Exhibit 4.7
EXECUTION COPY
REGISTRATION RIGHTS
AGREEMENT
This REGISTRATION RIGHTS AGREEMENT
dated August 20, 2004 (the “Agreement”) is entered
into by and among Standard Aero Holdings, Inc., a Delaware
corporation (the “Company”), the guarantors listed in
Schedule 1 hereto or that may later become a party hereto
pursuant to a joinder agreement (the “Guarantors”), and
J.P. Morgan Securities Inc. (“JPMorgan”), Lehman
Brothers, Inc. and Credit Suisse First Boston LLC (the
“Initial Purchasers”).
The Company, the Guarantors and the
Initial Purchasers are parties to the Purchase Agreement dated
August 17, 2004 (the “Purchase Agreement”), which
provides for the sale by the Company to the Initial Purchasers of
$200,000,000 aggregate principal amount of the Company’s 8
1 / 4 % Senior Subordinated Notes due 2014 (the
“Securities”) which will be guaranteed on an unsecured
senior subordinated basis by each of the Guarantors. As an
inducement to the Initial Purchasers to enter into the Purchase
Agreement, the Company and the Guarantors have agreed to provide to
the Initial Purchasers and their direct and indirect transferees
the registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the closing under
the Purchase Agreement. The representations, warranties and
obligations of and relating to each of the Guarantors shall not
become effective until the Acquisition Closing (as defined in the
Purchase Agreement), at which time such representations, warranties
and agreements shall become effective pursuant to the terms of a
joinder agreement as required by Section 6(j) of this Agreement and
thereafter all representations, warranties, agreements and
obligations of the Company and the Guarantors hereunder shall be
joint and several.
In consideration of the foregoing,
the parties hereto agree as follows:
1. Definitions . As used
in this Agreement, the following terms shall have the following
meanings:
“Business Day” shall mean
any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law
to remain closed.
“Closing Date” shall mean
the Closing Date as defined in the Purchase Agreement.
“Company” shall have the
meaning set forth in the preamble and shall also include the
Company’s successors.
“Exchange Act” shall mean
the Securities Exchange Act of 1934, as amended from time to
time.
“Exchange Dates” shall
have the meaning set forth in Section 2(a)(ii) hereof.
“Exchange Offer” shall
mean the exchange offer by the Company and the Guarantors of
Exchange Securities for Registrable Securities pursuant to Section
2(a) hereof.
“Exchange Offer
Registration” shall mean a registration under the Securities
Act effected pursuant to Section 2(a) hereof.
“Exchange Offer Registration
Statement” shall mean an exchange offer registration
statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein,
all exhibits thereto and any document incorporated by reference
therein.
“Exchange Securities”
shall mean senior subordinated Securities issued by the Company and
guaranteed by the Guarantors under the Indenture containing terms
identical in all material respects to the Securities (except that
the Exchange Securities will not be subject to restrictions on
transfer or to any increase in annual interest rate for failure to
comply with this Agreement) and to be offered to Holders of
Securities in exchange for Securities pursuant to the Exchange
Offer.
“Guarantors” shall have
the meaning set forth in the preamble and shall also include any
Guarantors’ successors.
“Holders” shall mean the
Initial Purchasers, for so long as they own any Registrable
Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities
under the Indenture; provided that for purposes of Sections 2,
4 and 5 of this Agreement, the term “Holders” shall
include Participating Broker-Dealers.
“Indenture” shall mean
the Indenture relating to the Securities dated as of
August 20, 2004 among the Company, Wells Fargo Bank, National
Association, as trustee, and the Guarantors that become a party
thereto by supplemental indentures as required pursuant to the
Purchase Agreement, as the same may be amended from time to time in
accordance with the terms thereof.
“Initial Purchasers”
shall have the meaning set forth in the preamble.
“Inspector” shall have
the meaning set forth in Section 3(a)(xiii) hereof.
“JPMorgan” shall have the
meaning set forth in the preamble.
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“Majority Holders” shall
mean the Holders of a majority of the aggregate principal amount of
the outstanding Registrable Securities; provided that whenever the
consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, any Registrable
Securities owned directly or indirectly by the Company or any of
its affiliates shall not be counted in determining whether such
consent or approval was given by the Holders of such required
percentage or amount; and provided, further, that if the Company
shall issue any additional Securities under the Indenture prior to
consummation of the Exchange Offer or, if applicable, the
effectiveness of any Shelf Registration Statement, such additional
Securities and the Registrable Securities to which this Agreement
relates shall be treated together as one class for purposes of
determining whether the consent or approval of Holders of a
specified percentage of Registrable Securities has been
obtained.
“Participating
Broker-Dealers” shall have the meaning set forth in Section
4(a) hereof.
“Person” shall mean an
individual, partnership, limited liability company, corporation,
trust or unincorporated organization, or a government or agency or
political subdivision thereof.
“Prospectus” shall mean
the prospectus included in a Registration Statement, including any
preliminary prospectus and any such prospectus as amended or
supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to such
prospectus, and in each case including any document incorporated by
reference therein.
“Purchase Agreement”
shall have the meaning set forth in the preamble.
“Registrable Securities”
shall mean the Securities; provided that the Securities shall cease
to be Registrable Securities (i) when a Registration Statement
with respect to such Securities has been declared effective under
the Securities Act and such Securities have been exchanged or
disposed of pursuant to such Registration Statement, (ii) when
such Securities are eligible to be sold pursuant to Rule 144(k) (or
any similar provision then in force, but not Rule 144A) under
the Securities Act or (iii) when such Securities cease to be
outstanding.
“Registration Expenses”
shall mean any and all expenses incident to performance of or
compliance by the Company and the Guarantors with this Agreement,
including without limitation: (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. registration and
filing fees, (ii) all fees and expenses incurred in connection
with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of counsel for any Underwriters
or Holders in connection with blue sky qualification of any
Exchange Securities or Registrable Securities), (iii) all
expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any Registration
Statement, any Prospectus and any amendments or
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supplements thereto, any
underwriting agreements, securities sales agreements or other
similar agreements and any other documents relating to the
performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) all fees and disbursements relating to
the qualification of the Indenture under applicable securities
laws, (vi) the fees and disbursements of the Trustee and its
counsel, (vii) the fees and disbursements of counsel for the
Company and the Guarantors and, in the case of a Shelf Registration
Statement, the reasonable fees and disbursements of one counsel for
the Holders (which counsel shall be selected by the Majority
Holders and which counsel may also be counsel for the Initial
Purchasers) and (viii) the fees and disbursements of the
independent public accountants of the Company and the Guarantors,
including the expenses of any special audits or
“comfort” letters required by or incident to the
performance of and compliance with this Agreement, but excluding
fees and expenses of counsel to the Underwriters (other than fees
and expenses set forth in clause (ii) above) or the Holders
and underwriting discounts and commissions, brokerage commissions
and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder.
“Registration Statement”
shall mean any registration statement of the Company and the
Guarantors that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement
and all amendments and supplements to any such registration
statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto
and any document incorporated by reference therein.
“SEC” shall mean the
United States Securities and Exchange Commission.
“Securities Act” shall
mean the Securities Act of 1933, as amended from time to time.
“Shelf Additional Interest
Date” shall have the meaning set forth in Section 2(d)
hereof.
“Shelf Effectiveness
Period” shall have the meaning set forth in Section 2(b)
hereof.
“Shelf Registration”
shall mean a registration effected pursuant to Section 2(b)
hereof.
“Shelf Registration
Statement” shall mean a “shelf” registration
statement of the Company and the Guarantors that covers all or a
portion of the Registrable Securities (but no other securities
unless approved by the Holders whose Registrable Securities are to
be covered by such Shelf Registration Statement) on an appropriate
form under Rule 415 under the Securities Act, or any similar
rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and any document
incorporated by reference therein.
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“Shelf Request” shall
have the meaning set forth in Section 2(b) hereof.
“Staff” shall mean the
staff of the SEC.
“Target Registration
Date” shall have the meaning set forth in Section 2(d)
hereof.
“Trust Indenture Act”
shall mean the Trust Indenture Act of 1939, as amended from time to
time.
“Trustee” shall mean the
trustee with respect to the Securities under the Indenture.
“Underwriter” shall have
the meaning set forth in Section 3(e) hereof.
“Underwritten Offering”
shall mean an offering in which Registrable Securities are sold to
an Underwriter for reoffering to the public.
2. Registration Under the
Securities Act . (a) To the extent not prohibited by any
applicable law or applicable interpretations of the Staff, the
Company and the Guarantors shall use their reasonable best efforts
to cause to be filed an Exchange Offer Registration Statement
covering an offer to the Holders to exchange all the Registrable
Securities for Exchange Securities and have such Exchange Offer
Registration Statement remain effective until the earlier of (i)180
days after the closing of the Exchange Offer or (ii) a date
when all Registrable Securities covered by the Exchange Offer
Registration Statement have been sold pursuant thereto. The Company
and the Guarantors shall commence the Exchange Offer promptly after
the Exchange Offer Registration Statement is declared effective by
the SEC and use their reasonable best efforts to complete the
Exchange Offer within 360 days after issuance of the
Securities. The Company and the Guarantors will use their
reasonable best efforts to complete the Exchange Offer not later
than 30 Business Days after the effective date of the Exchange
Offer Registration Statement.
The Company and the Guarantors shall
commence the Exchange Offer by mailing the related Prospectus,
appropriate letters of transmittal and other accompanying documents
to each Holder stating, in addition to such other disclosures as
are required by applicable law, substantially the following:
| (i) |
that the Exchange Offer is being made pursuant to this
Agreement and that all Registrable Securities validly tendered and
not properly withdrawn will be accepted for exchange; |
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| (ii) |
the dates of acceptance for exchange (which shall be a period
of at least 20 Business Days from the date such notice is mailed)
(the “Exchange Dates”); |
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| (iii) |
that any Registrable Security not tendered will remain
outstanding and continue to accrue interest but will not retain any
rights under this Agreement; |
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| (iv) |
that any Holder electing to have a Registrable Security
exchanged pursuant to the Exchange Offer will be required to
surrender such Registrable Security, together with the appropriate
letters of transmittal, to the institution and at the address and
in the manner specified in the notice, prior to the close of
business on the last Exchange Date; and |
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| (v) |
that any Holder will be entitled to withdraw its election, not
later than the close of business on the last Exchange Date, by
sending to the institution and at the address specified in the
notice, a telegram, telex, facsimile transmission or letter setting
forth the name of such Holder, the principal amount of Registrable
Securities delivered for exchange and a statement that such Holder
is withdrawing its election to have such Securities exchanged. |
As a condition to participating in
the Exchange Offer, a Holder will be required to represent to the
Company and the Guarantors that (i) any Exchange Securities to
be received by it will be acquired in the ordinary course of its
business, (ii) at the time of the commencement of the Exchange
Offer it has no arrangement or understanding with any Person to
participate in the distribution (within the meaning of the
Securities Act) of the Exchange Securities in violation of the
provisions of the Securities Act, (iii) it is not an
“affiliate” (within the meaning of Rule 405 under the
Securities Act) of the Company or any Guarantor and (iv) if
such Holder is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Registrable
Securities that were acquired as a result of market-making or other
trading activities, then such Holder will deliver a Prospectus in
connection with any resale of such Exchange Securities.
As soon as practicable after the last
Exchange Date, the Company and the Guarantors shall:
| (i) |
accept for exchange Registrable Securities or portions thereof
validly tendered and not properly withdrawn pursuant to the
Exchange Offer; and |
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| (ii) |
deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so
accepted for exchange by the Company and issue, and cause the
Trustee to promptly authenticate and deliver to each Holder,
Exchange Securities equal in principal amount to the principal
amount of the Registrable Securities surrendered by such
Holder. |
The Company and the Guarantors shall
use their reasonable best efforts to complete the Exchange Offer as
provided above and shall comply with the applicable requirements of
the Securities Act, the Exchange Act and other applicable laws and
regulations in connection with the Exchange Offer. The Exchange
Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any applicable law or applicable
interpretations of the Staff.
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(b) In the event that
(i) the Company and the Guarantors determine that the Exchange
Offer Registration provided for in Section 2(a) above is not
available or may not be completed as soon as practicable after the
last Exchange Date because it would violate any applicable law or
applicable interpretations of the Staff, (ii) the Exchange
Offer is not for any other reason completed by August 15, 2005
or (iii) upon receipt of a written request (a “Shelf
Request”) from any Initial Purchaser after the date of the
commencement of the Exchange Offer representing that it holds
Registrable Securities that are ineligible to be exchanged in the
Exchange Offer, the Company and the Guarantors shall use their
reasonable best efforts to cause to be filed as soon as practicable
after such determination, date or Shelf Request, as the case may
be, a Shelf Registration Statement providing for the sale of all
the Registrable Securities by the Holders thereof and to have such
Shelf Registration Statement declared effective by the SEC.
In the event that the Company and the
Guarantors are required to file a Shelf Registration Statement
pursuant to clause (iii) of the preceding sentence, the
Company and the Guarantors shall use their reasonable best efforts
to file and have declared effective by the SEC both an Exchange
Offer Registration Statement pursuant to Section 2(a) with respect
to all Registrable Securities and a Shelf Registration Statement
(which may be a combined Registration Statement with the Exchange
Offer Registration Statement) with respect to offers and sales of
Registrable Securities held by the Initial Purchasers after
completion of the Exchange Offer.
The Company and the Guarantors agree
to use their reasonable best efforts to keep the Shelf Registration
Statement continuously effective until the expiration of the period
referred to in Rule 144(k) (or any similar rule then in force, but
not Rule 144A) under the Securities Act with respect to the
Registrable Securities or such shorter period that will terminate
when all the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement (the “Shelf Effectiveness
Period”). The Company and the Guarantors further agree to
supplement or amend the Shelf Registration Statement and the
related Prospectus if required by the rules, regulations or
instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the Securities
Act or by any other rules and regulations thereunder for shelf
registration or if reasonably requested by a Holder of Registrable
Securities with respect to information relating to such Holder, and
to use their reasonable best efforts to cause any such amendment to
become effective and such Shelf Registration Statement and
Prospectus to become usable as soon as thereafter practicable. The
Company and the Guarantors agree to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) The Company and the
Guarantors shall pay all Registration Expenses in connection with
any registration pursuant to Section 2(a) or Section 2(b) hereof.
Each Holder shall pay all underwriting discounts and commissions,
brokerage commissions
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and transfer taxes, if any,
relating to the sale or disposition of such Holder’s
Registrable Securities pursuant to the Shelf Registration
Statement.
(d) An Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf
Registration Statement pursuant to Section 2(b) hereof will not be
deemed to have become effective unless it has been declared
effective by the SEC.
In the event that either the Exchange
Offer is not completed or the Shelf Registration Statement, if
required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, is
not declared effective on or prior to August 15, 2005 (the
“Target Registration Date”), the annual interest rate
on the Registrable Securities will be increased by 1.0% and shall
remain at that increased rate until the Exchange Offer is completed
or the Shelf Registration Statement, if required hereby, is
declared effective by the SEC or the Securities become freely
tradable under the Securities Act. In the event the Company
receives a Shelf Request pursuant to Section 2(b)(iii), and
the Shelf Registration Statement required to be filed thereby is
not declared effective by the later of (x) August 15, 2005 or
(y) 90 days after the delivery of such Shelf Request
(such later date, the “Shelf Additional Interest
Date”), then the annual interest rate on the Registrable
Securities will be increased by 1.0% payable commencing from one
day after the Shelf Additional Interest Date and shall remain at
that increased rate until the Shelf Registration Statement is
declared effective.
If the Shelf Registration Statement,
if required hereby, has been declared effective and thereafter
either ceases to be effective or the Prospectus contained therein
ceases to be usable at any time during the Shelf Effectiveness
Period, and such failure to remain effective or usable exists for
more than 45 days (whether or not consecutive) in any 12-month
period, then the annual interest rate on the Registrable Securities
will be increased by 1.0% per annum commencing on the 46th day in
such 12-month period and ending on such date that the Shelf
Registration Statement has again been declared effective or the
Prospectus again becomes usable.
(e) Without limiting the
remedies available to the Initial Purchasers and the Holders, the
Company and the Guarantors acknowledge that any failure by the
Company or the Guarantors to comply with their obligations under
Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for
which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that,
in the event of any such failure, the Initial Purchasers or any
Holder may obtain such relief as may be required to specifically
enforce the Company’s and the Guarantors’ obligations
under Section 2(a) and Section 2(b) hereof.
3. Registration
Procedures . (a) In connection with their obligations
pursuant to Section 2(a) and Section 2(b) hereof, the Company and
the Guarantors shall as expeditiously as possible:
(i) prepare and file with the
SEC a Registration Statement on the appropriate form under the
Securities Act, which form (x) shall be selected by the
Company and the
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Guarantors, (y) shall,
in the case of a Shelf Registration, be available for the sale of
the Registrable Securities by the Holders thereof and
(z) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith; and use their
reasonable best efforts to cause such Registration Statement to
become effective and remain effective for the applicable period in
accordance with Section 2 hereof;
(ii) prepare and file with the
SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period in
accordance with Section 2 hereof and cause each Prospectus to
be supplemented by any required prospectus supplement and, as so
supplemented, to be filed pursuant to Rule 424 under the
Securities Act; and keep each Prospectus current during the period
described in Section 4(3) of and Rule 174 under the Securities
Act that is applicable to transactions by brokers or dealers with
respect to the Registrable Securities or Exchange Securities;
(iii) in the case of a Shelf
Registration, furnish to each Holder of Registrable Securities, to
counsel for the Initial Purchasers, to counsel for such Holders and
to each Underwriter of an Underwritten Offering of Registrable
Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto, as such Holder, counsel or
Underwriter may reasonably request, in order to facilitate the sale
or other disposition of the Registrable Securities thereunder; and
the Company and the Guarantors consent to the use of such
Prospectus and any amendment or supplement thereto in accordance
with applicable law by each of the Holders of Registrable
Securities and any such Underwriters in connection with the
offering and sale of the Registrable Securities covered by and in
the manner described in such Prospectus or any amendment or
supplement thereto in accordance with applicable law;
(iv) use their reasonable best
efforts to register or qualify the Registrable Securities under all
applicable state securities or blue sky laws of such jurisdictions
as any Holder of Registrable Securities covered by a Registration
Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC;
cooperate with such Holders in connection with any filings required
to be made with the National Association of Securities Dealers,
Inc.; and do any and all other acts and things that may be
reasonably necessary or advisable to enabl
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