Exhibit 4.3
Execution Copy
AAR CORP.
2.875% Convertible Notes due
February 1, 2024
Registration Rights
Agreement
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February 3 , 2004
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Goldman, Sachs & Co.,
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As representative of the several
Purchasers
named in Schedule I to the Purchase Agreement
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c/o Goldman, Sachs &
Co.
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85 Broad Street
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New York, New York 10004
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Ladies and Gentlemen:
AAR CORP., a Delaware corporation
(the “Company”), proposes to issue and sell to the
Purchasers (as defined herein) upon the terms set forth in the
Purchase Agreement (as defined herein) its 2.875% Convertible Notes
due February 1, 2024 (the “Securities”). As an
inducement to the Purchasers to enter into the Purchase Agreement
and in satisfaction of a condition to the obligations of the
Purchasers thereunder, the Company agrees with the Purchasers for
the benefit of Holders (as defined herein) from time to time of the
Registrable Securities (as defined herein) as follows:
1.
Definitions
.
(a)
Capitalized terms used herein
without definition shall have the meanings ascribed to them in the
Purchase Agreement. As used in this Agreement, the following
defined terms shall have the following meanings:
“Affiliate” of any specified person means any other person
which, directly or indirectly, is in control of, is controlled by,
or is under common control with such specified person. For
purposes of this definition, control of a person means the power,
direct or indirect, to direct or cause the direction of the
management and policies of such person whether by contract or
otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the
foregoing.
“Closing
Date” means the
First Time of Delivery as defined in the Purchase
Agreement.
“Commission” means the United States Securities and Exchange
Commission, or any other federal agency at the time administering
the Exchange Act or the Securities Act, whichever is the relevant
statute for the particular purpose.
“Common
Stock” means the
Company’s common stock, par value $1.00 per share together
with any associated share purchase rights.
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“DTC”
means The Depository Trust
Company.
“Effective
Date” has the
meaning assigned thereto in Section 2(b)(i) hereof.
“Effective
Failure” has the
meaning assigned thereto in Section 7(b) hereof.
“Effectiveness
Period” has the
meaning assigned thereto in Section 2(b)(i) hereof.
“Effective
Time” means the
time at which the Commission declares the Shelf Registration
Statement effective or at which the Shelf Registration
Statement otherwise becomes effective.
“Electing
Holder” has the
meaning assigned thereto in Section 3(a)(iii)
hereof.
“Exchange
Act” means the
United States Securities Exchange Act of 1934, as
amended.
“Holder”
means any person that is the record
owner of Registrable Securities (and includes any person that has a
beneficial interest in any Registrable Security in book-entry
form).
“Indenture” means the Indenture, dated as of February 3,
2004, between the Company and U.S. Bank National Association
, as amended and supplemented from time to time in
accordance with its terms.
“Liquidated
Damages” has the
meaning assigned thereto in Section 7(a) hereof.
“Managing
Underwriters” means
the investment banker or investment bankers and manager or managers
that shall administer an underwritten offering, if any, conducted
pursuant to Section 6 hereof.
“NASD
Rules” means the
Rules of the National Association of Securities Dealers, Inc., as
amended from time to time.
“Notice and
Questionnaire” means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of
Appendix A hereto.
The term “person”
means an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
“Prospectus” means the prospectus (including, without
limitation, any preliminary prospectus, any final prospectus and
any prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Securities Act) included in
the Shelf Registration Statement, as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of
any portion of the Registrable Securities covered by the Shelf
Registration Statement and by all other amendments and supplements
to such prospectus, including all material incorporated by
reference in such prospectus and all documents filed after the date
of such prospectus by the Company under the Exchange Act and
incorporated by reference therein.
“Purchase
Agreement” means
the purchase agreement, dated as of January 29, 2004, between the
Purchasers and the Company relating to the Securities.
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“Purchasers” means the Purchasers named in Schedule I to
the Purchase Agreement.
“Registrable
Securities” means
all or any portion of the Securities issued from time to time under
the Indenture in registered form and the shares of Common Stock
issuable upon conversion of such Securities; provided ,
however , that a security ceases to be a Registrable
Security when it is no longer a Restricted Security.
“Registration
Default” has the
meaning assigned thereto in Section 7(a) hereof.
“Restricted
Security” means any
Security or share of Common Stock issuable upon conversion thereof
except any such Security or share of Common Stock that (i) has
been effectively registered under the Securities Act and sold in a
manner contemplated by the Shelf Registration Statement,
(ii) has been transferred in compliance with Rule 144 under
the Securities Act (or any successor provision thereto) or is
transferable pursuant to paragraph (k) of such Rule 144 (or
any successor provision thereto) or (iii) has otherwise been
transferred and a new Security or share of Common Stock not subject
to transfer restrictions under the Securities Act has been
delivered by or on behalf of the Company in accordance with
Section 2.1 of the Indenture.
“Rules and
Regulations” means
the published rules and regulations of the Commission promulgated
under the Securities Act or the Exchange Act, as in effect at any
relevant time.
“Securities
Act” means the
United States Securities Act of 1933, as amended.
“Shelf
Registration” means
a registration effected pursuant to Section 2 hereof.
“Shelf Registration
Statement” means a
“shelf” registration statement filed under the
Securities Act providing for the registration of, and the sale on a
continuous or delayed basis by the Holders of, all of the
Registrable Securities pursuant to Rule 415 under the Securities
Act and/or any similar rule that may be adopted by the Commission,
filed by the Company pursuant to the provisions of Section 2
of this Agreement, including the Prospectus contained therein, any
amendments and supplements to such registration statement,
including post-effective amendments, and all exhibits and all
material incorporated by reference in such registration
statement.
“ Suspension
Period” has the meaning assigned thereto in Section 2(c)
hereof.
“Trust Indenture
Act” means the
Trust Indenture Act of 1939, or any successor thereto, and the
rules, regulations and forms promulgated thereunder, as the same
shall be amended from time to time.
The term
“underwriter” means any underwriter of
Registrable Securities in connection with an offering thereof under
a Shelf Registration Statement.
(b)
Wherever there is a reference in
this Agreement to a percentage of the “principal
amount” of Registrable Securities or to a percentage of
Registrable Securities, Common Stock shall be treated as
representing the principal amount of Securities that was
surrendered for conversion or exchange in order to receive such
number of shares of Common Stock.
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2.
Shelf Registration
.
(a)
The Company shall, no later than 90
calendar days following the Closing Date, file with the Commission
a Shelf Registration Statement relating to the offer and sale of
the Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by such Holders
and set forth in such Shelf Registration Statement and,
thereafter, shall use its reasonable best efforts to cause
such Shelf Registration Statement to be declared effective under
the Securities Act no later than 180 calendar days following the
Closing Date; provided , however , that the Company
may, upon written notice to all Holders, postpone having the Shelf
Registration Statement declared effective for a reasonable period
not to exceed 90 days if the Company possesses material non-public
information, the disclosure of which would have a material adverse
effect on the Company and its subsidiaries taken as a whole, if a
pending transaction that would be material to the Company and its
subsidiaries, taken as a whole, could be materially adversely
affected as a result, or if the Company is unable to file financial
statements required to be included in a shelf registration
statement as a result of a pending litigation; provided, further,
however, that no Holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the
Prospectus forming a part thereof for resales of Registrable
Securities unless such Holder is an Electing Holder.
(b)
The Company shall use its reasonable
best efforts:
(i)
to keep the Shelf Registration
Statement continuously effective under the Securities Act in
order to permit the Prospectus forming a part thereof to be usable
by Holders until the earliest of (1) the sale of all Registrable
Securities registered under the Shelf Registration Statement; (2)
the expiration of the period referred to in Rule 144(k) of the
Securities Act with respect to all Registrable Securities held by
Persons that are not Affiliates of the Company; and (3) two years
from the date (the “Effective Date”) such Shelf
Registration Statement is declared effective (such period being
referred to herein as the “Effectiveness
Period”);
(ii)
after the Effective Time of the
Shelf Registration Statement, promptly upon the request of any
Holder of Registrable Securities that is not then an Electing
Holder, to take any action reasonably necessary to enable such
Holder to use the Prospectus forming a part thereof for resales of
Registrable Securities, including, without limitation, any action
necessary to identify such Holder as a selling securityholder in
the Shelf Registration Statement; provided, however, that
nothing in this subparagraph shall relieve such Holder of the
obligation to return a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a)(ii)
hereof; and
(iii)
if at any time the Securities,
pursuant to Article 4.2 of the Indenture, are convertible into
securities other than Common Stock, to cause, or to cause any
successor under the Indenture to cause, such securities to be
included in the Shelf Registration Statement no later than the date
on which the Securities may then be convertible into such
securities.
The Company shall be deemed not to have used its
reasonable best efforts to keep the Shelf Registration Statement
effective during the requisite period if the Company voluntarily
takes any action that would result in Holders of Registrable
Securities covered thereby not being able to offer and sell any of
such Registrable Securities during that period, unless such
action is (A)
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required by applicable law and the Company
thereafter promptly complies with the requirements of
paragraph 3(j) below or (B) permitted pursuant to Section 2(c)
below.
(c)
The Company may suspend the use of
the Prospectus for a period not to exceed 30 days in any 90-day
period or an aggregate of 90 days in any 12-month period (each, a
“Suspension Period”) if the Board of Directors of the
Company shall have determined in good faith that because of valid
business reasons (not including avoidance of the Company’s
obligations hereunder), including the acquisition or divestiture of
assets, pending corporate developments, public filings with the
Commission and similar events, it is in the best interests of the
Company to suspend such use, and prior to suspending such use the
Company provides the Holders with written notice of such
suspension, which notice need not specify the nature of the event
giving rise to such suspension.
3.
Registration
Procedures . In
connection with the Shelf Registration Statement, the following
provisions shall apply:
(a)
(i)
Not less than 30 calendar days prior
to the Effective Time of the Shelf Registration Statement, the
Company shall mail the Notice and Questionnaire to the Holders of
Registrable Securities. No Holder shall be entitled to be
named as a selling securityholder in the Shelf Registration
Statement as of the Effective Time, and no Holder shall be entitled
to use the Prospectus forming a part thereof for resales of
Registrable Securities until such Holder has returned a completed
and signed Notice and Questionnaire to the Company; provided,
however , to be included in the Registration Statement as of
the Effective Time, Holders of Registrable Securities shall have at
least 28 calendar days from the date on which the Notice and
Questionnaire is first mailed to such Holders to return a completed
and signed Notice and Questionnaire to the Company.
(ii)
After the Effective Time of the
Shelf Registration Statement, the Company shall, upon the request
of any Holder of Registrable Securities that is not then an
Electing Holder, promptly send a Notice and Questionnaire to such
Holder. From and after the Effective Time of the Shelf
Registration Statement, the Company shall (A) as promptly as
is practicable after the date a completed and signed Notice and
Questionnaire is delivered to the Company, and in any event within
ten Business Days after such date, prepare and file with the
Commission (x) a supplement to the Prospectus or, if required by
applicable law, a post-effective amendment to the Shelf
Registration Statement and (y) any other document required by
applicable law, so that the Holder delivering such Notice and
Questionnaire is named as a selling securityholder in the Shelf
Registration Statement and is permitted to deliver the Prospectus
to purchasers of such Holder’s Registrable Securities in
accordance with applicable law, and (B) if the Company shall file a
post-effective amendment to the Shelf Registration Statement, use
its reasonable best efforts to cause such post-effective amendment
to become effective under the Securities Act as promptly as is
practicable; provided, however, that if a Notice and
Questionnaire is delivered to the Company during a Suspension
Period, the Company shall not be obligated to take the actions set
forth in this clause (ii) until the termination of such Suspension
Period.
(iii)
The term “Electing
Holder” shall mean any Holder of Registrable Securities that
has returned a completed and signed Notice and Questionnaire to the
Company in accordance with Section 3(a)(i) or 3(a)(ii)
hereof.
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(b)
The Company shall furnish to each
Electing Holder, prior to the Effective Time, a copy of the Shelf
Registration Statement initially filed with the Commission, and
shall furnish to such Holders, prior to the filing thereof with the
Commission, copies of each amendment thereto and each
amendment or supplement, if any, to the Prospectus included
therein, and shall use its reasonable best efforts to reflect in
each such document, at the Effective Time or when so filed
with the Commission, as the case may be, such comments
as such Holders and their respective counsel reasonably may
propose.
(c)
The Company shall promptly take such
action as may be necessary so that (i) each of the Shelf
Registration Statement and any amendment thereto and the Prospectus
forming a part thereof and any amendment or supplement thereto (and
each report or other document incorporated therein by
reference in each case) complies in all material respects with the
Securities Act and the Exchange Act and the respective rules and
regulations thereunder, (ii) each of the Shelf Registration
Statement and any amendment thereto does 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) each
of the Prospectus forming a part of the Shelf Registration
Statement, and any amendment or supplement to such Prospectus, does
not at any time during the Effectiveness Period include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
(d)
The Company shall promptly
advise each Electing Holder, and shall confirm such advice in
writing if so requested by any such Electing Holder:
(i)
when a Shelf Registration Statement
and any amendment thereto has been filed with the Commission and
when a Shelf Registration Statement or any post-effective
amendment thereto has become effective, in each case making a
public announcement thereof by release made to Reuters Economic
Services and Bloomberg Business News;
(ii)
of any request by the Commission for
amendments or supplements to the Shelf Registration Statement
or the Prospectus included therein or for additional
information;
(iii)
of the issuance by the Commission of
any stop order suspending the effectiveness of the Shelf
Registration Statement or the initiation of any proceedings for
such purpose;
(iv)
of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the securities included in the Shelf Registration Statement for
sale in any jurisdiction or the initiation of any proceeding for
such purpose; and
(v)
of the occurrence of any event or
the existence of any state of facts that requires the making of any
changes in the Shelf Registration Statement or the Prospectus
included therein so that, as of such date, such Shelf Registration
Statement and Prospectus do not contain an untrue statement of a
material fact and do not omit to state a material fact required to
be stated therein or necessary to make the statements
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therein (in the case of the
Prospectus, in light of the circumstances under which they
were made) not misleading (which advice shall be accompanied by an
instruction to such Holders to suspend the use of the
Prospectus until the requisite changes have been made).
(e)
The Company shall use its reasonable
best efforts to prevent the issuance, and if issued to obtain the
withdrawal at the earliest possible time, of any order suspending
the effectiveness of the Shelf Registration Statement.
(f)
The Company shall furnish to each
Electing Holder, without charge, at least one copy of the
Shelf Registration Statement and all post-effective
amendments thereto, including financial statements and schedules,
and, if such Electing Holder so requests in writing, all reports,
other documents and exhibits that are filed with or
incorporated by reference in the Shelf Registration
Statement.
(g)
The Company shall, during the
Effectiveness Period, deliver to each Electing Holder, without
charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such Electing
Holder may reasonably request; and the Company consents (except
during the periods specified in Section 2(c) above or during the
continuance of any event or the existence of any state of facts
described in Section 3(d)(v) above) to the use of the
Prospectus and any amendment or supplement thereto by
each of the Electing Holders in connection with the offering and
sale of the Registrable Securities covered by the Prospectus and
any amendment or supplement thereto during the Effectiveness
Period.
(h)
Prior to any offering of Registrable
Securities pursuant to the Shelf Registration Statement, the
Company shall (i) register or qualify or cooperate with the
Electing Holders and their respective counsel in connection with
the registration or qualification of such Registrable
Securities for offer and sale under the securities or “blue
sky” laws of such jurisdictions within the United States as
any Electing Holder may reasonably request, (ii) keep such
registrations or qualifications in effect and comply with such laws
so as to permit the continuance of offers and sales in such
jurisdictions for so long as may be necessary to enable any
Electing Holder or underwriter, if any, to complete its
distribution of Registrable Securities pursuant to the Shelf
Registration Statement, and (iii) take any and all other actions
necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities; provided ,
however , that in no event shall the Company be obligated to
(A) qualify as a foreign corporation or as a dealer in securities
in any jurisdiction where it would not otherwise be required to so
qualify but for this Section 3(h) or (B) file any general
consent to service of process in any jurisdiction where it is not
as of the date hereof so subject.
(i)
Unless any Registrable Securities
shall be in book-entry only form, the Company shall cooperate with
the Electing Holders to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be
sold pursuant to the Shelf Registration Statement, which
certificates, if so required by any securities exchange upon which
any Registrable Securities are listed, shall be penned,
lithographed or engraved, or produced by any combination of such
methods, on steel engraved borders, and which certificates shall be
free of any restrictive legends and in such permitted denominations
and registered in such names as Electing Holders may request in
connection with the sale of Registrable Securities pursuant to the
Shelf Registration Statement.
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(j)
Upon the occurrence of any event or
the existence of any state of facts contemplated by paragraph
3(d)(v) above, the Company shall promptly prepare a
post-effective amendment to any Shelf Registration Statement
or an amendment or supplement to the related Prospectus or file any
other required document so that, as thereafter delivered to
purchasers of the Registrable Securities included therein, the
Prospectus will not include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. If the Company notifies the Electing
Holders of the occurrence of any event or the existence of any
state of facts contemplated by paragraph 3(d)(v) above, the
Electing Holder shall suspend the use of the Prospectus until the
requisite changes to the Prospectus have been made.
(k)
Not later than the Effective Time of
the Shelf Registration Statement, the Company shall provide a CUSIP
number for the Registrable Securities that are debt
securities.
(l)
The Company shall use its reasonable
best efforts to comply with all applicable Rules and Regulations,
and to make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen
months after (i) the effective date (as defined in Rule 158(c)
under the Securities Act) of the Shelf Registration Statement,
(ii) the effective date of each post-effective amendment to
the Shelf Registration Statement, and (iii) the date of each
filing by the Company with the Commission of an Annual Report on
Form 10-K that is incorporated by reference in the Shelf
Registration Statement, an earning statement of the Company and its
subsidiaries complying with Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule
158).
(m)
Not later than the Effective Time of
the Shelf Registration Statement, the Company shall cause the
Indenture to be qualified under the Trust Indenture Act; in
connection with such qualification, the Company shall cooperate
with the Trustee under the Indenture and the Holders (as defined in
the Indenture) to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with
the terms of the Trust Indenture Act; and the Company shall
execute, and shall use all reasonable efforts to cause the Trustee
to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed with
the Commission to enable such Indenture to be so qualified in a
timely manner. In the event that any such amendment or
modification referred to in this Section 3(m) involves the
appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable
provisions of the Indenture.
(n)
In the event of an underwritten
offering conducted pursuant to Section 6 hereof, the Company shall,
if requested, promptly include or incorporate in a Prospectus
supplement or post-effective amendment to the Shelf Registration
Statement such information as the Managing Underwriters reasonably
agree should be included therein and to which the Company does not
reasonably object and shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as
practicable after it is notified of the matters to be
included or incorporated in such Prospectus supplement or
post-effective amendment.
(o)
The Company shall enter into such
customary agreements (including an underwriting agreement in
customary form in the event of an underwritten offering conducted
pursuant to Section 6 hereof) and take all other appropriate action
in order to expedite and facilitate the registration and
disposition of the Registrable Securities, and in
connection
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therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification provisions
and procedures substantially identical to those set forth in
Section 5 hereof with respect to all parties to be indemnified
pursuant to Section 5 hereof.
(p)
The Company shall:
(i)(A)
make reasonably available for
inspection by the Electing Holders, any underwriter participating
in any disposition pursuant to the Shelf Registration Statement,
and any attorney, accountant or other agent retained by such
Electing Holders or any such underwriter all relevant financial and
other records, pertinent corporate documents and properties of the
Company and its subsidiaries, and (B) cause the Company’s
officers, directors and employees to supply all information
reasonably requested by such Electing Holders or any such
underwriter, attorney, accountant or agent in connection with the
Shelf Registration Statement, in each case, as is customary for
similar due diligence examinations; provided ,
however , that all records, information and documents that
are designated in writing by the Company, in good faith, as
confidential shall be kept confidential by such Electing
Holders and any such underwriter, attorney, accountant or agent,
unless such disclosure is made in connection with a court
proceeding or required by law, or such records, information or
documents become available to the public generally or through a
third party without an accompanying obligation of confidentiality;
and provided further that, if the foregoing inspection and
information gathering would otherwise disrupt the Company’s
conduct of its business, such inspection and information gathering
shall, to the greatest extent possible, be coordinated on
behalf of the Electing Holders and the other parties entitled
thereto by one counsel designated by and on behalf of the Electing
Holders and other parties;
(ii)
in connection with any underwritten
offering conducted pursuant to Section 6 hereof, make such
representations and warranties to the Electing Holders
participating in such underwritten offering and to the Managing
Underwriters, in form, substance and scope as are customarily made
by the Company to underwriters in primary underwritten offerings of
equity and convertible debt securities and c
