outstanding. All rights
of the holders of those depositary shares will cease, except the
right to receive the redemption price that the holders of the
depositary shares were entitled to receive upon redemption.
Payments will be made when holders surrender their depositary
receipts to the depositary.
Voting
the Preferred Stock
When the depositary receives notice of any meeting at which the
holders of preferred stock are entitled to vote, the depositary
will mail information contained in the notice to each record
holder of the depositary shares relating to the preferred stock.
Each record holder of the depositary shares on the record date
(which will be the same date as the record date for the
preferred stock) will be entitled to instruct the depositary as
to how such holder would like his or her votes to be exercised.
The depositary will endeavor, insofar as practicable, to vote
the number of shares of preferred stock represented by the
depositary shares in accordance with each holders
instructions. We will agree to take all reasonable action that
the depositary may deem necessary to enable the depositary to do
this. If a holder does not send specific instructions, the
depositary will not vote the preferred stock represented by such
depositary shares.
Liquidation
Preference
In the event of our liquidation, dissolution or winding up,
whether voluntary or involuntary, each holder will be entitled,
as a record holder of depositary shares, to the fraction of the
liquidation preference accorded each applicable share of
preferred stock, as has been set forth in a prospectus
supplement.
18
Amendment
and Termination of the Deposit Agreement
We and the depositary may amend the form of depositary receipt
and any provision of the deposit agreement at any time. However,
any amendment which materially and adversely alters the rights
of the holders of depositary shares will not be effective unless
the holders of at least a majority of the depositary shares then
outstanding approve the amendment. The deposit agreement will
only terminate if:
|
|
|
|
|
We redeem all outstanding depositary shares; or
|
|
|
|
We make a final distribution in respect of the related preferred
stock to which the depositary shares and agreement relate,
including in connection with any liquidation, dissolution or
winding up and the distribution has been distributed to the
holders of depositary shares.
|
Resignation
and Removal of Depositary
The depositary may resign at any time by delivering notice to us
of its election to do so. Additionally, we may remove the
depositary at any time. Any resignation or removal will take
effect when we appoint a successor depositary and the successor
accepts the appointment. We must appoint a successor depositary
within 60 days after delivery of the notice of resignation
or removal. A successor depositary must be a bank or trust
company having its principal office in the U.S. and having
a combined capital and surplus of at least $50 million.
Charges
of Depositary
We will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary
arrangements. We will pay charges of the depositary in
connection with the initial deposit of the preferred stock and
issuance of depositary receipts, all withdrawals of preferred
stock by owners of the depositary shares and any redemption of
the preferred stock. Each holder will pay other transfer and
other taxes, governmental charges and other charges expressly
provided for in the deposit agreement.
Miscellaneous
The depositary will forward to each holder all reports and
communications from us that we are required, or otherwise
determine, to furnish to the holders of the preferred stock.
Neither we nor the depositary will be liable under the deposit
agreement to the holders other than for the depositarys
gross negligence, willful misconduct or bad faith. Neither we
nor the depositary will be obligated to prosecute or defend any
legal proceeding in respect of any depositary shares or
preferred stock unless satisfactory indemnity is furnished. We
and the depositary may rely upon written advice of counsel or
accountants, or upon information provided by persons presenting
preferred stock for deposit, holders of depositary receipts or
other persons believed to be competent and on documents believed
to be genuine.
DESCRIPTION
OF UNITS
We may issue, in one more series, units consisting of common
stock, preferred stock, debt securities
and/or
warrants for the purchase of common stock, preferred stock
and/or debt
securities in any combination in such amounts and in such
numerous distinct series as we determine. While the terms we
have summarized below will apply generally to any units that we
may offer under this prospectus, we will describe the particular
terms of any series of units in more detail in the applicable
prospectus supplement. The terms of any units offered under a
prospectus supplement may differ from the terms described below.
We will file as exhibits to the registration statement of which
this prospectus is a part, or will incorporate by reference from
reports that we file with the SEC, the form of unit agreement
that describes the terms of the series of units we are offering,
and any supplemental agreements, before the issuance of the
related series of units. The following summaries of material
terms and provisions of the units are subject to, and qualified
in their entirety by reference to, all the provisions of the
unit agreement and any supplemental agreements applicable to a
particular series of units. We urge you to read the applicable
prospectus supplements related to the particular
19
series of units that we may offer under this prospectus, as well
as any related free writing prospectuses and the complete unit
agreement and any supplemental agreements that contain the terms
of the units.
Each unit will be issued so that the holder of the unit is also
the holder of each security included in the unit. Thus, the
holder of a unit will have the rights and obligations of a
holder of each included security. The unit agreement under which
a unit is issued may provide that the securities included in the
unit may not be held or transferred separately, at any time or
at any time before a specified date.
We will describe in the applicable prospectus supplement the
terms of the series of units being offered, including:
|
|
|
|
|
The designation and terms of the units and of the securities
comprising the units, including whether and under what
circumstances those securities may be held or transferred
separately;
|
|
|
|
Any provisions of the governing unit agreement that differ from
those described below; and
|
|
|
|
Any provisions for the issuance, payment, settlement, transfer
or exchange of the units or of the securities comprising the
units.
|
The provisions described in this section, as well as those
described under Description of Capital Stock,
Description of Debt Securities and Description
of Warrants will apply to each unit and to any common
stock, preferred stock, debt security or warrant included in
each unit, respectively.
Each unit agent will act solely as our agent under the
applicable unit agreement and will not assume any obligation or
relationship of agency or trust with any holder of any unit. A
single bank or trust company may act as unit agent for more than
one series of units. A unit agent will have no duty or
responsibility in case of any default by us under the applicable
unit agreement or unit, including any duty or responsibility to
initiate any proceedings at law or otherwise, or to make any
demand upon us. Any holder of a unit may, without the consent of
the related unit agent or the holder of any other unit, enforce
by appropriate legal action its rights as holder under any
security included in the unit.
We, and any unit agent and any of their agents, may treat the
registered holder of any unit certificate as an absolute owner
of the units evidenced by that certificate for any purpose and
as the person entitled to exercise the rights attaching to the
units so requested, despite any notice to the contrary.
PLAN OF
DISTRIBUTION
We may sell the securities offered by this prospectus in any one
or more of the following ways from time to time:
|
|
|
|
|
Directly to investors, including through a specific bidding,
auction or other process;
|
|
|
|
To investors through agents;
|
|
|
|
Directly to agents;
|
|
|
|
To or through brokers or dealers;
|
|
|
|
To the public through underwriting syndicates led by one or more
managing underwriters;
|
|
|
|
To one or more underwriters acting alone for resale to investors
or to the public; or
|
|
|
|
Through a combination of any such methods of sale.
|
We may also in sell the securities offered by this prospectus in
at the market offerings within the meaning of
Rule 415(a)(4) of the Securities Act, to or through a
market maker or into an existing trading market, on an exchange
or otherwise.
The accompanying prospectus supplement will set forth the terms
of the offering and the method of distribution and will identify
any firms acting as underwriters, dealers or agents in
connection with the offering, including:
|
|
|
|
|
The name or names of any underwriters, dealers or agents;
|
|
|
|
The purchase price of the securities and the proceeds to us from
the sale;
|
20
|
|
|
|
|
Any over-allotment options under which the underwriters may
purchase additional securities from us;
|
|
|
|
Any underwriting discounts and other items constituting
compensation to underwriters, dealers or agents;
|
|
|
|
Any public offering price;
|
|
|
|
Any discounts or concessions allowed or reallowed or paid to
dealers; or
|
|
|
|
Any securities exchange or market on which the securities
offered in the prospectus supplement may be listed.
|
Only those underwriters identified in such prospectus supplement
are deemed to be underwriters in connection with the securities
offered in the prospectus supplement. Any underwritten offering
may be on a best efforts or a firm commitment basis.
The distribution of the securities may be effected from time to
time in one or more transactions at a fixed price or prices,
which may be changed, at varying prices determined at the time
of sale, or at prices determined as the applicable prospectus
supplement specifies. The securities may be sold through a
rights offering, forward contracts or similar arrangements. In
any distribution of subscription rights to stockholders, if all
of the underlying securities are not subscribed for, we may then
sell the unsubscribed securities directly to third parties or
may engage the services of one or more underwriters, dealers or
agents, including standby underwriters, to sell the unsubscribed
securities to third parties.
In connection with the sale of the securities, underwriters,
dealers or agents may be deemed to have received compensation
from us in the form of underwriting discounts or commissions and
also may receive commissions from securities purchasers for whom
they may act as agent. Underwriters may sell the securities to
or through dealers, and the dealers may receive compensation in
the form of discounts, concessions or commissions from the
underwriters or commissions from the purchasers for whom they
may act as agent.
We will provide in the applicable prospectus supplement
information regarding any underwriting discounts or other
compensation that we pay to underwriters or agents in connection
with the securities offering, and any discounts, concessions or
commissions which underwriters allow to dealers. Underwriters,
dealers and agents participating in the securities distribution
may be deemed to be underwriters, and any discounts and
commissions they receive and any profit they realize on the
resale of the securities may be deemed to be underwriting
discounts and commissions under the Securities Act. Underwriters
and their controlling persons, dealers and agents may be
entitled, under agreements entered into with us, to
indemnification against and contribution toward specific civil
liabilities, including liabilities under the Securities Act.
Unless otherwise specified in the related prospectus supplement,
each series of securities will be a new issue with no
established trading market, other than shares of Series A
common stock of Mueller Water Products, Inc., which are listed
on the NYSE. Any common stock sold pursuant to a prospectus
supplement will be listed on the NYSE, subject to official
notice of issuance. We may elect to list any series of debt
securities or preferred stock on an exchange, but we are not
obligated to do so. It is possible that one or more underwriters
may make a market in the securities, but such underwriters will
not be obligated to do so and may discontinue any market making
at any time without notice. No assurance can be given as to the
liquidity of, or the trading market for, any offered securities.
In connection with an offering, the underwriters may purchase
and sell securities in the open market. These transactions may
include short sales, stabilizing transactions and purchases to
cover positions created by short sales. Short sales involve the
sale by the underwriters of a greater number of securities than
they are required to purchase in an offering. Stabilizing
transactions consist of bids or purchases made for the purpose
of preventing or retarding a decline in the market price of the
securities while an offering is in progress. The underwriters
also may impose a penalty bid. This occurs when a particular
underwriter repays to the underwriters a portion of the
underwriting discount received by it because the underwriters
have repurchased securities sold by or for the account of that
underwriter in stabilizing or short-covering transactions. These
activities by the underwriters may stabilize, maintain or
otherwise affect the market price of the securities. As a
result, the price of the securities may be higher than the price
that otherwise might exist in the open market.
21
If these activities are commenced, they may be discontinued by
the underwriters at any time. Underwriters may engage in
over-allotment. If any underwriters create a short position in
the securities in an offering in which they sell more securities
than are set forth on the cover page of the applicable
prospectus supplement, the underwriters may reduce that short
position by purchasing the securities in the open market.
Underwriters, dealers or agents that participate in the offer of
securities, or their affiliates or associates, may have engaged
or engage in transactions with and perform services for, us or
our affiliates in the ordinary course of business for which they
may have received or receive customary fees and reimbursement of
expenses.
LEGAL
MATTERS
The validity of any securities offered by this prospectus will
be passed upon for us by Simpson, Thacher & Bartlett
LLP, New York, New York. If legal matters in connection with
offerings made pursuant to this prospectus are passed upon by
counsel to underwriters, dealers or agents, if any, such counsel
will be named in the prospectus supplement related to such
offering.
EXPERTS
The consolidated financial statements of Mueller Water Products,
Inc. and subsidiaries at September 30, 2008, and for the
year then ended, incorporated by reference in this registration
statement and the effectiveness of Mueller Water Products,
Inc.s internal control over financial reporting at
September 30, 2008 have been audited by Ernst &
Young LLP, an independent registered public accounting firm, as
set forth in their reports thereon and incorporated herein by
reference. Such consolidated financial statements have been
incorporated herein by reference in reliance upon such reports
given on the authority of such firm as experts in accounting and
auditing.
The financial statements as of September 30, 2007 and for
each of the two years in the period ended September 30,
2007 incorporated in this registration statement by reference to
the Annual Report on
Form 10-K
for the year ended September 30, 2008 have been so
incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
22
32,280,000 Shares
Mueller Water Products,
Inc.
Series A Common
Stock
PROSPECTUS SUPPLEMENT
BofA Merrill Lynch
Goldman, Sachs &
Co.
Robert W. Baird &
Co.
Morgan Stanley
SunTrust Robinson
Humphrey
BB&T Capital
Markets
Brean Murray,
Carret & Co., LLC
September 17, 2009