Exhibit 4.4
REGISTRATION AGREEMENT
This Registration Agreement is made as of June 16, 2005, among Mid-Western
Aircraft Systems Holdings, Inc., a Delaware corporation (the "COMPANY"), and the
Persons listed on Schedule A attached hereto and such other stockholders of the
Company as may, from time to time, become parties to this Agreement in
accordance with the provisions hereof (the "INVESTORS").
Certain of the Investors and the Company are parties to a subscription
agreement pertaining to the Investors' investment and/or contribution to the
Company. In order to induce those Investors which are parties to the
subscription agreement to enter into such agreements, the Company has agreed to
provide the registration rights set forth in this Agreement. Unless otherwise
provided in this Agreement, capitalized terms used herein shall have the
meanings set forth in Section 9.
The parties, intending to be legally bound hereby, agree as follows:
1. Demand Registrations.
(a) Requests for Registration. Subject to Sections 1(b) and 1(c), at
any time, the Majority Onex Investors may request registration under the
Securities Act of all or part of their Registrable Securities on Form S-1 or any
similar long-form registration ("LONG-FORM REGISTRATIONS") or, if available, on
Form S-2 or S-3 or any similar short-form registration ("SHORT-FORM
REGISTRATIONS"). In addition, at any time after the consummation of a Public
Offering, the holders of a majority of the Registrable Securities may request
Long-Form Registrations or, if available, Short-Form Registrations of all or
part of their Registrable Securities until such holders cease to hold at least
10% of the number of Registrable Securities held by such holders as of the date
hereof. Each request for a registration under this Section 1(a) shall specify
the approximate number of Registrable Securities requested to be registered and
the proposed method of distribution. Within ten days after receipt of any such
request, the Company will give written notice of such requested registration to
all other holders of Registrable Securities and, subject to Section 1(d), will
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice. All registrations requested pursuant
to this Section 1(a) are referred to herein as "DEMAND REGISTRATIONS."
(b) Long-Form Registrations. The holders of a majority of the
Registrable Securities will be entitled to request three Long-Form Registrations
in which the Company will pay all Registration Expenses and the Majority Onex
Investors will be entitled to request an unlimited number of Long-Form
Registrations in which the Company will pay all Registration Expenses
("COMPANY-PAID LONG-FORM REGISTRATIONS"). A registration will not count as one
of the permitted Long-Form Registrations until it has become effective (unless
such Long-Form Registration has not become effective due solely to the fault of
the holders requesting such registration and such holders do
not agree to bear all Registration Expenses (as defined below) in connection
therewith); provided that in any event (absent such an agreement by the holders
requesting such registration) the Company will pay all Registration Expenses in
connection with any registration initiated as a Company-Paid Long-Form
Registration whether or not it has become effective. All Long-Form Registrations
shall be underwritten registrations.
(c) Short-Form Registrations. In addition to the Company-Paid
Long-Form Registrations provided pursuant to Section 1(b), the Majority Onex
Investors and the holders a majority of the Registrable Securities will each be
entitled to request an unlimited number of Short-Form Registrations in which the
Company will pay all Registration Expenses. Demand Registrations will be
Short-Form Registrations whenever the Company is permitted to use any applicable
short form, but the Company shall include in the prospectus information of the
type required in a Long-Form Registration to the extent reasonably requested by
the managing underwriters. After the Company has become subject to the reporting
requirements of the Securities Exchange Act, the Company will use its
commercially reasonable efforts to be eligible to use Short-Form Registrations
for the sale of Registrable Securities. The Majority Onex Investors may require
that any Short-Form Registration provide, pursuant to Rule 415 under the
Securities Act or any successor rule, for the continuous offering and rule of
Registrable Securities through market transactions and such other methods of
distribution as the Majority Onex Investors may reasonably request (a "SHELF
REGISTRATION").
(d) Priority on Demand Registrations. The Company will not include in
any Demand Registration any securities that are not Registrable Securities
without the prior written consent of the holders of at least a majority of the
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted pursuant to the immediately preceding sentence, other securities
requested to be included in such offering exceeds the number of Registrable
Securities and other securities, if any, which can be sold therein without
adversely affecting the marketability of the offering, the Company will include
in such registration prior to the inclusion of any securities which are not
Registrable Securities the number of Registrable Securities requested to be
included (whether upon exercise of a demand registration right or upon exercise
of the right to participate in such a demand registration) that in the opinion
of such underwriters can be sold without adversely affecting the marketability
of the offering, pro rata among the respective holders thereof on the basis of
the number of Registrable Securities requested to be included by each such
holder.
(e) Restrictions on Demand Registrations. The Company will not be
obligated to effect any Demand Registration, other than a Shelf Registration,
within six months after the effective date of a Demand Registration or a
registration in which the holders of Registrable Securities were given piggyback
rights pursuant to Section 2 and in which there was no reduction in the number
of Registrable Securities requested to be included. The Company may postpone for
up to six months the filing or the effectiveness of a registration statement for
a Demand Registration if the Board of Directors of the Company determines that
such Demand Registration would reasonably be expected to have an
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adverse effect on (i) any proposal or plan by the Company or any of its
subsidiaries to engage in any acquisition of assets (other than in the ordinary
course of business) or any merger, consolidation, tender offer or similar
transaction, or (ii) any material corporate development; provided that in such
event, the holders of Registrable Securities initially requesting such Demand
Registration will be entitled to withdraw such request and, if such request is
withdrawn, such Demand Registration will not count as a requested Demand
Registrations hereunder and the Company will pay all Registration Expenses in
connection with such registration.
(f) Selection of Underwriters. The holders of a majority of the
Registrable Securities included in any Demand Registration will have the right
to select the investment banker(s) and manager(s) to administer the offering,
subject to the Company's approval which will not be unreasonably withheld.
(g) Other Registration Rights. Subject to the following provisos, the
Company will not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, without the prior written
consent of the holders of at least a majority of the Registrable Securities;
provided that the Company may grant such rights to request the Company to
register any equity securities of the Company as are consistent with any union
equity participation programs implemented by the Company, in its sole
discretion, on or prior to June 16, 2006; provided further that the Company may
grant rights to other Persons to participate in Piggyback Registrations or
Demand Registrations so long as such rights are subordinate to the rights of the
holders of Registrable Securities with respect to such Piggyback Registrations
or Demand Registrations.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any
of its securities under the Securities Act (including primary registrations on
behalf of the Company and secondary registrations on behalf of the holders of
its securities other than pursuant to a Demand Registration) and the
registration form to be used may be used for the registration of Registrable
Securities (a "PIGGYBACK REGISTRATION"), the Company will give prompt written
notice to all holders of Registrable Securities of its intention to effect such
a registration and will include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein within 15 days after the receipt of the Company's notice. However, the
Company shall not include Registrable Securities in a primary registration on
behalf of the Company if the Majority Onex Investors so determine.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such
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registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include
in such registration (i) first, the securities the Company proposes to sell,
(ii) second, the Registrable Securities requested to be included in such
registration, pro rata among the holders of such Registrable Securities on the
basis of the number of shares requested to be included by each such holder, and
(iii) third, other securities requested to be included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include
in such registration (i) first, pro rata among the securities requested to be
included therein by the holders requesting such registration and the other
Registrable Securities requested to be included in such registration, on the
basis of the number of shares requested to be included by each such holder, and
(ii) second, other securities requested to be included in such registration.
(e) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the Company's selection of investment banker(s) and
manager(s) for the offering will be subject to approval by the holders of a
majority of the Registrable Securities included in such Piggyback Registration.
Such approval will not be unreasonably withheld.
(f) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
Section 1 or pursuant to this Section 2, and if such previous registration has
not been withdrawn or abandoned, the Company will not, except as required by
Section 1, file or cause to be effected any other registration of any of its
equity securities or securities convertible or exchangeable into or exercisable
for its equity securities under the Securities Act (except on Form S-8 or any
successor form), whether on its own behalf or at the request of any holder or
holders of such securities, until a period of at least six months has elapsed
from the effective date of such previous registration.
3. Holdback Agreements.
(a) Each holder of Registrable Securities agrees not to effect any
public sale or distribution (including sales pursuant to Rule 144 under the
Securities Act) of Registrable Securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven days prior to and the 90-day (180-day in the case of the initial Public
Offering) period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration in which Registrable
Securities are included or which is the initial Public Offering (except as part
of such underwritten registration), unless the underwriters managing the
registered public offering otherwise agree. In connection with any underwritten
Demand Registration, each holder of Registrable Securities will, if so requested
by the managing underwriter, enter into customary lock-up agreements for the
periods specified in the preceding sentence (or such shorter periods to which
the managing
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underwriter may agree), subject to extension for up to 35 days on customary
terms by reason of earnings releases or material news or events concerning the
Company.
(b) The Company agrees (i) not to effect any public sale or
distribution (including sales pursuant to Rule 144 under the Securities Act) of
its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
90-day period (180-day in the case of the Initial Public Offering) beginning on
the effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration (except as part of such underwritten registration or
pursuant to registrations on Form S-8 or any successor form), unless the
underwriters managing the registered public offering otherwise agree, and (ii)
to cause each holder of its common stock, or any securities convertible into or
exchangeable or exercisable for common stock, purchased from the Company at any
time after the date of this Agreement (other than in a registered public
offering) to agree not to effect any public sale or distribution (including
sales pursuant to Rule 144 under the Securities Act) of any Registrable
Securities during such period (except as part of such underwritten registration,
if otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use commercially reasonable efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective (provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to the counsel selected by the
holders of a majority of the Registrable Securities covered by such registration
statement copies of all such documents proposed to be filed, which documents
will be subject to the review of such counsel);
(b) prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for the period required to accomplish the plan of
distribution set forth therein (but not, except in the case of a Shelf
Registration, more than six months) and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of distribution by the sellers thereof set forth in such registration
statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
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(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction, in each case where it would not otherwise be required to qualify,
subject itself to taxation or consent to general service of process but for this
subparagraph);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company will
promptly prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed, if eligible for such listing, on one
or more securities exchanges or the NASD automated quotation system (on the
National Market System if the Company so qualifies);
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
underwriters reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including, without limitation,
effecting a stock split or a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning
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with the first day of the Company's first full calendar quarter after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(l) obtain comfort letters, dated (i) the effective date of such
registration statement, ( ii) the date the Registrable Securities being sold are
delivered to the underwriters, if any, for sale pursuant thereto and (iii) if
required by the underwriters, if any, on or prior to the date of any preliminary
prospectuses, from the Company's independent public accountants in customary
form and covering such matters of the type customarily covered by comfort
letters and if the Registrable Securities included in such registration
statement constitute at least 10% of the securities covered by such registration
statement, also covering such matters as the holders of a majority of the
Registrable Securities being sold reasonably request;
(m) provide a legal opinion of the Company's outside counsel with
respect to the registration statement, each amendment and supplement thereto,
the prospectus included therein (including the preliminary prospectus) and such
other documents relating thereto in customary form and covering such matters of
the type customarily covered by legal opinions of such nature;
(n) if requested by the managing underwriter or underwriters or a
holder of Registrable Securities being sold in connection with an underwritten
offering (including an underwritten offering under a Shelf Registration),
promptly incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriters and the holders of a majority of the
Registrable Securities being sold agree should be included therein relating to
the plan of distribution with respect to such Registrable Securities, including,
without limitation, information with respect to the number of Registrable
Securities being sold to such underwriters, the purchase price being paid
thereof by such underwriters and with respect to any other terms of the
underwritten (or best efforts underwritten) offering of the Registrable
Securities to be sold in such offering; and make all required filings of such
prospectus supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
(o) cooperate with the selling holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities to be in
such denominations and registered in such names as the managing underwriters may
request at least two business days prior to any sale of Registrable Securities
to the underwriters;
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(p) cooperate with, and make members of management available to
participate in, road shows and other marketing activities as reasonably
requested by the managing underwriter or underwriters; and
(q) use its best efforts to cause the Registrable Securities covered
by the applicable registration statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities.
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses associated with filings required to be made
with the NASD (including, if applicable, the fees and expenses of any "qualified
independent underwriter"and its counsel as may be required by the rules and
regulations of the NASD), fees and expenses of compliance with securities or
blue sky laws, printing expenses, messenger and delivery expenses and fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company (all such expenses being herein called
"REGISTRATION EXPENSES"), will be borne as provided in this Agreement, except
that the Company will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed or on the NASD
automated quotation system (on the National Market System if the Company so
qualifies).
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company will reimburse the holders of Registrable Securities
covered by such registration for, or pay directly, the reasonable fees and
disbursements of one counsel chosen by the holders of a majority of the
Registrable Securities initially requesting such registration (in the case of a
Demand Registration) or the holders of a majority of the Registrable Securities
included in such registration (in the case of a Piggyback Registration).
(c) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
will pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
will be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
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6. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act or the
Securities Exchange Act) against all losses, claims, damages, liabilities and
expenses (including any amounts paid in any settlement effected with the
Company's consent, which consent shall not be unreasonably withheld) caused by
any untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading or any violation by the Company of any federal, state or common
law applicable to the Company and relating to action required of or inaction by
the Company in connection with such registration, except insofar as the same are
caused by or contained in any information furnished in writing to the Company by
such holder which specifically states that it is for use in the preparation of
such registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or by such holder's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company will indemnify the underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning of
the Securities Act or the Securities Exchange Act) to the same extent as
provided above with respect to the indemnification of the holders of Registrable
Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder will furnish to the
Company in writing such information relating to such holder and its Registrable
Securities as the Company reasonably requests for use in connection with any
such registration statement or prospectus and, to the extent permitted by law,
will indemnify the Company, its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act or the Securities
Exchange Act) against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material fact contained
in the registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
omission is contained in any information so furnished in writing by such holder
which specifically states that it is for use in the preparation of such
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto; provided that the obligation to indemnify will be
individual to each holder and will be limited to the net amount of proceeds
received by such holder from the sale of Registrable Securities pursuant to such
registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (but any failure to so notify the indemnifying
party shall not relieve it of any liability which it may otherwise have to any
indemnified party unless such failure shall materially adversely affect the
defense of such claim) and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such
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indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party will not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf
of, or knowledge of, the indemnified party or any officer, director or
controlling Person of such indemnified party and will survive the transfer of
securities. The Company also agrees to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in such
proportion as is appropriate to reflect the relative benefits received by, and
the relative fault of, the Company and such indemnified party in the event the
Company's indemnification is unavailable for any reason. The indemnification and
contribution provided for in this Agreement shall be in addition to, and not in
lieu of, the indemnification and contribution provisions in any underwriting or
similar agreement.
7. Participation in Registrations.
(a) No Person may participate in any registration hereunder which is
underwritten unless such Person (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including, without
limitation, pursuant to the terms of any overallotment or "green shoe" option
requested by the managing underwriter(s)) and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
(b) Each Person that is participating in any registration hereunder
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 4(e), such Person will forthwith
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by Section 4(e).
8. Current Public Information. At all times after the Company has effected
a Public Offering, the Company will use commercially reasonable efforts to file
all reports required to be filed by it under the Securities Act and the
Securities Exchange Act and the rules and regulations adopted by the Securities
and Exchange Commission thereunder, and will take such further action as any
holder or holders of Registrable Securities may reasonably request, all to the
extent required to enable such holders to sell Registrable Securities pursuant
to Rule 144 adopted by the Securities and Exchange
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commission under the Securities Act (as such rule may be amended from time to
time) or any similar rule or regulation hereafter adopted by the Securities and
Exchange Commission.
9. Definitions.
(a) "COMMON STOCK" means the Company's common stock, par value $0.01
per share.
(b) "PERSON" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization or a government or any department or agency thereof.
(c) "PUBLIC OFFERING" means the sale in an underwritten public
offering under the Securities Act of equity securities of the Company.
(d) "PUBLIC SALE" means any Public Offering or sale to the public
pursuant to a registration statement or through a broker, dealer or to a market
maker pursuant to the provisions of Rule 144 adopted under the Securities Act.
(e) "REGISTRABLE SECURITIES" means (i) any Common Stock issued and
outstanding, (ii) any of the Company's Common Stock issued or issuable with
respect to the securities referred to in clause (i) by way of a stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization, and (iii) any other shares of the
Company's Common Stock held by Persons holding securities described in clauses
(i) or (ii). As to any particular Registrable Securities, such securities will
cease to be Registrable Securities when they have been sold pursuant to a Public
Sale. For purposes of this Agreement, a Person will be deemed to be a holder of
Registrable Securities whenever such Person has the right to acquire directly or
indirectly such Registrable Securities (upon conversion, exchange or exercise in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected.
(f) "SECURITIES ACT" means the Securities Act of 1933, as amended, or
any similar federal law then in force.
(g) "SECURITIES AND EXCHANGE COMMISSION" includes any governmental
body or agency succeeding to the functions thereof.
(h) "SECURITIES EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended, or any similar federal law then in force.
(i) "STOCKHOLDERS AGREEMENT" means the Investor Stockholder Agreement,
of even date herewith, entered into by and among the Company and the Investors.
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Unless otherwise stated, other capitalized terms contained herein have the
meanings set forth in the Stockholders Agreement.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Remedies. The parties shall be entitled to enforce their rights
under this Agreement specifically to recover damages by reason of any breach of
any provision of this Agreement and to exercise all other rights existing in
their favor. The parties hereto agree and acknowledge that money damages may not
be an adequate remedy for any breach of the provisions of this Agreement and
that any party may in its sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or temporary, preliminary or
permanent injunctive relief (without posting a bond or other security) in order
to enforce or prevent any violation of the provisions of this Agreement.
(c) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company, the Majority Onex Investors and the holders of
at least a majority of the Registrable Securities. The failure of a party to
insist upon strict adherence to any term of this Agreement on any occasion shall
not be considered a waiver or deprive that party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
No purported waiver shall be effective unless in writing. The waiver by any
party of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent or other breach.
(d) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(e) Severability. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provisions of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
(f) Counterparts; Joinder. This Agreement may be executed in
counterparts, each of which shall be considered an original, but all of which
together shall constitute one and the same instrument. Additional Persons may
become parties to this Agreement as "Investors" with the consent of the Company
and the Majority Onex Investors, by executing and delivering to the Company a
joinder agreement.
12
(g) Interpretation. In this Agreement, unless a contrary intention
appears, (i) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision, (ii) the words "include," "includes" or
"including" shall be deemed to be followed by the words "without limitation,"
(iii) reference to any Section means such Section hereof, (iv) words of any
gender shall be deemed to include each other gender, and (v) words using the
singular or plural number shall also include the plural or singular number,
respectively. No provision of this Agreement shall be interpreted or construed
against any party hereto solely because such party or its legal representative
drafted such provision.
(h) Captions. The captions in this Agreement are for convenience of
reference only and shall not be given any effect in the interpretation of this
Agreement.
(i) Governing Law. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of Delaware without regard to
conflicts of laws principles which would result in the application of the laws
of another jurisdiction.
(j) Jurisdiction. The parties hereby irrevocably and unconditionally
consent to submit to the exclusive jurisdiction of the courts of the State of
Delaware and the United States District Court for the District of Delaware for
any actions, suits or proceedings arising out of or relating to this agreement
and the transactions contemplated hereby (and agree not to commence any action,
suit or proceeding relating thereto except in such courts). The parties hereby
irrevocably and unconditionally waive any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of Delaware and the United States
District Court from the District of Delaware, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.
(k) Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(l) Complete Agreement. This Agreement, the documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understanding, agreements or representations by or among the parties,
written or oral, that may be related to the subject matter hereof in any way.
(m) Notices. All notices, consents and other communications required
or permitted to be given under or by reason of this Agreement shall be in
writing, shall be delivered personally or by e-mail or telecopy as described
below or by reputable overnight courier, and shall be deemed given on the date
on which such delivery is made. If delivered by e-mail or telecopy, such notices
or communications shall be confirmed by a registered or certified letter (return
receipt requested), postage
13
prepaid. Such notices, consents and other communications will be sent to the
parties at the addresses specified for notices in the Stockholders Agreement or
to such other address as the recipient has specified by prior notice to the
other parties.
* * * * *
14
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto, all as of the date first above written.
MID-WESTERN AIRCRAFT SYSTEMS
HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
15
ONEX PARTNERS LP
By: Onex Partners GP LP,
its General Partner
By: Onex Partners Manager LP, its Agent
By: Onex Partners Manager GP Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
ONEX AMERICAN HOLDINGS II LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
WIND EXECUTIVE INVESTCO LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
ONEX US PRINCIPALS LP
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Representative
16
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto, all as of the date first written above.
INVESTOR
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President/ Chief Executive Officer
COUNTERPART SIGNATURE PAGE TO
REGISTRATION AGREEMENT
BY AND AMONG SPIRIT AEROSYSTEMS HOLDINGS, INC. AND CERTAIN OF ITS STOCKHOLDERS
DATED AS OF JUNE 16, 2005
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
listed below, all as of _______ __, 200__.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO
REGISTRATION AGREEMENT
BY AND AMONG SPIRIT AEROSYSTEMS HOLDINGS, INC. AND CERTAIN OF ITS STOCKHOLDERS
DATED AS OF JUNE 16, 2005
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
listed below, all as of December 16, 2005.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO
REGISTRATION AGREEMENT
BY AND AMONG SPIRIT AEROSYSTEMS HOLDINGS, INC. AND CERTAIN OF ITS STOCKHOLDERS
DATED AS OF JUNE 16, 2005
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
listed below, all as of December 21, 2005.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO
REGISTRATION AGREEMENT
BY AND AMONG SPIRIT AEROSYSTEMS HOLDINGS, INC. AND CERTAIN OF ITS STOCKHOLDERS
DATED AS OF JUNE 16, 2005
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
listed below, all as of 12/17, 2005
/s/ ▇▇▇▇ ▇▇▇▇▇
--------------
Ivor "Ike" ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO
REGISTRATION AGREEMENT
BY AND AMONG SPIRIT AEROSYSTEMS HOLDINGS, INC. AND CERTAIN OF ITS STOCKHOLDERS
DATED AS OF JUNE 16, 2005
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
listed below, all as of December 21, 2005.
/s/ ▇. ▇▇▇▇▇▇
-------------
▇▇▇▇▇▇▇ "Buzz" ▇▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO
REGISTRATION AGREEMENT
BY AND AMONG SPIRIT AEROSYSTEMS HOLDINGS, INC. AND CERTAIN OF ITS STOCKHOLDERS
DATED AS OF JUNE 16, 2005
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
listed below, all as of December 19, 2005.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO
REGISTRATION AGREEMENT
BY AND AMONG SPIRIT AEROSYSTEMS HOLDINGS, INC. AND CERTAIN OF ITS STOCKHOLDERS
DATED AS OF JUNE 16, 2005
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
listed below, all as of ________ __, 200__.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------
▇▇▇▇▇▇ ▇▇▇▇