UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT PURSUANT

TO SECTION 13 or 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

DATE OF REPORT (Date of earliest event reported):        February 23, 2006

 

MUELLER WATER PRODUCTS, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

Delaware

 

333-131521

 

20-3547095

(State or Other Jurisdiction of
Incorporation or Organization)

 

(Commission File Number)

 

(I.R.S. Employer
Identification Number)

 

 

 

 

 

 

 

4211 W. Boy Scout
Boulevard
Tampa, FL 33607

 

 

 

 

(Address of Principal Executive Offices)

 

 

 

(813) 871-4811

(Registrant’s telephone number, including area code)

 

Not applicable.

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o             Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o             Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o             Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240-14d-2(b))

 

o             Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240-13e-4(c))

 

 


 

Item 1.01.                                           Entry into a Material Definitive Agreement.

 

On February 23, 2006, Mueller Water Products, Inc. (the “Company”), DLJ Merchant Banking II, Inc., as the Stockholders Representative, and Walter Industries, Inc., entered into a letter agreement with respect to the Agreement and Plan of Merger dated as of June 17, 2005, as amended (the “Merger Agreement”) among the Company, Walter Industries, Inc., JW MergerCo, Inc. and DLJ Merchant Banking II, Inc., as the Stockholders Representative. Under the terms of the February 23, 2006 letter agreement, the parties determined the Final Closing Cash and Final Working Capital (as these terms are defined in the Merger Agreement) and agreed that the Shortfall Amount under the Merger Agreement is $10,527,000. As a result, the Company, DLJ Merchant Banking II, Inc. and Walter Industries have jointly instructed The Bank of New York, as Escrow Agent, to pay and, as of February 23, 2006, the Escrow Agent has paid, the amounts in the Escrow Account (as defined in the Merger Agreement), including the $25 million initially deposited in the Escrow Account and the approximately $0.4 million in interest earned through February 23, 2006, net of fees and expenses, as follows: approximately $10.8 million to Walter Industries, Inc. and approximately $14.6 to the former equity holders of the Company, with approximately $11.3 million being paid to DLJ Merchant Banking II, Inc. and its affiliates, and approximately $3.3 million being paid to the Company for further distribution to the Company’s former equity holders. This represents a per-share payment to the former equity holders of the Company equal to approximately $0.06/share, and makes the total Share Consideration (as defined in the Merger Agreement) to the Company’s former shareholders equal to approximately $3.75/share.

 

The February 23, 2006 letter agreement is filed herewith as Exhibit 10.1.

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit
Number

 

Title

 

 

 

10.1

 

Letter Agreement dated as February 23, 2006 between Walter Industries, Inc. and Mueller Water Products, Inc.

 

2


 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

Dated:  February 27, 2006

MUELLER WATER PRODUCTS, INC.

 

 

 

 

 

 

 

By:

/s/ VICTOR P. PATRICK

 

 

 

Victor P. Patrick

 

 

Vice President

 

3

Exhibit 10.1

 

February 23, 2006

 

Walter Industries, Inc.

4211 West Boy Scout Boulevard

Tampa, Florida 33607

Attention:  General Counsel

 

Mueller Water Products, Inc.

4211 West Boy Scout Boulevard

Tampa, Florida 33607

Attention: Jeffery W. Sprick

 

Ladies and Gentlemen:

 

Reference is made to the Agreement and Plan of Merger dated as of June 17, 2005 (as amended, the “ Merger Agreement ”) among Mueller Water Products, Inc., Walter Industries, Inc., JW MergerCo, Inc. and DLJ Merchant Banking II, Inc., as the Stockholders’ Representative. Capitalized terms used but not defined herein shall have the meanings specified in the Merger Agreement.

 

Following the delivery of the Closing Statements by the Surviving Corporation, and delivery of a notice of disagreement therewith by the Stockholders’ Representative, the parties hereto have resolved all disputed items and amounts required to determine Final Closing Cash and Final Working Capital and have agreed that the Shortfall Amount is $10,527,000. Accordingly, the parties hereto have agreed that in accordance with the Escrow Agreement, an officer of Buyer and an officer of the Stockholders’ Representative shall, contemporaneously with the execution of this letter agreement, execute and deliver the notice attached as Annex A hereto to the Escrow Agent, to direct the Escrow Agent to release and distribute all funds remaining in the Escrow Account in accordance with the instructions set forth on such notice.

 

Upon the completion of the payments set forth above, the parties confirm that all obligations of the parties under Sections 2.12 and 2.13 of the Merger Agreement shall have been performed and satisfied in full.

 

This letter agreement shall not constitute an amendment or waiver of any term or condition of the Merger Agreement or any other Transaction Agreement, and all of such terms and conditions shall remain in full force and effect. This letter agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts entered into and performed entirely in such state. This letter agreement may be signed in any number of counterparts, each of which shall be deemed an original, and all such counterparts shall together constitute one and the same instrument.

 

[Signature Page Follows]

 


 

IN WITNESS WHEREOF, the parties hereto have caused this letter agreement to be duly executed by their respective authorized officers as of the day and year first above written.

 

 

 

DLJ MERCHANT BANKING II, INC.,

 

as the Stockholders’ Representative

 

 

 

 

 

By:

  /s/ MICHAEL S. ISIKOW

 

 

 

Name: Michael S. Isikow

 

 

Title:   Vice President

 

 

Agreed and Acknowledged

 

WALTER INDUSTRIES, INC.

 

 

By:

  /s/  JOSEPH J. TROY

 

 

Name: Joseph J. Troy

 

Title:   Senior Vice President

 

 

MUELLER WATER PRODUCTS, INC.

 

 

By:

  /s/  VICTOR P. PATRICK

 

 

Name: Victor P. Patrick

 

Title:   Vice President

 


 

Annex A

 

February 23, 2006

 

The Bank of New York

101 Barclay Street - 8W/Escrow

New York, NY 10286

Attention:  Carlos Luciano

 

Ladies and Gentlemen:

 

Reference is made to the Escrow Agreement dated as of October 3, 2005 among Mueller Water Products, Inc., Walter Industries, Inc., DLJ Merchant Banking II, Inc., as the Stockholders’ Representative, and The Bank of New York (the “ Escrow Agreement ”). Capitalized terms used but not defined herein shall have the meanings specified in the Escrow Agreement. This certificate is executed by Buyer and the Stockholders’ Representative pursuant to Section 5(a) of the Escrow Agreement.

 

The Escrow Agent is hereby directed to promptly release and deliver all funds remaining in the Escrow Account as follows:

 

a)                                      $11,223,543.07, plus 26.975% of all interest earned on the Escrow Amount to the date of payment, to the Stockholders’ Representative, who shall distribute such amount to the DLJ Entities in accordance with the provisions of the Merger Agreement:

 

Bank:

 

Citibank, N.A.

 

 

399 Park Avenue

 

 

New York, NY 10036

ABA:  021000089

Account Name:  DLJ Merchant Banking II, Inc.

Account Number:  30554143

Reference:  Mueller Water Products

 

b)                                     $3,228,793.03, plus 7.760% of all interest earned on the Escrow Amount to the date of payment, to the Company, which shall distribute such amount to the Stockholders and holders of Company Warrants (in each case, other than the DLJ Entities), subject to the deduction of the applicable withholding taxes, in accordance with the provisions of the Merger Agreement:

 

Bank:

 

Mellon Bank

 

 

Pittsburgh, PA

ABA:

 

043000261

Account Name:  Mueller Water Products, Inc.

Account Number: 077-1243

 


 

c)                                      $20,663.90 to Davis Polk & Wardwell in respect of Transaction Expenses incurred after the Effective Time (in each case, as defined in the Merger Agreement); and

 

Bank:

 

JPMorgan Chase Bank

 

 

500 Stanton Christiana Rd.

 

 

Newark, DE  19713

ABA:  021 000021

Account Name:  Davis Polk & Wardwell

Account Number:  001533316

Reference:  Mueller Water Products 14530/006

 

d)                                     $10,527,000, plus 65.265% of all interest earned on the Escrow Amount to the date of payment, to:

 

Bank:

 

Bank of America

 

 

Charlotte, NC

ABA:

 

111000012

Account Name:  Walter Industries, Inc.

Account Number:  3750658039

 

The Escrow Agreement shall terminate in accordance with its terms when the Escrow Agent shall have released all amounts in the Escrow Account pursuant to the instructions set forth above.

 

[Signature Page Follows]

 


 

IN WITNESS WHEREOF, the parties hereto have caused this certificate to be duly executed by their respective authorized officers as of the day and year first above written.

 

 

DLJ MERCHANT BANKING II, INC.,

 

as the Stockholders’ Representative

 

 

 

By:

  /s/ MICHAEL S. ISIKOW

 

 

 

Name:

Michael S. Isikow

 

 

Title:

Vice President

 

 

 

 

 

WALTER INDUSTRIES, INC.

 

 

 

By:

  /s/ JOSEPH J. TROY

 

 

 

Name:

Joseph J. Troy

 

 

Title:

Senior Vice President