Exhibit 4.5
$120,000,000
WII COMPONENTS, INC.
10% SENIOR NOTES DUE 2012
REGISTRATION RIGHTS AGREEMENT
February 12, 2004
CREDIT SUISSE FIRST BOSTON LLC,
As Representative of the Several Initial Purchasers,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000
Dear Sirs:
WII Components, Inc., a Delaware corporation (the "ISSUER"), proposes to
issue and sell to Credit Suisse First Boston LLC and Wachovia Capital Markets
LLC (collectively, the "INITIAL PURCHASERS"), upon the terms set forth in a
purchase agreement of even date herewith (the "PURCHASE AGREEMENT"),
$120,000,000 aggregate principal amount of its 10% Senior Notes Due 2012 (the
"INITIAL SECURITIES") to be unconditionally guaranteed (the "GUARANTEES") on an
unsecured senior basis by each of the Issuer's subsidiaries set forth on
Schedule B to the Purchase Agreement (the "GUARANTORS," and together with the
Issuer, the "COMPANY"). The Initial Securities will be issued pursuant to an
Indenture, dated as of February 18, 2004 (the "INDENTURE"), among the Issuer,
the Guarantors and U.S. Bank National Association, as trustee (the "TRUSTEE").
As an inducement to the Initial Purchasers to enter into the Purchase Agreement,
the Company agrees with the Initial Purchasers, for the benefit of the Initial
Purchasers and the holders of the Securities (as defined below) (collectively
the "HOLDERS"), as follows:
1. REGISTERED EXCHANGE OFFER. The Company shall, at its own cost, prepare
and, not later than 120 days (such 120th day being a "FILING DEADLINE") after
the date on which the Initial Purchasers purchase the Initial Securities
pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the
Securities and Exchange Commission (the "COMMISSION") a registration statement
(the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a
proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer
Restricted Securities (as defined in Section 7 hereof), who are not prohibited
by any law or policy of the Commission from participating in the Registered
Exchange Offer, to issue and deliver to such Holders, in exchange for the
Initial Securities, a like aggregate principal amount of debt securities of the
Company issued under the Indenture and identical in all material respects to the
Initial Securities (except for the transfer restrictions relating to the Initial
Securities and the provisions relating to the matters described in Section 7
hereof) and registered under the Securities Act (the "EXCHANGE SECURITIES"). The
Company shall use its commercially reasonable efforts (i) to cause such Exchange
Offer Registration Statement to become effective under the Securities Act within
210 days after the Closing Date (such 210th day being an "EFFECTIVENESS
DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for
not less than 30 days (or longer, if required by applicable law) after the date
notice of the Registered Exchange Offer is mailed to the Holders (such period
being called the "EXCHANGE OFFER REGISTRATION PERIOD").
If the Company commences the Registered Exchange Offer, the Company (i)
will be entitled to close the Registered Exchange Offer 30 days after such
commencement (provided that the Company has accepted all the Initial Securities
theretofore validly tendered in accordance with the terms of the Registered
Exchange Offer) and (ii) will be required to consummate the Registered Exchange
Offer no later than 40 days after the date on which the Exchange Offer
Registration Statement is declared effective (such 40th day being the
"CONSUMMATION DEADLINE").
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall, as promptly as practicable, commence
the Registered Exchange Offer, it being the objective of such Registered
Exchange Offer to enable each Holder of Transfer Restricted Securities (as
defined in Section 7 hereof) electing to exchange the Initial Securities for
Exchange Securities (assuming that such Holder is not an affiliate of the
Company within the meaning of the Securities Act, acquires the Exchange
Securities in the ordinary course of such Holder's business and has no
arrangements with any person to participate in the distribution of the Exchange
Securities and is not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such Exchange
Securities from and after their receipt without any limitations or restrictions
under the Securities Act and without material restrictions under the securities
laws of the several states of the United States.
The Company acknowledges that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder (other than an Initial Purchaser
who is not allowed to participate in the Registered Exchange Offer) which is a
broker-dealer electing to exchange Initial Securities, which it acquired for its
own account as a result of market making activities or other trading activities,
for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a
prospectus containing the information set forth in (a) Annex A hereto on the
cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any such
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell
Exchange Securities acquired in exchange for Initial Securities constituting any
portion of an unsold allotment, is required to deliver a prospectus containing
the information required by Items 507 or 508 of Regulation S-K under the
Securities Act, as applicable, in connection with such sale.
The Company shall keep the Exchange Offer Registration Statement effective
and shall amend and supplement the prospectus contained therein, in order to
permit such prospectus to be lawfully delivered by all persons subject to the
prospectus delivery requirements of the Securities Act for such period of time
as such persons must comply with such requirements in order to resell the
Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such
prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of
180 days and the date on which all Exchanging Dealers and the Initial Purchasers
have sold all Exchange Securities held by them (unless such period is extended
pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus
and any amendment or supplement thereto available to any broker-dealer for use
in connection with any resale of any Exchange Securities for a period of 180
days after the consummation of the Registered Exchange Offer (or such shorter
period during which such persons are required by applicable law to deliver such
prospectus).
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
such Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Company
issued under the Indenture and identical in all material respects (including the
existence of restrictions on transfer under the Securities Act and the
securities laws of the several states of the United States, but excluding
provisions relating to the matters described in Section 7 hereof) to the Initial
Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the
Exchange Securities and the Private Exchange Securities are herein collectively
called the "SECURITIES".
2
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days
(or longer, if required by applicable law) after the date notice thereof is
mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York,
which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Initial Securities at any time
prior to the close of business, New York time, on the last business day on
which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer or
the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Initial Securities validly tendered
and not withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities
so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each
Holder of the Initial Securities, Exchange Securities or Private Exchange
Securities, as the case may be, equal in principal amount to the Initial
Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be subject
to the transfer restrictions set forth in the Indenture and that all the
Securities will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no interest has been
paid on the Initial Securities, from the date of original issue of the Initial
Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will have
no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule
405 of the Securities Act, of the Company or if it is an affiliate, such Holder
will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, (iv) if such Holder is not a
broker-dealer, that it is not engaged in, and does not intend to engage in, the
distribution of the Exchange Securities and (v) if such Holder is a
broker-dealer, that it will receive Exchange Securities for its own account in
exchange for Initial Securities that were acquired as a result of market-making
activities or other trading activities and not directly from the Company for
resale pursuant to Rule 144A or any other available exemption under the
Securities Act and that such Holder will be required to acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
3
Notwithstanding any other provisions hereof, the Company will cause (i) any
Exchange Offer Registration Statement, at the time the Exchange Offer
Registration Statement becomes effective, and any post-effective amendment
thereto and any prospectus forming part thereof and any supplement thereto to
comply in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto to not, when it becomes effective, contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and (iii) any
prospectus forming part of any Exchange Offer Registration Statement, at the
time the Exchange Offer Registration Statement becomes effective, and any
supplement to such prospectus, to not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
2. SHELF REGISTRATION. If, (i) the Company determines that it is not
permitted to effect a Registered Exchange Offer, as contemplated by Section 1
hereof, because it would violate any law or applicable interpretations thereof
by the staff of the Commission, (ii) the Registered Exchange Offer is not
consummated by the 250th day after the Closing Date, (iii) any Initial Purchaser
so requests with respect to the Initial Securities (or the Private Exchange
Securities) not eligible to be exchanged for Exchange Securities in the
Registered Exchange Offer and held by it following consummation of the
Registered Exchange Offer or (iv) any Holder (other than an Exchanging Dealer)
is not eligible to participate in the Registered Exchange Offer or, in the case
of any Holder (other than an Exchanging Dealer) that participates in the
Registered Exchange Offer, such Holder does not receive freely tradeable
Exchange Securities on the date of the exchange or may not resell the Exchange
Securities acquired by it in the Registered Exchange Offer to the public without
delivering a prospectus, and any such Holder so requests, the Company shall take
the following actions (the date on which any of the conditions described in the
foregoing clauses (i) through (iv) occur, including in the case of clauses (iii)
or (iv) the receipt of the required notice, being a "TRIGGER DATE"):
(a) The Company shall, at its cost, as promptly as practicable (but in
no event more than 30 days after the Trigger Date (such 30th day being a
"FILING DEADLINE")) file with the Commission and thereafter shall use its
commercially reasonable efforts to cause to be declared effective (x) in
the case of a Shelf Registration Statement filed pursuant to clause (i) of
the foregoing paragraph, no later than 210 days after the Issue Date and
(y) in the case of a Shelf Registration Statement filed pursuant to clause
(ii), (iii) or (iv) of the foregoing paragraph, no later than 60 days after
the applicable Filing Deadline (such 210th or 60th day, as the case may be,
being an "EFFECTIVENESS DEADLINE") a registration statement (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer Registration
Statement, a "REGISTRATION STATEMENT") on an appropriate form under the
Securities Act relating to the offer and sale of the Transfer Restricted
Securities (as defined in Section 7(d)) by the Holders thereof from time to
time in accordance with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act (hereinafter,
the "SHELF REGISTRATION"); PROVIDED, HOWEVER, that no Holder (other than an
Initial Purchaser) shall be entitled to have the Securi
