Exhibit 1.1
AMERICAN SEAFOODS CORPORATION
Income Deposit Securities
Each Representing One Share of Common Stock and $
Principal Amount of % Notes Due 2013
FORM OF UNDERWRITING AGREEMENT
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_________, 2003
CIBC World Markets Corp.
Credit Suisse First Boston LLC
UBS Securities LLC
as Representatives of the
Underwriters named in Schedule I hereto
c/o CIBC World Markets Corp.
417 5/th/ Avenue, 2/nd/ Floor
New York, New York 10016
Ladies and Gentlemen:
American Seafoods Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions contained herein, to sell to you
and the other underwriters named on Schedule I to this Agreement (the
"Underwriters"), for whom you are acting as Representatives (the
"Representatives"), an aggregate of Income Deposit Securities ("IDSs"),
representing shares of the Company's common stock, $0.01 par value per share
(the "Common Stock") and $ aggregate principal amount of the Company's %
Notes Due 2013 (the "Notes"). Each IDS represents one share of Common Stock
and $ principal amount of the Notes. The respective amounts of the aforesaid
IDSs (the "Firm Securities") to be purchased by each of the several Underwriters
are set forth opposite their names on Schedule I hereto. In addition, the
Company proposes to grant to the Underwriters an option to purchase up to an
additional IDSs (the "Option Securities") representing shares of Common
Stock and $ aggregate principal amount of Notes for the purpose of covering
over-allotments in connection with the sale of the Firm Securities. The Firm
Securities and the Option Securities are collectively called the "Offered
Securities." Unless the context otherwise requires, references to the "Firm
Securities," the "Option Securities" and the "Offered Securities" herein shall
constitute reference to the IDSs and to the shares of Common Stock (the "Common
Shares") and the Notes underlying such IDSs.
The Notes will be issued pursuant to an indenture to be dated as of the
Firm Securities Closing Date (as hereinafter defined) among the Company, each of
the Company's subsidiaries listed on Schedule IV hereto (the "Guarantors") and
Wells Fargo Bank Minnesota, National Association, as trustee (the "Trustee").
The Notes and the obligations of the Company under the Indenture will be
guaranteed on an unsecured subordinated basis by each of the Guarantors. The
Notes will be secured by a pledge (the "Pledge") of an intercompany note (the
"Intercompany
Note") issued by American Seafoods Holdings, L.P. ("Holdings") to the Company
and related guarantees (the "Intercompany Note Guarantees" and together with the
Intercompany Note, the "Collateral").
The Company and the Guarantors have prepared and filed in conformity with
the requirements of the United States Securities Act of 1933, as amended (the
"Securities Act"), and the published rules and regulations thereunder (the
"Rules") adopted by the United States Securities and Exchange Commission (the
"Commission") a Registration Statement (as hereinafter defined) on Form S-1 (No.
333-105499), including a preliminary prospectus relating to the Offered
Securities, and such amendments thereto as may have been required to the date of
this Agreement. Copies of such Registration Statement (including all amendments
thereto) and of the related Preliminary Prospectus (as hereinafter defined) have
heretofore been delivered by the Company to you. The term "Preliminary
Prospectus" means any preliminary prospectus included at any time as a part of
the Registration Statement or filed with the Commission by the Company pursuant
to Rule 424(a) of the Rules. The term "Registration Statement" as used in this
Agreement means the initial registration statement (including all exhibits and
financial schedules thereto), as amended at the time and on the date it becomes
effective (the "Effective Date"), including the information (if any) contained
in the form of final prospectus filed with the Commission pursuant to Rule
424(b) of the Rules and deemed to be part thereof at the time of effectiveness
pursuant to Rule 430A of the Rules. If the Company has filed an abbreviated
registration statement to register additional Offered Securities pursuant to
Rule 462(b) under the Rules (the "462(b) Registration Statement"), then any
reference herein to the Registration Statement shall also be deemed to include
such 462(b) Registration Statement. The term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement at the time of effectiveness or, if Rule 430A of the Rules is relied
on, the term Prospectus shall also include the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules.
The Company and each of the Guarantors understand that the Underwriters
propose to make a public offering of the Offered Securities in the United
States, as set forth in and pursuant to the Prospectus, as soon as possible
after the Effective Date and the date of this Agreement. The Company hereby
confirms that the Underwriters have been authorized by the Company to distribute
or cause to be distributed each Preliminary Prospectus in the United States and
are authorized by the Company to distribute the Prospectus (as from time to time
amended or supplemented if the Company furnishes amendments or supplements
thereto to the Underwriters) in the United States.
In connection with this offering, the Company will purchase a general
partnership interest in American Seafoods Holdings, L.P., a Delaware limited
partnership ("Holdings"), and the Company, Holdings and its subsidiaries and
American Seafoods, L.P., a Delaware limited partnership ("ASLP"), will
consummate certain restructuring and realignment transactions as described in
the Preliminary Prospectus under "Summary-The Transactions and Use of Proceeds"
and "Detailed Transaction Steps" (collectively, the "Related Transactions"). The
primary agreements relating to the Related Transactions are listed on Schedule
hereto (collectively, the "Related Transaction Documents."). The term
"subsidiary" as used in this Agreement shall mean any entity in which the
Company will have a majority ownership interest,
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whether directly or indirectly, and the term "Significant Subsidiary" shall mean
any entity which will be a significant subsidiary of the Company within the
meaning of Item 1-02 (w) of Regulation S-X under the Securities Act after the
consummation of the Related Transactions.
1. Sale, Purchase, Delivery and Payment for the Offered Securities. On
the basis of the representations, warranties and agreements contained in, and
subject to the terms and conditions of, this Agreement:
(a) The Company agrees to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at a purchase price of $ per IDS (the "Initial Price"), the number
of Firm Securities set forth opposite the name of such Underwriter under
the column "Number of Firm Securities to be Purchased from the Company" on
Schedule I to this Agreement, subject to adjustment in accordance with
Section 8 hereof.
(b) The Company hereby grants to the several Underwriters an option
to purchase, severally and not jointly, all or any part of the Option
Securities at the Initial Price. The number of Option Securities to be
purchased by each Underwriter shall be the same percentage (adjusted by the
Representatives to eliminate fractions) of the total number of Option
Securities to be purchased by the Underwriters as such Underwriter is
purchasing of the Firm Securities. Such option may be exercised only to
cover over-allotments in the sales of the Firm Securities by the
Underwriters and may be exercised in whole or in part at any time on or
before 12:00 noon, New York City time, on the business day before the Firm
Securities Closing Date (as defined below), and from time to time
thereafter within 30 days after the Firm Securities Closing Date, in each
case upon written, facsimile or telegraphic notice, or verbal or telephonic
notice confirmed by written, facsimile or telegraphic notice, by the
Representatives to the Company no later than 12:00 noon, New York City
time, on the business day before the Firm Securities Closing Date or at
least two business days before the Option Securities Closing Date (as
defined below), as the case may be, setting forth the number of Option
Securities to be purchased and the time and date (if other than the Firm
Securities Closing Date) of such purchase, which must be no later than five
business days after the date of such notice.
(c) Payment of the purchase price for, and delivery of certificates
for, the Firm Securities shall be made at the offices of CIBC World Markets
Corp., One World Financial Center, New York, New York 10281, at 10:00 a.m.,
New York City time, on the third business day following the date of this
Agreement or at such time on such other date, not later than ten (10)
business days after the date of this Agreement, as shall be agreed upon by
the Company and the Representatives (such time and date of delivery and
payment are called the "Firm Securities Closing Date"). In addition, in the
event that any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price, and delivery of the
certificates, for such Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by
the Representatives and the Company, on each date of delivery as specified
in the notice from the Representatives to the Company (such time and date
of delivery and payment are called the "Option Securities Closing Date").
The Firm Securities Closing Date and
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any Option Securities Closing Date are called, individually, a "Closing
Date" and, together, the "Closing Dates."
(d) Payment shall be made to the Company by wire transfer of
immediately available (same day) funds to the bank account designated by
the Company not less than 24 hours prior to the Closing Date against
delivery of the respective certificates to the Representatives for the
respective accounts of the Underwriters of certificates for the Offered
Securities to be purchased by them.
(e) Certificates evidencing the Offered Securities shall be
registered in such names and shall be in such denominations as the
Representatives shall request at least two full business days before the
Firm Securities Closing Date or, in the case of Option Securities, on the
day of notice of exercise of the option as described in Section 1(b) and
shall be delivered by or on behalf of the Company to the Underwriters
through the facilities of the Depository Trust Company ("DTC") for the
account of each of such Underwriters. The Company will cause the
certificates representing the Offered Securities to be made available for
checking and packaging, at such place as is designated by the
Representatives, on the full business day before the Firm Securities
Closing Date or the Option Securities Closing Date, as the case may be.
2. Representations and Warranties of the Company and the Guarantors. The
Company and each of the Guarantors, jointly and severally, represent and warrant
to each Underwriter as of the date hereof, as of the Firm Securities Closing
Date and as of each Option Securities Closing Date (if any), as follows:
(a) On the Effective Date, the Registration Statement complied, and
on the date of the Prospectus, the date any post-effective amendment to the
Registration Statement becomes effective, the date any supplement or
amendment to the Prospectus is filed with the Commission and each Closing
Date, the Registration Statement and the Prospectus (and any amendment
thereof or supplement thereto) will comply, in all material respects, with
the requirements of the Securities Act and the Rules. The Registration
Statement did not, as of the Effective Date, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and on the Effective Date and the other dates referred to above
neither the Registration Statement nor the Prospectus, nor any amendment
thereof or supplement thereto, will contain any untrue statement of a
material fact or will omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading. The Preliminary Prospectus as amended or supplemented complied
in all material respects with the applicable provisions of the Securities
Act and the Rules and did not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. Each Preliminary Prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering was
identical, in all material respects, to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T. If Rule 434 is
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used, the Company will comply with the requirements of Rule 434 and the
Prospectus shall not be "materially different," as such term is used in
Rule 434, from the Prospectus included in the Registration Statement at the
time it became effective. Notwithstanding the foregoing, none of the
representations and warranties in this paragraph 4(a) shall apply to
statements in, or omissions from, the Registration Statement or the
Prospectus made in reliance upon, and in conformity with, information
herein or otherwise furnished in writing by the Representatives on behalf
of the several Underwriters for use in the Registration Statement or the
Prospectus. With respect to the preceding sentence, the Company
acknowledges that the only information furnished in writing by the
Representatives on behalf of the several Underwriters for use in the
Registration Statement or the Prospectus are the statements contained in
the first and sixth paragraphs under the caption "Underwriting" in the
Prospectus.
(b) The Registration Statement is effective under the Securities Act
and no stop order preventing or suspending the effectiveness of the
Registration Statement or suspending or preventing the use of the
Prospectus has been issued by the Commission and, to the knowledge of the
Company, no proceedings for that purpose have been instituted or are
threatened under the Securities Act. Any required filing of the Prospectus
and any supplement thereto pursuant to Rule 424(b) of the Rules has been or
will be made in the manner and within the time period required by such Rule
424(b).
(c) The financial statements of the Company, Holdings, and its
consolidated subsidiaries and Southern Pride Catfish Company Inc.,
("Southern Pride") (including all notes and schedules thereto) included in
the Registration Statement and Prospectus present fairly in all material
respects the financial position of the Company, Holdings and its
consolidated subsidiaries and Southern Pride at the respective dates
indicated and the income statements, statements of members' interest
(deficit) and comprehensive income (loss) and statements of cash flows of
Holdings and its consolidated subsidiaries and the statements of income,
stockholder's equity and cash flows of Southern Pride for the periods
specified; and such financial statements and related schedules and notes
thereto, and the unaudited financial information filed with the Commission
as part of the Registration Statement, have been prepared in conformity
with generally accepted accounting principles in the United States ("US
GAAP") consistently applied throughout the periods involved, except as
described therein. The summary and selected financial data included in the
Prospectus present fairly in all material respects the information shown
therein as at the respective dates and for the respective periods specified
and have been presented on a basis consistent with the consolidated
financial statements set forth in the Prospectus and other financial
information. The pro forma financial statements and the related notes
thereto included in the Registration Statement and the Prospectus present
fairly in all material respects the information shown therein, have been
prepared in all material respects in accordance with the Commission's rules
and guidelines with respect to pro forma financial information and have
been properly compiled on the bases described therein, and the assumptions
used in the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
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(d) KPMG LLP, whose reports are filed with the Commission as part of
the Registration Statement are and, during the periods covered by their
reports, were independent public accountants as required by the Securities
Act and the Rules.
(e) The Company and each of its Significant Subsidiaries, including
each entity (corporation, partnership, joint venture, association or other
business organization) controlled directly or indirectly by the Company, is
duly organized, validly existing and in good standing under the laws of
their respective jurisdictions of incorporation or organization. The
Company and each of its Significant Subsidiaries is duly qualified to do
business and is in good standing as a foreign corporation, limited
liability company or limited partnership in each jurisdiction in which the
nature of the business conducted by it or location of the assets or
properties owned, leased or licensed by it requires such qualification,
except for such jurisdictions where the failure to so qualify and be in
good standing individually or in the aggregate would not have a material
adverse effect on the assets, properties, condition, financial or
otherwise, or in the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as a whole (a
"Material Adverse Effect"); and to the Company's knowledge, no proceeding
has been instituted in any such jurisdiction revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and
authority or qualification.
(f) The Company and each of its subsidiaries has all requisite
corporate, partnership, limited liability company or other power and
authority, and all necessary authorizations, approvals, consents, orders,
licenses, certificates and permits of and from all governmental or
regulatory bodies or any other person or entity (collectively, the
"Permits"), to own, lease and license its assets and properties and conduct
its business, all of which are valid and in full force and effect,
including all certificates, authorizations, permits and licenses relating
to the ownership of fishing vessels and all fishing and fish processing
rights, licenses, approvals, quotas, permits, entitlements and privileges
of whatever nature necessary for the Company and its subsidiaries to
conduct their business as described in the Registration Statement and the
Prospectus, except where the lack of such Permits, individually or in the
aggregate, would not have a Material Adverse Effect. Except such as are
described in the Registration Statement and the Prospectus or would not
have individually or in the aggregate a Material Adverse Effect, the
Company and each of its subsidiaries has fulfilled and performed in all
material respects all of its material obligations with respect to such
Permits and, to the knowledge of the Company, no event has occurred that
allows, or after notice or lapse of time would allow, revocation or
termination thereof which would have individually or in the aggregate a
Material Adverse Effect. Except such as are described in the Registration
Statement and the Prospectus or would not have individually or in the
aggregate a Material Adverse Effect and except as may be required under the
Securities Act and state and foreign Blue Sky laws or such as may be
required by the by-laws and rules of the National Association of Securities
Dealers, Inc. ("NASD") or NASD Regulation, Inc. ("NASDR") and except as
have already been obtained, no other Permits are required to enter into,
deliver and perform this Agreement, the Indenture (including the Pledge),
the Notes or the Related Transaction Documents and to issue and sell the
Offered Securities.
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(g) Except such as are described in the Registration Statement and
the Prospectus or would not have individually or in the aggregate a
Material Adverse Effect, the Company and each of its Significant
Subsidiaries owns or possesses legally enforceable rights to use all
trademarks, trademark applications, trade names, service marks, copyrights,
copyright applications, licenses, know-how and other similar rights and
proprietary knowledge (collectively, "Intangibles") necessary for the
conduct of its business. Except such as are described in the Registration
Statement and the Prospectus or would not have individually or in the
aggregate a Material Adverse Effect, neither the Company nor any of its
Significant Subsidiaries has received any notice of, or is not aware of,
any infringement of or conflict with asserted rights of others with respect
to any Intangibles.
(h) The Company and each of its Significant Subsidiaries has good and
marketable title in fee simple to all real property, and good and
marketable title to all other property owned by it, in each case free and
clear of all liens, encumbrances, claims, security interests and defects,
except such as are described in the Registration Statement and the
Prospectus or individually or in the aggregate would not have a Material
Adverse Effect. All property held under lease by the Company and its
Significant Subsidiaries is held by them under valid, existing and
enforceable leases, free and clear of all liens, encumbrances, claims,
security interests and defects, except such as are described in the
Registration Statement and the Prospectus or individually or in the
aggregate would not have a Material Adverse Effect.
(i) (i) There is no document, contract or other agreement required
to be described in the Registration Statement, or to be filed as an exhibit
to the Registration Statement which is not described or filed as required
by the Securities Act Rules. Each description of the Indenture, the Notes
(and related guarantees) and the Related Transaction Documents in the
Registration Statement accurately reflects in all material respects the
terms of the underlying contract, document or other agreement. Each Related
Transaction Document in the Registration Statement, Prospectus or listed in
the Exhibits to the Registration Statement is (or will be as of the Firm
Securities Closing Date) in full force and effect and is valid and
enforceable by and against the Company or its subsidiary, as the case may
be, in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equitable principles. Neither the Company nor any of its subsidiaries, if a
subsidiary is a party, nor to the Company's knowledge any other party is in
default in the observance or performance of any term or obligation to be
performed by it under any such agreement, and no event has occurred which
with notice or lapse of time or both would constitute such a default, in
any such case which default or event, individually or in the aggregate,
would have a Material Adverse Effect. No default exists, and no event has
occurred which with notice or lapse of time or both would constitute a
default, in the due performance and observance of any term, covenant or
condition, by the Company or any of its subsidiaries, if a subsidiary is a
party thereto, of any other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or its
properties or business or any subsidiary or its properties or business may
be bound or affected
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which default or event, individually or in the aggregate, would have a
Material Adverse Effect.
(j) Neither the Company nor any of its Significant Subsidiaries is in
violation of any term or provision of its charter or by-laws, where the
consequences of such violation, individually or in the aggregate, would
have a Material Adverse Effect.
(k) The Company and each of the Guarantors has the requisite
corporate, partnership, limited liability company or other power and
authority to execute, deliver and perform its obligations under this
Agreement. This Agreement has been duly and validly authorized, executed
and delivered by each of the Company and the Guarantors.
(l) The Company and each of the Guarantors has the requisite
corporate, partnership, limited liability company or other power and
authority to execute, deliver and perform its obligations under the
Indenture (including the Pledge). The Indenture (including the Pledge) has
been duly and validly authorized by the Company and by each of the
Guarantors and meets the requirements for qualification under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and when
executed and delivered by the Company and each of the Guarantors (assuming
the due authorization, execution and delivery by the Trustee), will
constitute a valid and legally binding agreement of the Company and each of
the Guarantors, enforceable against the Company and against each of the
Guarantors in accordance with its terms except that the enforcement thereof
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles.
(m) The Company and each of the Guarantors has the requisite
corporate, partnership, limited liability company or other power and
authority to execute, deliver and perform its obligations under the Notes
and related guarantees. The Notes and related guarantees have been duly and
validly authorized, as applicable, by the Company and each of the
Guarantors for issuance and, when executed by the Company and each of the
Guarantors and authenticated by the Trustee in accordance with the
provisions of the Indenture, and delivered to and paid for by the
Underwriters in accordance with the terms hereof, will be duly executed,
issued and delivered by the Company and each of the Guarantors and will
constitute valid and legally binding obligations of the Company and each of
the Guarantors, entitled to the benefits of the Indenture and enforceable
against the Company and each of the Guarantors in accordance with their
terms except that the enforcement thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles.
(n) Holdings and each of the guarantors under the Intercompany
Guarantees (the "Intercompany Note Guarantors") has the requisite
corporate, partnership, limited liability company or other power and
authority to execute, deliver and perform its obligations under the
Intercompany Notes and the Intercompany Guarantees. The Intercompany Notes
and the Intercompany Guarantees have been duly and validly
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authorized, as applicable, by Holdings and each of the Intercompany Note
Guarantors for issuance and, when executed by Holdings and each of the
Intercompany Note Guarantors and delivered to the Company, will be duly
executed, issued and delivered by Holdings and each of the Intercompany
Note Guarantors and will constitute valid and legally binding obligations
of Holdings and each of the Intercompany Note Guarantors, enforceable
against Holdings and each of the Intercompany Note Guarantors in accordance
with their terms except that the enforcement thereof may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles.
(o) The Company and each of the Guarantors has the requisite
corporate, partnership, limited liability company or other power and
authority to execute, deliver (to the extent a party thereto) and perform
its obligations under the Related Transaction Documents. The Related
Transaction Documents have been duly and validly authorized by the Company
and each of the Guarantors and when executed and delivered (to the extent a
party thereto) by the Company and each of the Guarantors (assuming the due
authorization, execution and delivery by the other parties thereto), will
constitute valid and legally binding agreements of the Company and each of
the Guarantors, enforceable against the Company and each of the Guarantors
in accordance with theirs terms except that the enforcement thereof may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles.
(p) The Company has delivered to the Representatives a true and
correct copy of each of the Related Transaction Documents that have been
executed and delivered prior to the date of this Agreement and each other
Related Transaction Document in the form substantially as it will be
executed and delivered on or prior to the Firm Securities Closing Date,
together with all schedules and exhibits thereto, and as of the date hereof
there have been no material amendments, alterations, modifications or
waivers of any of the provisions of any of the Related Transaction
Documents since their date of execution or from the form in which such
Related Transaction Documents have been delivered to the Representatives.
(q) Except (x) such as described in the Registration Statement and
the Prospectus, (y) with respect to the Indenture, dated as of April 18,
2002, among American Seafoods Group LLC, American Seafoods Finance, Inc.,
the guarantors listed on Schedule A thereto, and Wells Fargo Bank
Minnesota, National Association, as trustee, and the Second Amended and
Restated Credit Agreement, dated as of December 16, 2002, by and among
American Seafoods Holdings LLC, American Seafoods Consolidated LLC,
American Seafoods Group LLC, the lenders from time to time party thereto,
and Bank of America, N.A., as administrative agent, issuing lender and
swingline lender, or (z) as would not have individually or in the aggregate
a Material Adverse Effect, neither the execution, delivery and performance
of this Agreement, the Indenture (including the Pledge), the Notes, or the
Related Transaction Documents by the Company nor the consummation of any of
the transactions contemplated hereby and thereby
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(including, without limitation, the issuance and sale by the Company and
each of the Guarantors of the Offered Securities) (i) will give rise to a
right to terminate or accelerate the due date of any payment due under, or
conflict with or result in the breach of any term or provision of, or
constitute a default (or an event which with notice or lapse of time or
both would constitute a default) under, or require any consent or waiver
under, or result in the execution or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company or its
subsidiaries pursuant to the terms of, any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which either the Company or its subsidiaries
or any of their properties or businesses is bound, or any franchise,
license, permit, judgment, decree, order, statute, rule or regulation
applicable to the Company or any of its subsidiaries; (ii) will violate any
provision of the charter or by-laws or their equivalent of the Company or
any of the Guarantors; or (iii) will violate any law, administrative
regulation or administrative or court decree applicable to the Company or
any of its subsidiaries, including, without limitation, pursuant to
maritime law or the rules or regulations of the Maritime Administration of
the Department of Transportation (the "Marad"), except for such consents or
waivers which have already been obtained and are in full force and effect.
(r) The Company has (or will have as of the Firm Securities Closing
Date) issued and outstanding capital stock as set forth under the caption
"Capitalization" in the Prospectus, subject to the notes and assumptions
included therein. The certificates evidencing the Common Shares are in due
and proper legal form and have been duly authorized for issuance by the
Company. All of the issued and outstanding shares of Common Stock have been
duly and validly issued and are fully paid and nonassessable. Except as
described in the Registration Statement and the Prospectus, there are no
statutory preemptive or other similar rights to subscribe for or to
purchase or acquire any shares of Common Stock of the Company or any of its
subsidiaries or any such rights pursuant to its certificate of
incorporation or by-laws or any agreement or instrument to or by which the
Company or any of its subsidiaries is a party or bound. The Common Shares,
will be duly and validly issued, fully paid and nonassessable and none of
them will be issued in violation of any preemptive or other similar right.
Except as disclosed in the Registration Statement and the Prospectus, there
is no outstanding option, warrant or other right calling for the issuance
of, and there is no commitment, plan or arrangement to issue, any share of
stock of the Company or any of its subsidiaries or any security convertible
into, or exercisable or exchangeable for, such stock. The IDSs, the Common
Stock, the Notes and the Guarantees conform in all material respects to all
statements in relation thereto contained in the Registration Statement and
the Prospectus. All outstanding shares of capital stock or member or
partnership interests of each of the Company's subsidiaries have been duly
authorized and validly issued, and are fully paid and nonassessable and are
owned directly by the Company or by another wholly-owned subsidiary of the
Company free and clear of any security interests, liens, encumbrances,
equities or claims, other than those described in the Prospectus.
(s) Except as described in the Registration Statement and the
Prospectus or to register securities for issuance on Form S-8 (or any
successor form), no holder of any
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security of the Company or any security or other interest that is
convertible into or exchangeable for such security has any right, which has
not been waived, to have any security owned by such holder included in the
Registration Statement or to demand registration of any security owned by
such holder for a period of 180 days after the date of this Agreement. Each
director, executive officer and stockholder of the Company and each
significant holder of partnership units of ASLP (an "ASLP Unit Holder")
listed on Schedule II has delivered to the Representatives its enforceable
written lock-up agreement in the form attached to this Agreement as Exhibit
A hereto ("Lock-Up Agreement").
(t) Except as disclosed in the Registration Statement and the
Prospectus, there is not pending or, to the knowledge of the Company,
threatened any action, suit, proceeding, inquiry or investigation, to which
any of the Company or its subsidiaries is a party, or to which their
respective properties or assets are subject, before or brought by any
court, arbitrator or governmental agency or body, that could reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.
(u) Except such as are described in the Registration Statement and
the Prospectus or would not have individually or in the aggregate a
Material Adverse Effect, (i) neither the Company nor any of its
subsidiaries is involved in any labor dispute nor, to the knowledge of the
Company, is any such dispute threatened and (ii) the Company is not aware
of any existing or imminent labor disturbance by the employees of any of
its principal suppliers or contractors.
(v) No transaction has occurred (or is expected to occur) between or
among the Company and any of its officers or directors, stockholders or any
affiliate or affiliates of any such officer or director or shareholder that
is required to be described in and is not described in the Registration
Statement or the Prospectus.
(w) The Company has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of
the Common Stock, the Notes or the IDSs or any security of the Company to
facilitate the sale or resale of any of the Offered Securities.
(x) Except such as described in the Registration Statement and the
Prospectus or would not have individually or in the aggregate a Material
Adverse Effect, the Company and each of its Significant Subsidiaries has
filed all Federal, state, provincial, local and foreign tax returns which
are required to be filed through the date hereof, which returns are true
and correct in all material respects or has received timely extensions
thereof, and has paid all taxes shown on such returns and all assessments
received by it to the extent that the same are material and have become
due. Except as described in the Registration Statement and the Prospectus,
there are no tax audits or investigations pending, which if adversely
determined would have individually or in the aggregate a Material Adverse
Effect, nor are there any material proposed additional tax assessments
11
against the Company or any of its Significant Subsidiaries which would have
individually or in the aggregate a Material Adverse Effect.
(y) The IDSs have been duly authorized for listing on the American
Stock Exchange, subject to official notice of issuance. A registration
statement with respect to the IDSs has been filed on Form 8-A pursuant to
Section 12 of the Exchange Act, which registration statement complies in
all material respects with the Exchange Act.
(z) The Company has taken no action designed to, or likely to have
the effect of, terminating the registration of the Offered Securities under
the Exchange Act or listing of IDSs on the American Stock Exchange, nor has
the Company received any notification that the Commission or the American
Stock Exchange is contemplating terminating such registration or quotation.
(aa) The books, records and accounts of the Company and its
subsidiaries accurately and fairly reflect, in all material respects, the
transactions in, and dispositions of, the assets of, and the results of
operations of, the Company and its subsidiaries. The Company maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
accordance with US GAAP and to maintain asset accountability, (iii) access
to assets is permitted only in accordance with management's general or
specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(bb) Except such as described in the Registration Statement and the
Prospectus or would not have individually or in the aggregate a Material
Adverse Effect, the Company and its Significant Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are customary in the businesses in which they
are engaged or propose to engage after giving effect to the transactions
described in the Prospectus, including, without limitation, policies
covering real and personal property owned or leased by the Company and its
Significant Subsidiaries against theft, damage, destruction and acts of
vandalism; the Company and its Significant Subsidiaries are in compliance
with the terms of such policies and instruments in all material respects;
and except such as described in the Registration Statement and the
Prospectus or would not have individually or in the aggregate a Material
Adverse Effect, neither the Company nor any Significant Subsidiary has any
reason to believe, in its reasonable judgment, that it will not be able to
renew its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to
continue its business.
(cc) Except such as described in the Registration Statement and the
Prospectus or would not have individually or in the aggregate a Material
Adverse Effect, each approval, consent, order, authorization, designation,
declaration or filing of, by or with any regulatory, administrative or
other governmental body necessary in connection with
12
the execution and delivery by the Company of this Agreement and the
consummation of the transactions herein contemplated required to be
obtained or performed by the Company has been obtained or made and is in
full force and effect, provided that none of the Company or its
subsidiaries makes any representation or warranty as to state securities or
Blue Sky laws or requirements under the by-laws and rules of the NASD or
NASDR.
(dd) There are no affiliations with the NASD among the Company's
officers, directors or, to the knowledge of the Company, any 5% or greater
stockholder of the Company, except as set forth in the Registration
Statement and the Prospectus or otherwise disclosed in writing to the
Representatives.
(ee) Except such as described in the Registration Statement and the
Prospectus or would not have individually or in the aggregate a Material
Adverse Effect, (i) each of the Company and each of its subsidiaries is in
compliance in all material respects with all rules, laws and regulations
relating to the use, treatment, storage and disposal of toxic substances
and protection of health or the environment ("Environmental Law") which are
applicable to its business, (ii) neither the Company nor its subsidiaries
has received any notice from any governmental authority or third party of
an asserted claim under Environmental Laws, (iii) the Company and each of
its subsidiaries has received all permits, licenses or other approvals
required of it under applicable Environmental Laws to conduct its business
and is in compliance with all terms and conditions of any such permit,
license or approval, (iv) to the Company's knowledge, no facts currently
exist that will require the Company or any of its subsidiaries to make
future material capital expenditures to comply with Environmental Laws, and
(v) no property which is or has been owned, leased or occupied by the
Company or its subsidiaries has been designated as a Superfund site
pursuant to the Comprehensive Environmental Response, Compensation of
Liability Act of 1980, as amended (42 U.S.C. Section 9601, et. seq.)
("CERCLA") or otherwise designated as a contaminated site under applicable
state or local law. Neither the Company nor any of its subsidiaries has
been named as a "potentially responsible party" under CERCLA.
(ff) In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of which the
Company identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably concluded
that such associated costs and liabilities would not, individually or in
the aggregate, have a Material Adverse Effect.
(gg) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of proceeds thereof as
described in the Prospectus, will not be an "investment company" or an
entity "controlled" by an "investment
13
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act").
(hh) Neither the Company nor, to the knowledge of the Company, any
other person associated with or acting on behalf of the Company including,
without limitation, any director, officer, agent or employee of the Company
or its subsidiaries, has, directly or indirectly, while acting on behalf of
the Company or its subsidiaries (i) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity; (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political
parties or campaigns from corporate funds; or (iii) violated any provision
of the Foreign Corrupt Practices Act of 1977, as amended.
(ii) Except as described in the Prospectus, the Company has not sold
or issued any shares of Common Stock during the six-month period preceding
the date of the Prospectus, including any sales pursuant to Rule 144A
under, or Regulations D or S of, the Securities Act.
(jj) The Company has fulfilled its obligations, if any, under the
minimum funding standards of Section 302 of the U.S. Employee Retirement
Income Security Act of 1974 ("ERISA") and the regulations and published
interpretations thereunder with respect to each "plan" as defined in
Section 3(3) of ERISA in which its employees are eligible to participate.
Except such as described in the Registration Statement and the Prospectus
or would not have individually or in the aggregate a Material Adverse
Effect, each such plan is in compliance in all respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations. No "Reportable Event" (as defined in Section 4042 ERISA)
has occurred with respect to any "Pension Plan" (as defined in ERISA) for
which the Company could reasonably have any material liability.
(kk) None of the Company, its directors and officers has distributed
or will distribute prior to the later of (i) the Firm Securities Closing
Date or the Option Securities Closing Date, and (ii) the completion of the
distribution of the Offered Securities, any offering material in connection
with the offering and sale of the Offered Securities other than any
Preliminary Prospectus, or the Registration Statement and other materials,
if any, permitted by the Securities Act.
(ll) The statistical and market and industry-related data included in
the Registration Statement, all the Preliminary Prospectuses and the
Prospectus are based on or derived from sources which the Company believes
to be reliable and accurate or represent the Company's good faith estimates
that are made on the basis of data derived from such sources.
(mm) The Company has not taken or will take any action that would
cause this Agreement or the issuance or sale of the Offered Securities to
violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System, in each case as in effect, or as the same may hereafter be
in effect, on each Closing Date.
14
(nn) Immediately after the consummation of the transactions
contemplated by this Agreement and the Related Transactions, (i) the fair
value and present fair saleable value of the assets of the Company and its
subsidiaries taken as a whole will exceed the sum of its stated liabilities
and identified contingent liabilities; and (ii) the Company and its
subsidiaries taken as a whole is not, nor will it be, after giving effect
to the execution, delivery and performance of this Agreement and the
Related Transaction Documents, and the consummation of the transactions
contemplated hereby and thereby, (a) left with unreasonably small capital
with which to carry on its business as it is proposed to be conducted, (b)
unable to pay its debts (contingent or otherwise) as they mature or (c)
otherwise insolvent.
(oo) The Company will, as of the Closing Date, be in compliance in all
material respects with the applicable provisions of the Sarbanes-Oxley Act
of 2002 that are effective.
3. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Offered Securities are subject
to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective
shall have been received by the Representatives and the Prospectus shall
have been timely filed with the Commission in accordance with Section 5(a)
of this Agreement.
(b) No order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus shall have been or shall be in effect and no
order suspending the effectiveness of the Registration Statement shall be
in effect and, to the knowledge of the Company, no proceedings for such
purpose shall be pending before or threatened by the Commission, no order
having the effect of ceasing or suspending the distribution of the Offered
Securities shall have been issued or, to the knowledge of the Company,
proceedings therefore initiated or threatened by any securities commission,
securities regulatory authority or stock exchange in the United States and
any requests for additional information on the part of the Commission (to
be included in the Registration Statement or the Prospectus or otherwise)
shall have been complied with to the satisfaction of the Commission and the
Representatives. If the Company has elected to rely upon Rule 430A, Rule
430A information previously omitted from the effective Registration
Statement pursuant to Rule 430A shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) within the prescribed time
period and the Company shall have provided evidence satisfactory to the
Underwriters of such timely filing, or a post-effective amendment providing
such information shall have been promptly filed and declared effective in
accordance with the requirements of Rule 430A. If the Company has elected
to rely upon Rule 434, a term sheet shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) within the prescribed time
period.
(c) The representations and warranties of the Company and each of the
Guarantors contained in this Agreement and in the certificates delivered
pursuant to
15
Section 4(d) shall be true and correct when made and on and as of each
Closing Date as if made on such date. The Company shall have performed all
covenants and agreements and satisfied all the conditions contained in this
Agreement required to be performed or satisfied by them at or before such
Closing Date.
(d) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives and dated such Closing Date,
of the chief executive or chief operating officer and the chief financial
officer or chief accounting officer of the Company to the effect that: (i)
the representations, warranties and agreements of the Company and the
Guarantors in this Agreement were true and correct when made and are true
and correct as of such Closing Date; (ii) the Company has performed all
covenants and agreements and satisfied all conditions contained herein; and
(iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and, to their knowledge, no proceedings for that
purpose have been instituted, are pending or, to the knowledge of the
Company, are contemplated under the Securities Act.
(e) The Representatives shall have received, at the time this
Agreement is executed and on each Closing Date a signed letter from KPMG
LLP addressed to the Representatives and dated, respectively, the date of
this Agreement and each such Closing Date, in form and substance reasonably
satisfactory to the Representatives containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
Underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(f) The letter, dated , 2003, which was delivered by Marad to the
Representatives, shall have remained in full force and effect, and there
shall have been no material amendments, alterations, modifications or
waivers of any provisions thereof since the date of such letter.
(g) The Representatives shall have received on each Closing Date from
Debevoise & Plimpton, U.S. counsel for the Company, an opinion, addressed
to the Representatives and dated such Closing Date, substantially in the
form set forth in Exhibit .
To the extent deemed advisable by such counsel, such counsel may rely as to
matters of fact on certificates of responsible officers of the Company and
public officials and on the opinions of other counsel satisfactory to the
Representatives as to matters which are governed by laws other than the laws of
the State of New York, the General Corporation Law of the State of Delaware and
the Federal laws of the United States; provided that such counsel shall state
that in their opinion the Underwriters and they are justified in relying on such
other opinions. Copies of such certificates and other opinions shall be
furnished to the Representatives and counsel for the Underwriters.
(h) The Representatives shall have received on each Closing Date from
Skadden, Arps, Slate, Meagher & Flom LLP, U.S. counsel for the
Representatives, an opinion, addressed to the Representatives and dated
such Closing Date, in a form reasonably satisfactory to the
Representatives.
16
(i) The Company shall have received on each Closing Date from
Debevoise & Plimpton, U.S. tax counsel for the Company, an opinion,
addressed to the Company and dated such Closing Date, substantially in the
form set forth in Exhibit hereto.
(j) The Representatives shall have received on each Closing Date from
Skadden, Arps, Slate, Meagher & Flom LLP, U.S. tax counsel for the
Representatives, an opinion, addressed to the Representatives and dated
such Closing Date, in a form reasonably satisfactory to the
Representatives.
(k) The Representatives shall have received copies of the Lock-up
Agreements executed by each entity or person listed on Schedule hereto.
(l) The Indenture shall have been duly executed and delivered by the
Company, each of the Guarantors and the Trustee, and the Notes (and related
Guarantees) shall have been duly executed and delivered by the Company and
each of the Guarantors and duly authenticated by the Trustee.
(m) Each of the Related Transaction Documents shall be reasonably
satisfactory in form and substance to the Representatives and shall have
been executed and delivered by all the respective parties thereto and shall
be in full force and effect, and there shall have been no material
amendments, alterations, modifications or waivers of any provisions thereof
since the date of this Agreement.
(n) At least 51% of the Company's outstanding $175 million aggregate
principal amount of 10.125% senior subordinated notes due 2010 are validly
tendered and not withdrawn in accordance with the tender offer and the
aggregate consideration to be paid for such tendered notes does not exceed
$ million.
(o) There shall not have been any announcement by any "nationally
recognized statistical rating organization," as defined for purposes of
Rule 436(g) under the Securities Act, that (A) it is downgrading its rating
assigned to any debt securities of the Company or any of its subsidiaries,
or (B) it is reviewing its rating assigned to any debt securities of the
Company or any of its subsidiaries, and notice has been given to the
Company of a potential downgrading.
(p) The IDSs shall have been approved for listing on the American
Stock Exchange, subject only to official notice of issuance.
(q) The Company shall have furnished or caused to be furnished to the
Representatives such further certificates or documents as the
Representatives shall have reasonably requested.
4. Covenants of the Company.
(a) The Company covenants and agrees as follows:
17
(i) The Company will use its reasonable efforts to cause the
Registration Statement, if not effective at the time of execution of
this Agreement, and any amendments thereto, to become effective as
promptly as possible. The Company shall prepare the Prospectus in a
form approved by the Representatives and file such Prospectus pursuant
to Rule 424(b) under the Securities Act not later than the
Commission's close of business on the second business day following
the execution and delivery of this Agreement, or, if applicable, such
earlier time as may be required by the Rules.
(ii) The Company shall promptly advise the Representatives in
writing (A) when any post-effective amendment to the Registration
Statement shall have become effective or any supplement to the
Prospectus shall have been filed, (B) of any request by the Commission
for any amendment of the Registration Statement or the Prospectus or
for any additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any
Preliminary Prospectus or the institution or threatening of any
proceeding for that purpose and (D) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Offered Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company shall not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Company has furnished the
Representatives a copy for their review prior to filing and shall not
file any such proposed amendment or supplement to which the
Representatives reasonably object. In the event of the issuance of
such stop order, the Company shall use its reasonable efforts to
obtain as soon as possible the withdrawal thereof.
(iii) If, at any time when a Prospectus relating to the Offered
Securities is required to be delivered under the Securities Act and
the Rules, any event occurs as a result of which the Prospectus as
then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend or
supplement the Prospectus to comply with the Securities Act or the
Rules, the Company promptly shall prepare and file with the
Commission, subject to the second sentence of paragraph (ii) of this
Section 4(a), an amendment or supplement which shall correct such
statement or omission or an amendment which shall effect such
compliance.
(iv) The Company shall make generally available to its security
holders and to the Representatives as soon as practicable, but not
later than 45 days after the end of the 12-month period beginning at
the end of the fiscal quarter of the Company during which the
Effective Date occurs (or 75 days if such 12-month period coincides
with the Company's fiscal year), an earning statement (which need not
be audited) of the Company, covering such 12-month period, which shall
18
satisfy the provisions of Section 11(a) of the Securities Act or Rule
158 of the Rules.
(v) The Company shall furnish to the Representatives and
counsel for the Underwriters, without charge and upon their request,
signed copies of the Registration Statement (including all exhibits
thereto and amendments thereof) and to each other Underwriter a copy
of the Registration Statement (without exhibits thereto) and all
amendments thereof and, so long as delivery of a prospectus by a
Underwriter or dealer may be required by the Securities Act or the
Rules, as many copies of any Preliminary Prospectus and the Prospectus
and any amendments thereof and supplements thereto as the
Representatives may reasonably request. If applicable, the copies of
the Registration Statement and Prospectus and each amendment and
supplement thereto furnished to the Underwriters will be identical, in
all material respects, to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(vi) The Company shall cooperate with the Representatives and
their counsel in endeavoring to qualify the Offered Securities for
offer and sale in connection with the offering under the laws of such
jurisdictions as the Representatives may designate and shall maintain
such qualifications in effect so long as required for the distribution
of the Offered Securities; provided, however, that the Company shall
not be required in connection therewith, as a condition thereof, to
qualify as a foreign corporation or to execute a general consent to
service of process in any jurisdiction or subject itself to taxation
as doing business in any jurisdiction.
(vii) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act and the Rules or the
Exchange Act and the rules and regulations promulgated thereunder,
will file all reports and other documents required to be filed with
the Commission pursuant to Section 13, 14 or 15 of the Exchange Act
within the time periods required by the Exchange Act and the rules and
regulations promulgated thereunder.
(viii) Without the prior written consent of CIBC World Markets
Corp., for a period of 180 days after the date of this Agreement, the
Company and each of the signatories listed on Schedule II hereto shall
not issue, sell or register with the Commission (other than on Form
S-8 or on any successor form), or otherwise dispose of, directly or
indirectly, any equity securities of the Company (or any securities
convertible into, exercisable for or exchangeable for equity
securities of the Company), except for the issuance of the Common
Shares pursuant to the Registration Statement, the issuance of the
Exchange Warrants and except as disclosed in the Registration
Statement and the Prospectus.
(ix) Prior to the Firm Securities Closing Date, the Company
will issue no press release or other communications directly or
indirectly and hold no press
19
conference with respect to the Company and its subsidiaries, the
condition, financial or otherwise, or the earnings, business affairs
or business prospects of any of them, or the offering of the Offered
Securities without the prior consent of the Representatives unless in
the judgment of the Company and its counsel, and after notification to
the Representatives, such press release or communication is required
by law.
(x) The Company will apply the net proceeds from the offering
of the Offered Securities in the manner set forth under "Use of
Proceeds" in the Prospectus.
(xi) The Company will use its reasonable best efforts to permit
the Offered Securities to be eligible for clearance and settlement
through DTC.
(b) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses
incident to the public offering of the Offered Securities and the
performance of the obligations of the Company under this Agreement
including those relating to: (i) the preparation, printing, filing and
distribution of the Registration Statement including all exhibits thereto,
each Preliminary Prospectus, the Prospectus, all amendments and supplements
to the Registration Statement and the Prospectus, (ii) the preparation and
delivery of certificates for the Offered Securities to the Underwriters;
(iii) the registration or qualification of the Offered Securities for offer
and sale under the securities or Blue Sky laws of the various jurisdictions
referred to in Section 4(a)(vi), including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
registration and qualification and the preparation, printing, distribution
and shipment of preliminary and supplementary Blue Sky memoranda; (iv) the
furnishing (including costs of shipping and mailing) to the Representatives
and to the Underwriters of copies of each preliminary prospectus, the
Prospectus and all amendments or supplements to the Prospectus, and of the
several documents required by this Section to be so furnished, as may be
reasonably requested for use in connection with the offering and sale of
the Offered Securities by the Underwriters or by dealers to whom Offered
Securities may be sold; (v) the filing fees of the NASD in connection with
its review of the terms of the public offering and reasonable fees and
disbursements of counsel for the Underwriters in connection with such
review; (vi) inclusion of the IDSs for listing on the American Stock
Exchange; and (vii) all transfer taxes, if any, with respect to the sale
and delivery of the Offered Securities by the Company to the Underwriters.
Subject to the provisions of Section 7, the Underwriters agree to pay,
whether or not the transactions contemplated hereby are consummated or this
Agreement is terminated, all costs and expenses incident to the performance
of the obligations of the Underwriters under this Agreement not payable by
the Company pursuant to the preceding sentence, including, without
limitation, the fees and disbursements of counsel for the Underwriters.
20
5. Indemnification.
(a) The Company and each of the Guarantors, jointly and severally
agrees to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all
losses, claims, damages and liabilities, joint or several (including any
reasonable investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted), to which they, or any of them, may become subject
under the Securities Act, the Exchange Act, or other Federal or state law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any amendment
thereof or supplement thereto, or in any Blue Sky application or other
information or other documents executed by the Company filed in any state
or other jurisdiction to qualify any or all of the Offered Securities under
the securities laws thereof (any such application, document or information
being hereinafter referred to as a "Blue Sky Application") or arise out of
or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that such indemnity
shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) on account of any losses, claims, damages or
liabilities arising from the sale of the Offered Securities to any person
by such Underwriter if such untrue statement or omission or alleged untrue
statement or omission was made in any such Preliminary Prospectus, the
Registration Statement or the Prospectus, or such amendment or supplement
thereto, or in any Blue Sky Application in reliance upon and in conformity
with information furnished in writing to the Company by the Representatives
on behalf of any Underwriter specifically for use therein; and provided,
further, that with respect to any such untrue statement in or omission from
the Preliminary Prospectus, the indemnity agreement contained in this
Section 5(a) shall not inure to the benefit of any such Underwriter to the
extent that the sale to the person asserting any such loss, claim, damage,
liability or action was an initial resale by such Underwriter and any such
loss, claim, damage, liability or action of or with respect to such
Underwriter has been determined by final and non-appealable judgment that:
(w) the Company had previously furnished copies of the Prospectus to the
Representative, (x) delivery of the Prospectus was required to be made to
such person, (y) the untrue statement or omission contained in the
Preliminary Prospectus was corrected in the Prospectus and (z) a copy of
the Prospectus was not sent or given to such person at or prior to the
written confirmation of the sale of such Offered Securities to such person
(b) Each Underwriter agrees to indemnify and hold harmless the
Company and each of the Guarantors, and each person, if any, who controls
the Company or any of the Guarantors within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, each director of the
Company, and each officer of the Company who signs the Registration
Statement, against any losses, claims, damages or liabilities (including
any reasonable investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim
21
asserted), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act, or other Federal or state law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by
such Underwriter through the Representatives expressly for use therein;
provided, however, that the obligation of each Underwriter to indemnify the
Company (including any controlling person, director or officer thereof)
shall be limited to the net proceeds received by the Company from such
Underwriter.
(c) Any party that proposes to assert the right to be indemnified
under this Section will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a
claim is to be made against an indemnifying party or parties under this
Section, notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 5(a) or 5(b) shall be available to
any party who shall fail to give notice as provided in this Section 5(c) if
the party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by the failure to
give such notice but the omission so to notify such indemnifying party of
any such action, suit or proceeding shall not relieve it from any liability
that it may have to any indemnified party for contribution or otherwise
than under this Section. In case any such action, suit or proceeding shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate in, and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and the approval by
the indemnified party of such counsel, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses, except as
provided below and except for the reasonable costs of investigation
subsequently incurred by such indemnified party in connection with the
defense thereof. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the employment of
counsel by such indemnified party has been authorized in writing by the
indemnifying parties, (ii) the indemnified party shall have been advised by
counsel that there may be one or more legal defenses available to it which
are different from or in addition to those available to the indemnifying
party (in which case the indemnifying parties shall not have the right to
direct the defense of such action on behalf of the indemnified party) or
(iii) the indemnifying parties shall not have employed
22
counsel to assume the defense of such action within a reasonable time after
notice of the commencement thereof, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying parties. An
indemnifying party shall not be liable for any settlement of any action,
suit, and proceeding or claim effected without its written consent, which
consent shall not be unreasonably withheld or delayed.
6. Contribution. In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in Section 5(a) or
5(b) is due in accordance with its terms but for any reason is unavailable to or
insufficient to hold harmless an indemnified party in respect to any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate losses, liabilities,
claims, damages and expenses (including any investigation, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting any contribution received by any person entitled hereunder to
contribution from any person who may be liable for contribution) incurred by
such indemnified party, as incurred, in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Offered Securities
pursuant to this Agreement or, if such allocation is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company on the one
hand and the Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Underwriters in the aggregate shall be
deemed to be in the same proportion as (x) the total proceeds from the offering
(net of underwriting discounts but before deducting expenses) received by the
Company bear to (y) the underwriting discounts received by the Underwriters. The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 6 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6, (i) no Underwriter (except as
may be provided in the Agreement Among Underwriters) shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of damages which such Underwriter has
otherwise been required to pay by reason of any such untrue or alleged untrue
statement or omission or alleged omission. 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. For purposes of this Section 6, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the
23
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, shall have the same rights to contribution as the Company. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this Section
6, notify such party or parties from whom contribution may be sought, but the
omission so to notify such party or parties from whom contribution may be sought
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
Section 6. No party shall be liable for contribution with respect to any action,
suit, proceeding or claim settled without its written consent. The Underwriter's
obligations to contribute pursuant to this Section 6 are several in proportion
to their respective underwriting commitments and not joint.
7. Termination.
(a) This Agreement may be terminated with respect to the Offered
Securities to be purchased on a Closing Date by the Representatives by
notifying the Company at any time at or before a Closing Date in the
absolute discretion of the Representatives if: (i) there has occurred any
material adverse change in the securities markets or any event, act or
occurrence that has materially disrupted, or in the opinion of the
Representatives, will in the future materially disrupt, the securities
markets or there shall be such a material adverse change in general
financial, political or economic conditions or the effect of international
conditions on the financial markets in the United States is such as to make
it, in the judgment of the Representatives, inadvisable or impracticable to
market the Offered Securities or enforce contracts for the sale of the
Offered Securities; (ii) there has occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which
on the financial markets of the United States is such as to make it, in the
judgment of the Representatives, inadvisable or impracticable to market the
Offered Securities or enforce contracts for the sale of the Offered
Securities; (iii) trading in the Offered Securities or any securities of
the Company has been suspended or materially limited by the Commission or
trading generally on the New York Stock Exchange, Inc., the American Stock
Exchange, Inc., the NASDAQ National Market has been suspended or materially
limited, or minimum or maximum ranges for prices for securities shall have
been fixed, or maximum ranges for prices for securities have been required,
by any of said exchanges or by such system or by order of the Commission,
the National Association of Securities Dealer, Inc., or any other U.S.
governmental or regulatory authority; or (iv) a banking moratorium has been
declared by any state or Federal authority of the United States; or (v) in
the judgment of the Representatives, there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
assets, properties, condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the Company and its
subsidiaries considered as a whole, whether or not arising in the ordinary
course of business.
(b) If this Agreement is terminated pursuant to any of its
provisions, the Company shall not be under any liability to any
Underwriter, and no Underwriter shall be
24
under any liability to the Company except that (y) if this Agreement is
terminated by the Representatives or the Underwriters because of any
failure, refusal or inability on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, the Company
will reimburse the Underwriters for all out-of-pocket expenses (including
the reasonable fees and disbursements of their counsel) incurred by them in
connection with the proposed purchase and sale of the Offered Securities or
in contemplation of performing their obligations hereunder and (z) no
Underwriter who shall have failed or refused to purchase the Offered
Securities agreed to be purchased by it under this Agreement, without some
reason sufficient hereunder to justify cancellation or termination of its
obligations under this Agreement, shall be relieved of liability to the
Company or to the other Underwriters for damages occasioned by its failure
or refusal.
8. Substitution of Underwriters. If any Underwriter shall default in its
obligation to purchase on any Closing Date the Offered Securities agreed to be
purchased hereunder on such Closing Date, the Representatives shall have the
right, within thirty-six hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other Underwriters, to purchase such
Offered Securities on the terms contained herein. If, however, the
Representatives shall not have completed such arrangements within such
thirty-six-hour period, then the Company shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties
satisfactory to the Underwriters to purchase such Offered Securities on such
terms. If, after giving effect to any arrangements for the purchase of the
Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided above, the aggregate number of
Offered Securities which remains unpurchased on such Closing Date does not
exceed 10% of the aggregate number of all the Offered Securities that all the
Underwriters are obligated to purchase on such date, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
Offered Securities which such Underwriter agreed to purchase hereunder at such
date and, in addition, to require each non-defaulting Underwriter to purchase
its pro rata share (based on the number of Offered Securities which such
Underwriter agreed to purchase hereunder) of the Offered Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default. In any such case, either the Representatives or the Company
shall have the right to postpone the applicable Closing Date for a period of not
more than seven days in order to effect any necessary changes and arrangements
(including any necessary amendments or supplements to the Registration Statement
or Prospectus or any other documents), and the Company agrees to file promptly
any amendments to the Registration Statement or the Prospectus which in the
opinion of the Company and the Underwriters and their counsel may thereby be
made necessary.
If, after giving effect to any arrangements for the purchase of the Offered
Securities of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided above, the aggregate number of such Offered
Securities which remains unpurchased exceeds 10% of the aggregate number of all
the Offered Securities to be purchased at such date, then this Agreement, or,
with respect to a Closing Date which occurs after the first Closing Date, the
obligations of the Underwriters to purchase and of the Company, as the case may
be, to sell the Option Securities to be purchased and sold on such date, shall
terminate, without liability on the part of any non-defaulting Underwriter to
the Company and without liability on the part of the
25
Company, except as provided in Sections 5(b), 6, 7, 8 and 9. The provisions of
this Section 8 shall not in any way affect the liability of any defaulting
Underwriter to the Company or the non-defaulting Underwriters arising out of
such default. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section 8 with like effect as if such person had
originally been a party to this Agreement with respect to such Offered
Securities.
9. Miscellaneous. The respective agreements, representations, warranties,
indemnities and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or the Company or any of their respective officers, directors
or controlling persons referred to in Sections 5 and 6 hereof, and shall survive
delivery of and payment for the Offered Securities. In addition, the provisions
of Sections 4(b), 5, 6 and 7 shall survive the termination or cancellation of
this Agreement.
This Agreement has been and is made for the benefit of the Underwriters,
the Company and their respective successors and assigns, and, to the extent
expressed herein, for the benefit of persons controlling any of the
Underwriters, or the Company, and directors and officers of the Company, and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include any purchaser of Offered Securities from any
Underwriter merely because of such purchase.
All notices and communications hereunder shall be in writing and mailed or
delivered or by telephone or telegraph if subsequently confirmed in writing, (a)
if to the Representatives, c/o CIBC World Markets Corp., 417 5th Avenue, 2nd
Floor, New York, New York 10016 Attention: , with a copy to Skadden, Arps,
Slate, Meagher & Flom LLP and (b) if to the Company, to its agent for service as
such agent's address appears on the cover page of the Registration Statement
with a copy to Debevoise & Plimpton.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the agreement among
us.
Very truly yours,
AMERICAN SEAFOODS CORPORATION,
By
-------------------------------------
Title:
26
AMERICAN SEAFOODS HOLDINGS LLC, as
Guarantor
By
-------------------------------------
Title:
AMERICAN SEAFOODS GROUP LLC, as
Guarantor
By
-------------------------------------
Title:
AMERICAN SEAFOODS INTERNATIONAL LLC, as
Guarantor
By
-------------------------------------
Title:
NEW BEDFORD SEAFOODS LLC, as Guarantor
By
-------------------------------------
Title:
THE HADLEY GROUP LLC, as Guarantor
By
-------------------------------------
Title:
AMERICAN SEAFOODS PROCESSING LLC, as
Guarantor
By
-------------------------------------
Title:
27
AMERICAN SEAFOODS COMPANY LLC, as
Guarantor
By
-------------------------------------
Title:
AMERICAN CHALLENGER LLC, as Guarantor
By
-------------------------------------
Title:
AMERICAN DYNASTY LLC, as Guarantor
By
-------------------------------------
Title:
AMERICAN TRIUMPH LLC, as Guarantor
By
-------------------------------------
Title:
OCEAN ROVER LLC, as Guarantor
By
-------------------------------------
Title:
NORTHERN EAGLE LLC, as Guarantor
By
-------------------------------------
Title:
NORTHERN HAWK LLC, as Guarantor
By
-------------------------------------
Title:
28
NORTHERN JAEGER LLC, as Guarantor
By
-------------------------------------
Title:
KATIE ANN LLC, as Guarantor
By
-------------------------------------
Title:
SOUTHERN PRIDE CATFISH LLC, as Guarantor
By
-------------------------------------
Title:
SOUTHERN PRIDE CATFISH TRUCKING, INC.,
as Guarantor
By
-------------------------------------
Title:
29
Confirmed:
CIBC WORLD MARKETS CORP.
- -------------------------------------------
Acting severally on behalf of itself
and as representative of the Underwriters
named in Schedule I annexed hereto.
By CIBC WORLD MARKETS CORP.
By
----------------------------------------
Title:
30
SCHEDULE I
Number of
IDSs to
Name Be Purchased
- ---- ------------
CIBC World Markets Corp.
Credit Suisse First Boston Corporation
UBS Securities LLC
RBC Dain Rauscher, Inc. -----------------------
Legg Mason Wood Walker, incorporated
McDonald Investment Inc., a KeyCorp Company
U.S. Bancorp Piper Jaffray Inc
Wells Fargo Securities, LLC
Scotia Capital (USA) Inc
Total
Exhibit A
LOCKUP AGREEMENT
----------------
, 2003
CIBC World Markets Corp.
Credit Suisse First Boston LLC
UBS Securities LLC
as Representatives of the
several Underwriters
c/o CIBC World Markets Corp.
417 5/th/ Avenue, 2/nd/ Floor
New York, New York 10016
Re: Public Offering of Income Deposit Securities of
American Seafoods Corporation.
Ladies and Gentlemen:
The undersigned understands that American Seafoods Corporation, a Delaware
corporation (the "Company"), has filed a Registration Statement on Form S-1 (No.
333-105499) with the Securities and Exchange Commission (the "Commission") that
was declared effective by the Commission on _____, 2003 for the registration of
Income Depositary Securities (the "IDSs") (including IDSs subject to an
over-allotment option on the part of the Underwriters) (the "Offering"). Each
IDS represents one share of common stock, par value $0.01 per share, of the
Company (the "Common Stock") and $ in aggregate principal amount of the % notes
due 2013 of the Company (the "Notes"). The undersigned further understands that
you, as representatives, propose to enter into an underwriting agreement on
behalf of the several Underwriters named in Schedule I to such agreement
(collectively, the "Underwriters"), with the Company in connection with the
Offering.
In consideration of the agreement by the Underwriters to offer and sell the
IDSs, and of other good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, the undersigned agrees, for the benefit of the
Company, you and the other Underwriters, that should the Offering be effected
the undersigned will not, without your prior written consent, directly or
indirectly, make any offer, sale, assignment, transfer, encumbrance, contract to
sell, grant of an option to purchase or other disposition of any shares of
Common Stock or IDSs, or any options or warrants or exchange warrants to
purchase any shares of Common Stock or IDSs, or any securities convertible into,
exchangeable for or that represent the right to receive shares of Common Stock
or IDSs, beneficially owned (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) by the undersigned on the date
hereof or hereafter acquired for a period of 180 days subsequent to the date of
the Underwriting Agreement, other than any shares of Common Stock or IDSs to be
sold in the Offering, or transferred to any entity or person listed on Schedule
to the Underwriting Agreement, dated as of , among the Company, the
guarantors named therein and the Underwriters, or transferred as a gift or gifts
to his or her immediate family or to a trust the
beneficiary of which is exclusively the undersigned and/or a member or members
of his or her immediate family (provided that any donee thereof agrees in
writing to be bound by the terms hereof). For the purposes of this paragraph,
"immediate family" shall mean spouse, lineal descendant, father, mother, brother
or sister of the transferor.
The undersigned, whether or not participating in the Offering, confirms
that he, she or it understands that the Underwriters and the Company will rely
upon the representations set forth in this agreement in proceeding with the
Offering. This agreement shall be binding on the undersigned and his, her or its
respective successors, heirs, personal representatives and assigns. The
undersigned agrees and consents to the entry of stop transfer instructions with
the Company's transfer agent against the transfer of any IDSs or shares of
Common Stock or securities convertible into or exchangeable or exercisable for
IDSs or Common Stock held by the undersigned except in compliance with this
agreement.
Very truly yours,
Dated: ______, 2003
Signature_______________________________
Printed Name and Title (if applicable)