Exhibit 4.5
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FORM OF EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
AMERICAN SEAFOODS CORPORATION
Dated as of _______, 2003
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TABLE OF CONTENTS
Page
1. Issuance of Exchange Warrants, etc. .....................................1
1.1 Issuance of Exchange Warrants .....................................1
1.2 Redemption of Partnership Units ...................................2
2. Shelf Registration. .....................................................2
2.1 Registration ......................................................2
2.2 Holder Information ................................................3
3. Registrations Upon Request ..............................................3
3.1 Requests by the Principal Holders .................................3
3.2 Exceptions Where Shelf Registration Statement Is Effective ........4
3.3 Registration Statement Form .......................................4
3.4 Expenses ..........................................................4
3.5 Priority in Demand Registrations ..................................4
4. Incidental Registrations ................................................5
5. Registration Procedures .................................................7
6. Underwritten Offerings. ................................................14
6.1 Underwriting Agreement ...........................................14
6.2 Selection of Underwriters ........................................15
7. Holdback Agreements. ...................................................15
8. [RESERVED] .............................................................16
9. Indemnification. .......................................................16
9.1 Indemnification by the Company ...................................16
9.2 Indemnification by Selling Holders ...............................17
9.3 Conduct of Indemnification Proceedings ...........................17
9.4 Contribution .....................................................18
10. Definitions ............................................................19
11. Miscellaneous ..........................................................22
11.1 Rule 144, etc ....................................................22
11.2 Successors, Assigns, Third-Party Beneficiaries and Transferees ...23
11.3 Entire Agreement .................................................23
11.4 Amendment and Modification .......................................23
11.5 Certain Operating Restrictions, etc. .............................23
11.6 Governing Law ....................................................24
11.7 Invalidity of Provision ..........................................24
11.8 Notices ..........................................................24
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Table of Contents
(continued)
11.9 Headings; Execution in Counterparts ..............................25
11.10 Injunctive Relief ................................................25
11.11 Term .............................................................25
11.12 Further Assurances ...............................................25
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of ____________,
2003, among American Seafoods Corporation, a Delaware corporation (the
"Company"), American Seafoods Holdings, L.P., a Delaware limited partnership
("Holdings"), and American Seafoods, L.P., a Delaware limited partnership
("ASLP"). Capitalized terms used herein are defined in Section 10.
RECITALS:
A. The Company is contemplating an offering of Income Deposit Securities
("IDSs") to the public and engaging in certain other transactions, including
becoming the general partner of Holdings.
B. The Old Securityholders Agreement provides that in such event, the
partners of ASLP shall receive the right to exchange their ASLP interests for
securities of such corporation.
C. In connection with the offering of IDSs, the parties hereto wish to
provide for the issuance by the Company of warrants (the "Exchange Warrants") to
the limited partners and optionholders of ASLP to permit them from time to time
to exchange their ASLP Partnership Units for IDSs, as contemplated by the Old
Securityholders Agreement.
D. The parties hereto also wish to provide for certain management and
operational relationships between them and to set forth certain rights and
obligations with respect to the registration for issuance and resale of the IDSs
under the Securities Act.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth in this Agreement, the parties hereto agree as follows:
1. Issuance of Exchange Warrants, etc.
1.1 Issuance of Exchange Warrants. Immediately following the execution and
delivery of this Agreement and in order to comply with the provisions of Section
5.2(c)(ii) of the Old Securityholders Agreement, the Company shall issue and
grant Exchange Warrants to each limited partner of ASLP and each holder of an
outstanding option to acquire ASLP Partnership Units entitling the holder
thereof to acquire IDSs representing shares of common stock of the Company, par
value $0.01 per share (the "ASC Common Stock"), and the Company's [___] % Senior
Notes due 2013 (the "IDS Notes"). The Exchange Warrants shall be substantially
in the form attached hereto as Exhibit A. Upon the occurrence of any such
exchange, the Company shall become a
limited partner of ASLP in accordance with Section 8.2 of the ASLP Partnership
Agreement.
1.2 Redemption of Partnership Units. The Company shall have the right to
require ASLP to redeem any or all of the ASLP Partnership Units acquired by the
Company pursuant to the exercise of any Exchange Warrant. The consideration for
such redemption shall be comprised of (i) a number of Holdings Partnership Units
equal to the product of (x) the number of Holdings Partnership Units held by
ASLP immediately before the exercise of the Exchange Warrant, divided by the
total number of ASLP Partnership Units then outstanding, and (y) the number of
ASLP Partnership Units so exchanged, and (ii) Holdings Notes in a principal
amount equal to the aggregate principal amount of IDS Notes issued pursuant to
the exercise of the Exchange Warrant(s). ASLP will indemnify and hold the
Company harmless from any costs, expenses or other liabilities arising out of
any such redemption.
2. Shelf Registration.
2.1 Registration. The Company shall:
(a) not later than the first anniversary of the date hereof (the "Shelf
Filing Deadline"), cause to be filed a registration statement on Form S-3
(or any comparable or successor form) pursuant to Rule 415 under the
Securities Act, or if the Company is ineligible to use Form S-3, on another
appropriate form (the "Shelf Registration Statement"), which Shelf
Registration Statement shall provide for the issuance by the Company and
resales by Holders of all Registrable Securities and any other IDSs that
are issueable but otherwise would be unregistered under the Securities Act
held by Holders or others that have provided the information required
pursuant to the terms of Section 2.2 hereof;
(b) use its reasonable best efforts to cause the Shelf Registration
Statement to be declared effective by the Commission as promptly as
practicable after the first anniversary of the date hereof (the
"Effectiveness Target Date"); and
(c) use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended as required by
the provisions of Section 5(b) hereof to the extent necessary to ensure
that (x) it is available for resales by the Holders of Registrable
Securities entitled to the benefit of this Agreement and (y) conforms with
the requirements of this Agreement and the Securities Act and the rules and
regulations of the Commission promulgated thereunder as announced from time
to time for a period (the "Effectiveness Period") of:
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(1) two years following the Effectiveness Target Date; or
(2) such shorter period that will terminate when (x) all Registrable
Securities and Exchange Warrants have ceased to be outstanding
(whether as a result of redemption, repurchase and cancellation,
conversion or otherwise) or (y) all Registrable Securities registered
under the Shelf Registration Statement have been issued and resold.
2.2 Holder Information. No Holder may include any of its Registrable
Securities in any Registration Statement unless such Holder furnishes to the
Company in writing, prior to or on the 20th business day after receipt of a
request therefor, such information as the Company may reasonably request for use
in connection with the Registration Statement or the prospectus or preliminary
prospectus included therein and in any application to be filed with or under
state securities laws. In connection with all such requests for information from
Holders, the Company shall notify such Holders of the requirements set forth in
the preceding sentence.
3. Registrations Upon Request.
3.1 Requests by the Principal Holders. At any time after the six-month
anniversary of the date hereof, the Principal Holders shall each have the right
to request that the Company effect the registration under the Securities Act of
all or a portion of the Registrable Securities owned by, or subject to an
exercisable Exchange Warrant owned by, such Principal Holder, each such request
to specify the intended method or methods of disposition thereof; provided that
(i) each Principal Holder may make no more than four requests for registration,
one of which shall expire upon the Shelf Registration Statement being declared
effective and (ii) the aggregate market value (as determined in good faith by
the Board) of all Registrable Securities of the Principal Holders and all other
Holders requesting registration of Registrable Securities under Section 4 hereof
to be registered under the Securities Act in such offering exceeds $10 million
as of the date following the last day Holders may request to include Registrable
Securities in such offering under Section 4. Upon any such request, the Company
will promptly, but in any event within 10 days, give written notice of such
request to ASLP, which in turn will promptly notify all Holders of Registrable
Securities and Exchange Warrants, and thereupon the Company will, subject to
Section 3.5, use its reasonable best efforts to effect the prompt registration
under the Securities Act of:
(a) the Registrable Securities which the Company has been so requested
to register by the requesting Principal Holders, and
(b) all other Registrable Securities which the Company has been
requested to register by the Holders thereof by written request given to the
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Company by such Holders within 15 days after the giving of such
written notice by the Company to such Holders,
all to the extent required to permit the disposition of the Registrable
Securities so to be registered in accordance with the intended method or methods
of disposition of the requesting Principal Holders. If a Principal Holder
requests registration of Registrable Securities pursuant to this Section 3.1,
any other Principal Holder that wants to participate in such registration may do
so pursuant to either Section 4 hereof or by using one of its requests for
registration provided in this Section 3.1, in which case such Principal Holder
shall be treated as a requesting Principal Holder for all purposes hereof.
3.2 Exceptions Where Shelf Registration Statement Is Effective.
Notwithstanding the provisions of Section 3.1, in the event that a Shelf
Registration Statement is effective when a Principal Holder makes a request for
registration under Section 3.1, the Company shall not be required to separately
register any Registrable Securities, and such request shall be deemed to be a
request that the Company cooperate in effecting an underwritten offering of the
Registrable Securities pursuant to the Shelf Registration Statement. Upon such
request, the Company shall cooperate in such underwriting in accordance with the
provisions of this Agreement. Any such request shall count against the number of
such requests permitted to be made by such Principal Holder pursuant to Section
3.1.
3.3 Registration Statement Form. A registration requested pursuant to
Section 3.1 shall be effected by the filing of a registration statement on a
form selected by the Company and agreed to by the Requesting Holder or Holders
(such registration statement, a "Demand Registration Statement"). The Company
shall prepare, and as soon as practicable, but in any event within 60 days
following a request made pursuant to Section 3.1, file with the Commission, a
Demand Registration Statement with respect to such Registrable Securities (both
with respect to their initial issuance to Holders, if required, and to their
resales), make all required filings with the NASD and use its reasonable best
efforts to cause such Demand Registration Statement to become effective as soon
as practicable.
3.4 Expenses. The Company shall pay all Registration Expenses in
connection with any registration requested under Section 3.1; provided that each
seller of Registrable Securities shall pay all Registration Expenses to the
extent required to be paid by such seller under applicable law and all
underwriting discounts and commissions and transfer taxes, if any.
3.5 Priority in Demand Registrations. If a registration pursuant to
Section 3.1 involves an underwritten offering, and the managing underwriter (or,
in the case of an offering which is not underwritten, a nationally recognized
investment banking firm) shall advise the Company in writing (with a copy to
each Person requesting registration
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of Registrable Securities) that, in its opinion, the number of securities
requested or otherwise proposed to be included in such registration exceeds the
number which can be sold in such offering without materially and adversely
affecting the offering price, the Company shall include in such registration, to
the extent of the number which the Company is so advised can be sold in such
offering without such material adverse effect, first, the Registrable Securities
of the Principal Holders requesting registration, on a pro rata basis (based on
the number of shares of Registrable Securities owned by, or subject to an
exercisable Exchange Warrant owned by, each such Holder), and second, the
securities requested to be included in such registration by other Persons or
proposed to be included in such registration by the Company, in such amounts and
proportions as the Company may determine. Notwithstanding the foregoing, any
requesting Principal Holder may withdraw such Holder's request for registration
upon learning of such required proration, in which case none of such Holder's
Registrable Securities will be included in such registration or offering, and,
if the proration resulting in such withdrawal would result in a reduction of 30%
or more of the Registrable Securities that such Principal Holder initially
requested be included in the Demand Registration Statement, such Holder will be
deemed not to have used one of its requests for registration provided for in
Section 3.1.
4. Incidental Registrations. If the Company at any time proposes to
register any IDSs or ASC Common Stock under the Securities Act for its own
account, the account of any other Person or Persons or pursuant to Section 3.1
hereof (other than pursuant to a registration on Form S-4 or S-8 or any
successor form), then the Company shall promptly, but in any event within 10
days of its decision to register securities, give written notice to all Holders
of Registrable Securities and Exchange Warrants regarding such proposed
registration. Upon the written request of any such Holder made within 15 days
after the receipt of any such notice (which request shall specify the number of
Registrable Securities intended to be disposed of by such Holder and the
intended method or methods of disposition thereof), the Company shall use its
reasonable best efforts to effect the registration under the Securities Act
(both with respect to their initial issuance to Holders, if required, and to
their resales) of such Registrable Securities on a pro rata basis in accordance
with such intended method or methods of disposition, provided that:
(a) if, at any time after giving written notice (pursuant to this
Section 4) of its intention to register IDSs or ASC Common Stock and prior
to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
register IDSs or ASC Common Stock, the Company may, at its election, give
written notice of such determination to each Holder of Registrable
Securities and, thereupon, shall not be obligated to register any
Registrable Securities in connection with such registration (but shall
nevertheless pay the Registration Expenses in connection therewith),
without prejudice, however, to the rights of such Holders that a
registration be effected under Section 3.1;
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(b) if in connection with a registration pursuant to this Section 4,
the managing underwriter of such registration (or, in the case of an
offering that is not underwritten, a nationally recognized investment
banking firm) shall advise the Company in writing (with a copy to each
holder of Registrable Securities requesting registration thereof) that the
number of securities requested and otherwise proposed to be included in
such registration exceeds the number which can be sold in such offering
without materially and adversely affecting the offering price of the
securities being sold in such registration, then in the case of any
registration pursuant to this Section 4, the Company shall include in such
registration to the extent of the number which the Company is so advised
can be sold in such offering without such material adverse effect:
(1) if the registration is a primary registration on behalf of
the Company, first, the securities proposed to be included by the
Company and second, the Registrable Securities requested to be
included in such registration by the Holders participating in such
registration and the securities proposed to be registered by another
Person or Persons, each pro rata in accordance with the number of
Registrable Securities so requested to be included and the number of
securities proposed to be registered by any other Person or Persons;
(2) if the registration is a secondary registration on behalf of
a Person or Persons other than a Holder participating in such
registration, first, the securities proposed to be registered by such
other Person or Persons, and second, the Registrable Securities
requested to be included in such registration by the Holders
participating in such registration, on a pro rata basis based on the
number of Registrable Securities so requested to be included by each
such Holder; and
(3) if the registration is made pursuant to Section 3.1, in
accordance with Section 3.5; and
(c) in addition to the foregoing, in the event the Company proposes to
register ASC Common Stock alone, the Company shall use its reasonable best
efforts to include in such registration IDSs or IDS Notes to be issued to
the requesting Holders as provided in this Section 4 but the managing
underwriter of such registration may exclude such IDSs or IDS Notes from
the sale of ASC Common Stock to the public.
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The Company shall pay all Registration Expenses in connection with
each registration of Registrable Securities requested pursuant to this Section
4, provided that each seller of Registrable Securities shall pay all
Registration Expenses to the extent required to be paid by such seller under
applicable law and all underwriting discounts and commissions and transfer
taxes, if any. No registration effected under this Section 4 shall relieve the
Company from its obligation to effect registrations under Section 3.1.
5. Registration Procedures. In connection with any Registration Statement
and any prospectus included therein required to permit the issuance or resale of
Registrable Securities, or whenever the Company is required to use its
reasonable best efforts to effect the registration of any Registrable Securities
under the Securities Act pursuant to Section 3.1, the Company shall promptly:
(a) Subject to any notice by the Company in accordance with this Section 5
of the existence of any fact or event of the kind described below, use its
reasonable best efforts to keep the Shelf Registration Statement continuously
effective during the Effectiveness Period. Subject to the following sentence,
upon the occurrence of any event that would cause any Registration Statement or
the prospectus contained therein (i) to contain a material misstatement or
omission or (ii) not be effective and usable for resale of Registrable
Securities (except, in the case of the Shelf Registration Statement, at any time
after the expiration of the Effectiveness Period), the Company shall file
promptly an appropriate amendment to the Registration Statement or a report
filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, in the case of clause (i), correcting any such misstatement or
omission, and, in the case of either clause (i) or (ii), use its reasonable best
efforts to cause any such amendment to be declared effective and the
Registration Statement and the related prospectus to become usable for their
intended purposes as soon as practicable thereafter. Notwithstanding the
foregoing, the Company may suspend the effectiveness of any Registration
Statement by written notice to the Holders for a period not to exceed an
aggregate of 45 days in any 90-day period (each such period, a "Suspension
Period") if:
(x) an event occurs and is continuing as a result of which the
Registration Statement would, in the Company's reasonable judgment, 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
(y) in the good faith judgment of the Board, the disclosure of such
event at such time would or is likely to adversely affect the Company;
provided that in the event the disclosure relates to a previously undisclosed
proposed or pending material business transaction, the disclosure of which would
impede the Company's ability to consummate such transaction, the Company may
extend a
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Suspension Period from 45 days to 60 days; provided, however, that Suspension
Periods shall not exceed an aggregate of 180 days in any 360-day period.
(b) (i) Prepare and file with the Commission such amendments, including
post-effective amendments and supplements to the Registration Statement as may
be necessary to keep the Shelf Registration Statement effective during the
Effectiveness Period and any Demand Registration Statement continuously
effective as to the applicable Registrable Securities until the Selling Holder
or Holders have completed the distribution described in such Demand Registration
Statement, as the case may be; (ii) cause the related prospectus to be amended
or supplemented by any required prospectus supplement (including, among other
things, as a result of any change or changes after the effective date of
Registration Statement in the plan of distribution contemplated by the Holders),
and as so supplemented or amended to be filed pursuant to Rule 424 promulgated
under the Securities Act (or any similar provisions then in force); (iii)
respond as promptly as possible to any comments received from the Commission
with respect to each Registration Statement or any amendment thereto and as
promptly as possible provide the Selling Holders true and complete copies of all
correspondence from and to the Commission relating to any Registration
Statement, provided, however, that any information for which the Company
requests confidential treatment from the Commission shall be kept confidential
by the Holders, unless (w) disclosure of such information is required by court
or administrative order or is necessary to respond to inquiries of regulatory
authorities; (x) disclosure of such information, in the opinion of counsel to
such Holders, is required by law; (y) such information becomes generally
available to the public other than as a result of a disclosure or negligent
failure to safeguard by such Holders; or (z) such information becomes available
to such Holders from a source other than the Company and such source is not
known by such Holders to be bound by a confidentiality agreement with the
Company or ASLP; and (iv) comply in all material respects with the provisions of
the Securities Act and the Exchange Act with respect to the disposition of all
Registrable Securities covered by each Registration Statement in accordance with
the intended methods of disposition by the Selling Holders as set forth in the
Registration Statement as so amended or in such prospectus as so supplemented;
(c) (i) Furnish to the Selling Holders of Registrable Securities, their
counsel and any managing underwriters, at least five business days before filing
with the Commission copies of all such documents proposed to be filed, which
documents (other than those incorporated by reference) will be subject to the
review of such Selling Holders, their counsel and such managing underwriters,
and (ii) cause its officers and directors, counsel and independent certified
public accountants to respond to such inquiries as shall be necessary, in the
reasonable opinion of respective counsel to such Selling Holders and such
underwriters, to conduct a reasonable due diligence investigation within the
meaning of the Securities Act, provided that the Company shall not file any
Registration Statement or any amendment or post-effective amendment or
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supplement to such Registration Statement or related prospectus to which such
counsel shall have reasonably objected on the grounds that such Registration
Statement, amendment, supplement, or prospectus does not comply (explaining why)
in all material respects with the requirements of the Securities Act or in all
material respects with the requirements of the Securities Act or of the rules or
regulations thereunder;
(d) Notify the Selling Holders of Registrable Securities their counsel and
any managing underwriters as promptly as possible (and in the case of (i),
below, at least five Business Days prior to such filing):
(i) when a prospectus or any prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed;
(ii) when the Commission notifies the Company whether there will be a
"review" of a Registration Statement and whenever the Commission comments
in writing on such Registration Statement;
(iii) with respect to each Registration Statement or any
post-effective amendment, when the same has become effective;
(iv) of any request by the Commission or any other Federal or state
governmental authority for amendments or supplements to each Registration
Statement or related prospectus or for additional information;
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of each Registration Statement covering any or all of the
Registrable Securities or the initiation of any proceedings for that
purpose;
(vi) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any
of the Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose; and
(vii) of the occurrence of any event that makes any statement made in
any Registration Statement or prospectus included therein or any document
incorporated or deemed to be incorporated therein by reference untrue in
any material respect or that requires any revisions to such Registration
Statement, prospectus or other documents so that, in the case of the
Registration Statement or the prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
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(e) Use its reasonable best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of (x) any order suspending the effectiveness of
any Registration Statement or (y) any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction, at the earliest practicable moment;
(f) If requested by any managing underwriter of Registrable Securities to
be sold in connection with an underwritten offering, (x) promptly incorporate in
a prospectus supplement or post-effective amendment to the Registration
Statement such information as the Company reasonably agrees should be included
therein and (y) make all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such prospectus supplement or
post-effective amendment; provided, however, that the Company shall not be
required to take any action pursuant to this Section 5(f) that would, in the
opinion of counsel for the Company violate applicable law or not be required to
be taken by applicable securities laws and be detrimental to the business
prospects of the Company;
(g) Furnish to each Selling Holder of Registrable Securities, their
counsel and any managing underwriters, without charge, at least one conformed
copy of each Registration Statement (including the Shelf Registration Statement)
and each amendment thereto, including financial statements and schedules, all
documents incorporated or deemed to be incorporated therein by reference, and
all exhibits to the extent requested by such Person (including those previously
furnished or incorporated by reference) promptly after the filing of such
documents with the Commission;
(h) Promptly deliver to each Selling Holder of Registrable Securities
their counsel, and any underwriters, without charge, as many copies of the
prospectus or prospectuses (including each form of prospectus) and each
amendment or supplement thereto as such Persons may reasonably request;
(i) Use its reasonable best efforts to register or qualify or cooperate
with the selling Holders, any underwriters and their counsel in connection with
the registration or qualification (or exemption from such 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 Selling Holder or underwriter requests in writing, to keep each such
registration or qualification (or exemption therefrom) effective until the
Selling Holder or Holders have completed the distribution of such Registrable
Securities and to do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by a Registration Statement; provided, however, that the Company shall
not be required to qualify generally to do business in any jurisdiction where it
is not then so qualified or to take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject or
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subject the Company to any material tax in any such jurisdiction where it is not
then so subject;
(j) Cooperate with the Selling Holders and any managing underwriters to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold pursuant to a Registration Statement, which
certificates shall be free, to the extent permitted by applicable law, of all
restrictive legends, and to enable such Registrable Securities to be in such
denominations and registered in such names as any such managing underwriters or
selling Holders may request at least two business days prior to any sale of
Registrable Securities pursuant to such Registration Statement;
(k) Upon the occurrence of any event contemplated by Section 5(d)(vii), as
promptly as reasonably practicable and subject to the provisions of this Section
5, prepare a supplement or amendment, including a post-effective amendment, to
the Registration Statement or a supplement to the related prospectus or any
document incorporated or deemed to be incorporated therein by reference, and
file any other document required to be filed in connection therewith so that, as
thereafter delivered, neither the Registration Statement nor such prospectus
will 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,
in light of the circumstances under which they were made, not misleading;
(l) Use its reasonable best efforts to cause all Registrable Securities
relating to each Registration Statement to be listed on the securities exchange,
quotation market or over-the-counter bulletin board on which similar securities
issued by the Company are then listed or quoted, provided that the Company shall
not be required to list or quote any Registrable Securities on any exchange or
quotation system in Canada or otherwise outside the United States;
(m) Enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings) and take
all such other actions in connection therewith (including those reasonably
requested by any managing underwriters in order to expedite or facilitate the
disposition of such Registrable Securities, and whether or not an underwriting
agreement is entered into) to:
(i) make such representations and warranties to such Selling Holders
and such underwriters as are customarily made by issuers to underwriters
in underwritten public offerings, and confirm the same if and when
requested;
(ii) in the case of an underwritten offering, obtain and deliver
copies thereof to the managing underwriters, if any, of opinions of
counsel to the Company and updates thereof addressed to each such
underwriter, in form, scope and substance reasonably satisfactory to any
such managing underwriters and counsel to the Selling Holders covering the
matters customarily covered in
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opinions requested in underwritten offerings and such other matters as may
be reasonably requested by such counsel and underwriters;
(iii) immediately prior to the effectiveness of each Demand
Registration Statement, and, in the case of an underwritten offering, at
the time of delivery of any Registrable Securities sold pursuant thereto,
obtain and deliver copies to the Selling Holders and the managing
underwriters, if any, of "comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
affiliate of the Company or of any business acquired by the Company for
which financial statements and financial data is, or is required to be,
included in any such Registration Statement), addressed to each Selling
Holder and each of the underwriters, if any, in form and substance as are
customary in connection with underwritten offerings; and
(iv) deliver such documents and certificates as may be reasonably
requested by the Selling Holders, their counsel and any managing
underwriters to evidence the continued validity of the representations and
warranties made pursuant to clause (i) above and to evidence compliance
with any customary conditions contained in the underwriting agreement or
other agreement entered into by the Company;
(n) Comply in all material respects with all applicable rules and
regulations of the Commission and make generally available to its security
holders an earnings statement covering a period of twelve months beginning
within three months 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;
(o) Make available executive officers of the Company for participation in
a reasonable number of "road show" and other investor presentations requested by
the Holders selling Registrable Securities in an underwritten offering;
(p) Make available for inspection by the selling Holders, any
representative of such Holders, any underwriter participating in any disposition
of Registrable Securities, and any attorney or accountant retained by such
selling Holder or underwriters, at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, and cause the
officers, directors, agents and employees of the Company and its subsidiaries to
supply all information in each case reasonably requested by any such Holder,
representative, underwriter, attorney or accountant in connection with each
Registration Statement; provided, however, that any information that is
determined in good faith by the Company in writing to be of a confidential
nature at the time of delivery of such information shall be kept confidential by
such Persons, unless (i) disclosure of
12
such information is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities; (ii) disclosure of such
information, in the opinion of counsel to such Person, is required by law; (iii)
such information becomes generally available to the public other than as a
result of a disclosure or negligent failure to safeguard by such Person; or (iv)
such information becomes available to such Person from a source other than the
Company and such source is not known by such Person to be bound by a
confidentiality agreement with the Company;
(q) Use its reasonable best efforts to cause the Registrable Securities
covered by any Registration Statement to be registered with or approved by such
other U.S. governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof or the underwriter(s), if any, to consummate the
disposition of such Registrable Securities; and
(r) Use its reasonable best efforts to take all other steps necessary to
effect the registration of such Registrable Securities contemplated hereby.
As a condition to its registration of Registrable Securities of any
prospective Selling Holder, the Company may require such Selling Holder of any
Registrable Securities as to which any registration is being effected to execute
powers-of-attorney, custody arrangements and other customary agreements
appropriate to facilitate the offering and to furnish to the Company such
information regarding such Selling Holder, its ownership of Registrable
Securities and the disposition of such Registrable Securities as the Company may
from time to time reasonably request in writing and as shall be required by law
in connection therewith. Each such Holder agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such holder not materially
misleading.
The Company agrees not to file or make any amendment to any
Registration Statement with respect to any Registrable Securities, or any
amendment of or supplement to any related prospectus, that refers to any Holder
of Registrable Securities or otherwise identifies any Holder of Registrable
Securities as the holder of any Registrable Securities without the consent of
such Holder, such consent not to be unreasonably withheld or delayed, unless
such disclosure is required by law.
By acquisition of Registrable Securities, each Holder of such
Registrable Securities shall be deemed to have agreed that upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 5(a) above, such Holder will promptly discontinue such Holder's
disposition of Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 5(a) above. If
so directed by the Company, each Holder of Registrable
13
Securities will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, in such holder's possession of the prospectus
covering such Registrable Securities at the time of receipt of such notice. In
the event that the Company shall give any such notice, the period mentioned in
Section 5(a) above shall be extended by the number of days during the period
from and including the date of the giving of such notice to and including the
date when each seller of any Registrable Securities covered by such Registration
Statement shall have received the copies of the supplemented or amended
prospectus contemplated by Section 5(a) above.
Upon the effectiveness of the Shelf Registration Statement, each
Holder shall notify the Company at least three business days prior to any
intended distribution of Registrable Securities pursuant to the Shelf
Registration Statement. Each Holder agrees to hold any communication by the
Company in response to such a notice of sale in confidence.
6. Underwritten Offerings.
6.1 Underwriting Agreement. If requested by the underwriters for any
underwritten offering pursuant to a registration requested under Section 3.1 or
4, the Company shall enter into an underwriting agreement with the underwriters
for such offering, such agreement to be reasonably satisfactory in substance and
form to the underwriters and to the Company. Any such underwriting agreement
shall contain such representations and warranties by the Company and such other
terms and provisions as are customarily contained in agreements of this type,
including, without limitation, indemnities to the effect and to the extent
provided in Section 9. Each Holder of Registrable Securities to be distributed
by such underwriter who owns (or will own upon exercise of an exercisable
Exchange Warrant) 1% or more of the Registrable Securities being sold pursuant
to such offering shall be a party to such underwriting agreement and may, at
such Holder's option, require that any or all of the representations and
warranties by, and the agreements on the part of, the Company to and for the
benefit of such underwriters be made to and for the benefit of such Holder of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement shall also be
conditions precedent to the obligations of such Holder of Registrable
Securities. The Holders in their capacities as stockholders and/or controlling
persons (but not in their capacities as managers of the Company) shall not be
required by any underwriting agreement to make any representations or warranties
to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such Holder, the ownership
of such Holder's Registrable Securities and such Holder's intended method or
methods of disposition and any other representation required by law or to
furnish any indemnity to any Person which is broader than the indemnity
furnished by such holder pursuant to Section 9.2.
14
6.2 Selection of Underwriters. If the Company at any time proposes to
register any of its securities under the Securities Act for sale for its own
account pursuant to an underwritten offering, the Company will have the right to
select the managing underwriter (which shall be of nationally recognized
standing) to administer the offering. If any of the Registrable Securities
covered by the Shelf Registration Statement are to be sold pursuant to an
underwritten offering in which the Company is not registering any of its
securities for sale for its account, the Selling Holders which hold or will hold
at least a majority in value or principal amount of the Registrable Securities
to be included in such offering will have the right to select the managing
underwriter (which shall be of nationally recognized standing and reasonably
acceptable to the Company).
7. Holdback Agreements.
(a) If and whenever the Company proposes to register any of its equity
securities under the Securities Act for its own account (other than on Form S-4
or S-8 or any successor form) or is required to use its reasonable best efforts
to effect the registration of any Registrable Securities under the Securities
Act pursuant to Section 3.1 or 4, each Holder of Registrable Securities agrees
by acquisition of such Registrable Securities not to effect any sale or
distribution, including any sale pursuant to Rule 144 under the Securities Act,
or to request registration under Section 3.1 of any Registrable Securities
within seven days prior to and 90 days (unless the managing underwriter for any
underwritten offering may agree to a shorter period) after the effective date of
the registration statement relating to such registration (the "Trigger Date"),
except as part of such registration or unless, in the case of a sale or
distribution not involving a public offering, the transferee agrees in writing
to be subject to this Section 7, even if such Registrable Securities cease to be
Registrable Securities upon such transfer; provided that, with respect to the
Shelf Registration Statement, the Trigger Date shall be the pricing of any
offering made under such Registration Statement.
(b) The Company agrees not to effect any public sale or distribution of
its equity securities or securities convertible into or exchangeable or
exercisable for any of such securities (including IDSs) within seven days prior
to and 90 days (or such shorter period as the managing underwriter for any
underwritten offering may agree) after the Trigger Date with respect to any
registration statement filed pursuant to Section 3.1 (except (i) (including any
consent or waiver granted thereunder) as part of such registration, (ii) as
permitted by any related underwriting agreement, (iii) pursuant to an employee
equity compensation plan, or (iv) pursuant to a registration on Form S-4 or S-8
or any successor form); provided that, with respect to the Shelf Registration
Statement, the Trigger Date shall be the pricing of any offering made under such
Registration Statement.
15
8. [RESERVED]
9. Indemnification.
9.1 Indemnification by the Company.
(a) The Company agrees to indemnify to the fullest extent permitted by
law, each Selling Holder of Registrable Securities, each person who controls any
such Selling Holder (within the meaning of either the Securities Act or the
Exchange Act), and their respective directors and officers against any and all
losses, claims, damages, liabilities (or actions or proceedings in respect
thereof) and expenses (including reasonable attorneys' fees) which arise out of
or are based upon any untrue or alleged untrue statement of material fact
contained in any Registration Statement, prospectus or preliminary prospectus
(each as amended and/or supplemented, if the Company shall have furnished any
amendments or supplements thereto), or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading; provided that the
Company shall not be required to indemnify such Selling Holder, such controlling
persons or their respective officers or directors for any losses, claims,
damages, liabilities (or actions or proceedings in respect thereof) or expenses
that arise out of or are based upon (i) any such untrue statement or omission if
such untrue statement or omission is made in reliance on and conformity with any
information with respect to such Selling Holder, furnished in writing to the
Company by such Selling Holder expressly for use therein; arise (ii) an untrue
or alleged untrue statement or omission or alleged omission made in any
preliminary prospectus if (x) in the case of any offering other than an
underwritten offering, having previously been furnished by or on behalf of the
Company with copies of the final prospectus, such Selling Holder failed to send
or deliver a copy of the final prospectus with or prior to the delivery of
written confirmation of the sale of the Registrable Securities by the Selling
Holder to the person asserting the claim from which such loss, claim, damage,
liability (or actions or proceedings in respect thereof) or expense arises and
(y) the final prospectus would have corrected in all material respects such
untrue statement or alleged untrue statement or omission or alleged omission;
(iii) an untrue statement or alleged untrue statement, omission or alleged
omission made in the prospectus if (x) such untrue statement or alleged untrue
statement, omission or alleged omission is corrected in all material respects in
an amendment or supplement to the prospectus and (y) in the case of any offering
other than an underwritten offering, having previously been furnished by or on
behalf of the Company with copies of the prospectus as so amended or
supplemented, such Selling Holder thereafter fails to deliver such prospectus as
so amended or supplemented, prior to or concurrently with the sale of
Registrable Securities; and (iv) an untrue statement or alleged untrue
statement, omission or alleged omission contained in a prospectus, a preliminary
prospectus or any amendment or supplement thereto used by
16
such Selling Holder during a Suspension Period after such time as the Company
has advised such Selling Holder in writing that a Suspension Period is in
effect.
(b) In connection with an underwritten offering, the Company agrees to
indemnify each underwriter thereof, the officers and directors of such
underwriter, and each person who controls such underwriter (within the meaning
of either the Securities Act or Exchange Act) to the same extent as provided
above with respect to the indemnification of Selling Holders; provided that such
underwriter agrees to indemnify the Company to the same extent as provided below
with respect to the indemnification of the Company by such Selling Holders.
9.2 Indemnification by Selling Holders. In connection with any
registration in which any seller is participating, such Selling Holder will
furnish to the Company in writing such information with respect to it and its
Affiliates as the Company reasonably requests for use in connection with any
such registration, prospectus, or preliminary prospectus. Such Selling Holder
agrees to indemnify each of the Company, their respective directors and officers
who sign the Registration Statement, each person, if any, who controls (within
the meaning of either the Securities Act or of the Exchange Act) the Company,
each other Selling Holder and any prospective underwriters, as the case may be,
and any of their respective affiliates, general partners, officers, employees,
agents and controlling persons, to the same extent as the foregoing indemnity
from the Company to such Selling Holder, with respect to (i) information
relating to such seller furnished to the Company in writing by such Selling
Holder expressly for use in the Registration Statement, the prospectus, any
amendment or supplement thereto, or any preliminary prospectus and (ii) the use
of any prospectus (or any amendment or supplement thereto or any preliminary
prospectus) by such Selling Holder during a Suspension Period provided, however,
that the liability of such Selling Holder under this Section 9.2 shall be
limited to the amount of net proceeds received by such Selling Holder in the
offering giving rise to such liability.
9.3 Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to Section 9.1 or
Section 9.2, such person (hereinafter called the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought
(hereinafter called the "indemnifying party") in writing and the indemnifying
party, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such
17
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and the indemnified party shall have been advised by
counsel that representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties, and that all such fees and expenses
shall be reimbursed as they are incurred. In the case of any such separate firm
for the indemnified parties, such firm shall be designated in writing by all of
the indemnified parties. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent (which consent
will not be unreasonably withheld), but if settled with such consent or if there
be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the third sentence of this Section 9.3, the indemnifying party agrees that
the indemnifying party shall be liable for any settlement of any proceeding
effected without the indemnifying party's written consent if (i) such settlement
is entered into more than 30 days after receipt by such indemnifying party of
the aforesaid request and (ii) such indemnifying party shall not either have
reimbursed the indemnified party in accordance with such request or reasonably
objected in writing, on the basis of the standards set forth herein, to the
propriety of such reimbursement prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes as an unconditional term thereof a release of such indemnified party,
from all liability on claims that are the subject matter of such proceeding.
9.4 Contribution. If the indemnification provided for in this Section 9
from the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to in
this Section 9, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified parties, and the parties'
18
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the
loses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 9.3, any
legal or other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 9.4 were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 9.4, no Selling Holder shall be
required to contribute any amount in excess of the amount of the total net
proceeds received by such Holder from sales of the Registrable Securities sold
by such Holder pursuant to the offering that gave rise to such losses, claims,
damages, liabilities or expenses. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
If indemnification is available under this Section 9, the indemnifying
parties shall indemnify each indemnified party to the full extent provided in
Sections 9.1 and 9.2 without regard to the relative fault of said indemnifying
party, or indemnified party or any other equitable consideration provided for in
this Section 9.4.
10. Definitions. For purposes of this Agreement, the following terms shall
have the following respective meanings:
Affiliate: a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the Person specified.
Agreement: This Exchange and Registration Rights Agreement, as it may
be amended, restated or supplemented.
Amended Securityholders Agreement: Second Amended and Restated
Securityholders Agreement, dated as of __________, 2003, among ASLP and certain
investors in ASLP, as amended, restated or supplemented from time to time.
ASC Common Stock: as defined in Section 1.1.
ASLP: as defined in the introductory sentence of this Agreement.
ASLP Partnership Agreement: Limited Partnership agreement of ASLP,
dated as of January 28, 2000, as amended, restated or supplemented from time to
time.
19
ASLP Partnership Units: the partnership or other equity units of ASLP.
Board: the board of directors of the Company.
Commission: the Securities and Exchange Commission.
Company: as defined in the introductory sentence of this Agreement.
Demand Registration Statement: as defined in Section 3.3.
Effectiveness Period: as defined in Section 2.1(c).
Effectiveness Target Date: as defined in Section 2.1(b).
Exchange Act: the Securities Exchange Act of 1934, as amended, or any
successor federal statute, and the rules and regulations thereunder which shall
be in effect at the time.
Exchange Warrants: as defined in Recital B.
Guarantors: at any time, those subsidiaries of the Company that are,
at such time, guaranteeing the IDS Notes.
Holder: a holder of an Exchange Warrant or any Registrable Securities.
Holdings: as defined in the introductory sentence of this Agreement.
Holdings Notes: [____%] Senior Notes due 2013 issued by Holdings in
the initial aggregate principal amount of $___.
Holdings Partnership Units: the partnership units issued by Holdings.
IDS Notes: as defined in Section 1.1.
IDSs: as defined in Recital A.
indemnified party: as defined in Section 9.3.
indemnifying party: as defined in Section 9.3.
NASD: National Association of Securities Dealers, Inc.
NASDAQ: the Nasdaq National Market.
20
Old Securityholders Agreement: the Amended and Restated
Securityholders Agreement, dated as of October 4, 2002, among ASLP and certain
investors in ASLP.
Permitted Transferee: as defined in Section 11.2.
Person: an individual, corporation, partnership, limited liability
company, joint venture, association, trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
Principal Holder: each of Bodal, the Centre Entities (which shall be
treated as a single Holder for purposes of this definition) and Coastal (each as
defined in the Amended Securityholders Agreement).
Registrable Securities: any shares of ASC Common Stock, any IDS Notes,
any IDSs into which they have been combined, any guarantees of any IDS Notes
issued by the Guarantors and any other such securities beneficially owned
(within the meaning of Rule 13d-3 of the Exchange Act) by the Holders and the
Permitted Transferees at any time, including without limitation, any of the
foregoing issued upon the exercise of an Exchange Warrant. As to any particular
IDSs, shares of ASC Common Stock and IDS Notes (and the related guarantees)
beneficially owned by a Holder or a Permitted Transferee, such securities shall
cease to be Registrable Securities when (i) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) a registration statement on Form S-8 with
respect to the sale of such securities shall have become effective under the
Securities Act, (iii) they shall have been sold to the public pursuant to Rule
144 under the Securities Act, (iv) they shall have been otherwise transferred
other than to a Permitted Transferee and subsequent disposition of them shall
not require registration or qualification of them under the Securities Act or
any similar state law then in force or (v) they shall have ceased to be
outstanding. Any and all other Securities which may be issued in respect of, in
exchange for, or in substitution for any Registrable Securities, whether by
reason of any stock split, stock dividend, reverse stock split,
recapitalization, combination or otherwise, shall also be "Registrable
Securities" hereunder.
Registration Expenses: all expenses incident to the Company's
performance of or compliance with any registration pursuant to this Agreement,
including, without limitation, (i) registration, filing and NASD fees, (ii) fees
and expenses of complying with securities or blue sky laws, (iii) fees and
expenses associated with listing securities on an exchange or NASDAQ, (iv) word
processing, duplicating and printing expenses, (v) messenger and delivery
expenses, (vi) transfer agents', trustees', depositories', registrars' and
fiscal agents' fees, (vii) fees and disbursements of counsel for the Company and
of its independent public accountants, including the expenses of any
21
special audits or "comfort" letters, (viii) premiums and other costs of policies
of insurance against liabilities arising out of the public offering of the
Registrable Securities being registered (if the Company elects to obtain any
such insurance), (ix) reasonable fees and disbursements of any one counsel
retained by the sellers of Registrable Securities, (x) any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities and (xi) reasonable costs and expenses incurred for presentations to
or meetings with prospective investors in connection with the offer or sale of
Registrable Securities in a public offering thereof. Notwithstanding the
foregoing, Registration Expenses shall not include (A) except as otherwise
specifically provided in this Agreement, fees and disbursements of counsel to
one or more selling Holders, and (B) transfer taxes, and underwriting discounts
or commissions and brokerage fees for the sale of Registrable Securities.
Registration Statement: the Shelf Registration Statement or any Demand
Registration Statement.
Securities Act: the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations thereunder which shall
be in effect at the time.
Selling Holders: Holders selling Registrable Securities pursuant to a
Registration Statement.
Shelf Filing Deadline: as defined in Section 2.1(a).
Shelf Registration Statement: as defined in Section 2.1(a).
Suspension Period: as defined in Section 5(a).
Trigger Date: as defined in Section 7(a).
11. Miscellaneous.
11.1 Rule 144, etc. If the Company shall have filed a registration
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act
relating to any class of equity securities, the Company shall file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the Commission thereunder, and shall take such
further action as any Holder of Registrable Securities may reasonably request,
all to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
as such rule may be amended from time to time, or (b) any successor rule or
regulation hereafter adopted by the Commission. Upon the request of any Holder
of Registrable Securities,
22
the Company shall deliver to such Holder a written statement as to whether it
has complied with such requirements.
11.2 Successors, Assigns, Third-Party Beneficiaries and Transferees. This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their respective permitted successors and assigns under this Section 11.2. Each
Holder (including its permitted successors and assigns) is a third-party
beneficiary of this Agreement. The provisions of this Agreement which are for
the benefit of a Holder of Registrable Securities shall be for the benefit of
and enforceable by any transferee of such Registrable Securities, provided that
such transferee acquires such Registrable Securities in accordance with all of
the terms of the Amended Securityholders Agreement and pursuant to an express
assignment from the transferor, and further provided that such transferee
executes a joinder agreement agreeing to be bound by all of the transferor's
obligations hereunder, including, without limitation, Section 5 hereof, copies
of which shall have been delivered to the Company (each such transferee, a
"Permitted Transferee").
11.3 Entire Agreement. This Agreement, the Amended Securityholders
Agreement and the ASLP Partnership Agreement and any agreements entered into in
connection with any of the foregoing constitute the entire agreement and the
understanding of the parties hereto with the matters referred to herein. This
Agreement and the agreements referred to in the preceding sentence supersede all
prior agreements and understandings between the parties with respect to such
matters.
11.4 Amendment and Modification. This Agreement may be amended, modified
or supplemented by written agreement of all parties hereto.
11.5 Certain Operating Restrictions, etc.
(a) The Company hereby agrees that, without the prior written consent of
ASLP, it will (i) refrain from engaging in any activities other than those
incidental to issuing IDSs, Common Stock and IDS Notes (including performing
obligations under the indenture governing the IDS Notes), owning Holdings Notes
and Holdings Partnership Units (or any successor securities), and other
activities contemplated hereby; (ii) conduct all operational activities related
to the Business (as defined in the Amended Securityholders Agreement) through
Holdings and (iii) except under the terms of any employee benefit plan, refrain
from issuing any ASC Common Stock, IDS Notes or IDSs other than for cash. In the
event at any time the Company shall issue shares of ASC Common Stock, IDS Notes
or IDSs, as the case may be, for cash, the Company shall use the proceeds of any
such issuance, net of reasonable expenses, to purchase Holdings Partnership
Units and/or Holdings Notes (or other debt of Holdings), respectively.
(b) Without the prior written consent of the Company, ASLP will not incur
any material liabilities after the date hereof.
23
(c) ASLP acknowledges and agrees that the Company has been designated a
third party beneficiary of the Amended Securityholders Agreement and has all
rights to enforce the provisions thereof against the parties thereto, including,
without limitation, the provisions of Section 7.2 thereof, and that the
provisions of such Section may not be amended without the prior written consent
of the Company.
11.6 Governing Law. This Agreement and the rights and obligations of the
parties hereunder and the Persons subject hereto shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York,
without giving effect to the choice of law principles thereof.
11.7 Invalidity of Provision. The invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity or
enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that provision, in any
other jurisdiction.
11.8 Notices. All notices, requests, demands, letters, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage prepaid, (c)
sent by next-day or overnight mail or delivery or (d) sent by fax, as follows:
(i) If to the Company, to it at:
American Seafoods Corporation
Market Place Tower
2025 First Avenue
Suite 1200
Seattle, Washington 98121
Fax: 206-374-1516
Attention: Chief Financial Officer
with a copy to:
Debevoise & Plimpton
919 Third Avenue
New York, New York 10022
Attn: Andrew L. Bab
Telecopy: 212-909-6836
(ii) If to ASLP or to a Holder, to it as provided in the Amended
Securityholders Agreement.
24
or to such other Person or address as any party shall specify by notice in
writing to the Company. All such notices, requests, demands, letters, waivers
and other communications shall be deemed to have been received (w) if by
personal delivery on the day after such delivery, (x) if by certified or
registered mail, on the fifth business day after the mailing thereof, (y) if by
next-day or overnight mail or delivery, on the day delivered, or (z) if by fax,
on the day delivered, provided that such delivery is confirmed.
11.9 Headings; Execution in Counterparts. The headings and captions
contained herein are for convenience and shall not control or affect the meaning
or construction of any provision hereof. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and
which together shall constitute one and the same instrument.
11.10 Injunctive Relief. Each of the parties recognizes and agrees that
money damages may be insufficient and, therefore, in the event of a breach of
any provision of this Agreement the aggrieved party may elect to institute and
prosecute proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach of this Agreement. Such remedies
shall, however, be cumulative and not exclusive, and shall be in addition to any
other remedy which such party may have.
11.11 Term. This Agreement shall be effective as of the date hereof and
shall continue in effect thereafter until the earlier of (x) its termination by
the consent of the parties hereto or their respective successors in interest and
(y) the date on which no Registrable Securities or Exchange Warrants remain
outstanding.
11.12 Further Assurances. Subject to the specific terms of this Agreement,
each of the parties hereto shall make, execute, acknowledge and deliver such
other instruments and documents, and take all such other actions, as may be
reasonably required in order to effectuate the purposes of this Agreement and to
consummate the transactions contemplated hereby.
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IN WITNESS WHEREOF this Agreement has been signed by each of
the parties hereto, and shall be effective as of the date first above written.
AMERICAN SEAFOODS CORPORATION
By:______________________________
Name:
Title:
AMERICAN SEAFOODS, L.P.
By: ASC MANAGEMENT, INC.,
its General Partner
By:
---------------------------
Name:
Title:
AMERICAN SEAFOODS HOLDINGS, L.P.
By: AMERICAN SEAFOODS CORPORATION,
its general partner
By:
---------------------------
Name:
Title: