Exhibit 3.5
AMERICAN SEAFOODS CORPORATION
FORM OF BOARD OWNERSHIP POLICIES
1. Pursuant to Section C(1) of Article FOURTH of the Amended and Restated
Certificate of Incorporation of American Seafoods Corporation (the
"Corporation" and such certificate, the "Certificate of Incorporation";
capitalized terms used herein without definition are used as they are
defined in the Certificate of Incorporation), the Board of Directors has
duly adopted the following Board Ownership Policies to remain in effect
until such times as they are amended, restated or supplemented in
accordance with the terms of the Certificate of Incorporation.
2. Restrictions on Ownership of Common Stock and Preferred Stock.
. At all times Beneficial Owners of at least (i) 80% of each class
of Common Stock and (ii) 100% of each series of Preferred Stock
must be U.S. Citizens, unless otherwise expressly provided in the
relevant Preferred Stock Certificate of Designations referred to
in the Corporation's Certificate of Incorporation.
. At all times Beneficial Owners of at least [95%] of each class of
Common Stock must have addresses within the United States.
3. Board Membership.
. At all times, no more than a minority of the number of directors
necessary to constitute a quorum of the Board of Directors of the
Corporation may be Non-U.S. Citizens.
4. Certifications.
. Prior to consummating the initial public offering of shares of
Common Stock, the Corporation will require [its principal
underwriter leading such offering to certify to the Corporation
that the Persons acquiring Beneficial Ownership of not less than
95% of the shares of Common Stock from such underwriter have
addresses in the United States or, if such Persons are also
underwriters of such offering, that such underwriters have agreed
to sell such shares of Common Stock only to Persons with
addresses in the United States].
. Promptly upon becoming aware of any Person becoming a Beneficial
Owner of 5% or more of the then outstanding shares of Common
Stock, whether through the filing of a report with the Securities
and Exchange Commission under Regulation 13D-G of the Securities
Exchange Act of
1934, as amended, or otherwise, and prior to February 15, May 15,
August 15 and November 15 of each year thereafter, the
Corporation shall provide to each such Beneficial Owner an
affidavit substantially in the form of Annex I hereto, requesting
the name and address of such Beneficial Owner, the number of
shares of Common Stock Beneficially Owned by such Beneficial
Owner as of the date of the affidavit, the legal structure of
such Beneficial Owner, and a statement as to whether such
Beneficial Owner is a U.S. Citizen. Each such Beneficial Owner
must return to the Corporation a duly executed affidavit
following its receipt promptly, but, with respect to quarterly
affidavits, in no event later than each March 1, June 1,
September 1 and December 1 of each year for so long as such
Beneficial Owner holds 5% or more of the outstanding shares of
Common Stock.
. The Corporation shall request from each Beneficial Owner of
Common Stock (or from such Beneficial Owner's broker, dealer,
custodian, depositary, nominee or similar agent) such Beneficial
Owner's physical address or confirmation thereof not less than
quarterly. Each Beneficial Owner of Common Stock must provide, or
authorize such Beneficial Owner's broker, dealer, custodian,
depositary, nominee or similar agent to provide, such information
to the Corporation promptly.
. Each director of the Corporation must certify to the Corporation,
as a condition to being accepted as nominee to the Board of
Directors and submitted to the shareholders of the Corporation
for approval, whether such Person is a U.S. Citizen and
thereafter promptly report to the Corporation any change in such
director's citizenship.
. The chief executive officer of the Corporation shall implement a
compliance program aimed at preserving the status of the
Corporation as a U.S. Citizen in accordance with applicable legal
and regulatory requirements, and to monitor and report any
changes in the information relevant to such citizenship to the
extent required by such law or regulations. As part of the
compliance program, the chief executive officer of the
Corporation shall advise the board of any changes in these
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Board Ownership Policies that may be required or recommended in
order to maintain the status of the Corporation as a U.S.
Citizen.
5. Remedies.
. The Corporation shall take such steps as the Chief Executive
Officer deems necessary in his sole discretion for the
Corporation to satisfy the Common Stock ownership limitations set
forth in these Board Ownership Policies and in the Certificate of
Incorporation.
. The Corporation shall redeem, on a "last in, first out" basis and
otherwise in accordance with the terms of the Certificate of
Incorporation (including following notice periods provided
therein) and applicable law, such Non-Complying Shares as any
executive officer of the Corporation deems necessary, in his or
her sole discretion, in order to satisfy the Common Stock
ownership limitations set forth from time to time herein and in
the Certificate of Incorporation.
6. Presumptions.
. Any Person holding shares of Common Stock that does not comply
with the Board Ownership Policies set forth herein or the Common
Stock ownership limitations and certifications set forth in the
Certificate of Incorporation shall be deemed to be a Prohibited
Owner and all of the shares held by such Person shall be deemed
to be Non-Complying Shares for purposes of the calculations
required by the Certificate of Incorporation and hereby.
. For purposes of determining percentage ownership levels of Common
Stock, the Corporation may use the number of outstanding shares
of
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Common Stock included on the Corporation's quarterly or annual
report most recently filed with the Securities Exchange
Commission on Form 10-Q or 10-K or such other number that the
Corporation deems to be more recent.
7. Definitions. For informational purposes only, replicated below are certain
aspects of definitions under the American Fisheries Act and regulations
promulgated thereunder. Neither the Corporation nor the Board of Directors
takes any responsibility for the accuracy of the definitions reproduced
below or undertakes to update such definitions in the event of the adoption
of any amendments, restatements or supplements by any authorized body.
"Citizenship Approval Officer" means the Citizenship Approval Officer
of MARAD with the Office of Chief Counsel.
"Non-U.S. Citizen" means any Person other than a U.S. Citizen.
"U.S. Citizen" means an individual who is a citizen of the United
States by birth, naturalization or as otherwise authorized by law, or
an entity that (i) is organized under the laws of the United States or
any State, (ii) 75% of the ownership and control of which must be
owned by and vested in U.S. Citizens free from any trust or fiduciary
obligation in favor of Non-U.S. Citizens, (iii) with respect to which
no arrangement exists, whether through contract or any understanding,
that would allow more than 25% of the voting power of such entity to
be exercised directly or indirectly on behalf of any Non-U.S. Citizen
and (iv) control of which by any other means whatsoever is not
conferred upon or permitted to be exercised by a Non-U.S. Citizen; and
(a) With respect to an entity that is a corporation, (x) the
chief executive officer, by whatever title, of such entity and
the chairman of such entity's board of directors (or equivalent
committee or body) are U.S. Citizens and all officers authorized
to act in their absence or disability are U.S. Citizens and (y)
no more than a minority of the number of directors (or the
equivalent) of such entity necessary to constitute a quorum are
Non-U.S. Citizens;
(b) With respect to an entity that is a partnership, all general
partners of such entity are U.S. Citizens;
(c) With respect to an entity that is an association, (x) all
the members of such entity are U.S. Citizens, (y) the chief
executive officer, by whatever title, of such entity and the
chairman of such entity's board of directors (or equivalent
committee or body) are U.S. Citizens and all
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officers authorized to act in their absence or disability are
U.S. Citizens and (z) no more than a minority of the number of
directors (or the equivalent) of such entity necessary to
constitute a quorum are Non-U.S. Citizens;
(d) With respect to an entity that is a joint venture, (x) such
entity has not been determined by the Citizenship Approval
Officer to be a partnership or an association and (y) each member
of the venture is a U.S. Citizen;
(e) With respect to an entity that is a trust, (x) such trust is
domiciled in the United States or in a State, (y) the trustee of
such trust is a U.S. Citizen and (z) all beneficiaries of such
trust are persons eligible to document vessels pursuant to the
requirements of 46 U.S.C. 12102; and
(f) With respect to an entity that is a limited liability
company that is not found to be in effect a general partnership
requiring all general partners to be U.S. Citizen, (x) any Person
elected to manage such entity or who is authorized to bind such
entity and any Person who holds a position equivalent to the
chief executive officer, by whatever title, of such entity and
the chairman of such entity's board of directors (or equivalent
committee or body) are U.S. Citizens and (y) no Non-U.S. Citizens
have authority within a management group , whether through veto
power, combined voting or otherwise, to exercise control over
such entity.
If a Person is owned by 30 or fewer equity holders, it may demonstrate that
75% of the equity interest of each class of its equity is owned by U.S. Citizens
if such Person provides an affidavit that sets forth (i) the identity of such
Person's equity holders, (ii) the amount (by number and percentage) of its
equity that each equity holder holds, (iii) a representation as to whether such
equity holder is a U.S. Citizen, and (iv) if any equity holder of such Person is
a corporation or other entity, the names and citizenship of each officer,
director and stockholder. If a Person is owned by 30 or more equity holders, it
may demonstrate that 75% of its equity interests is owned by U.S. Citizens if
such Person provides an affidavit that demonstrates that at least 95% of each of
its classes of equity is held by equity holders with U.S. addresses.
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ANNEX I
MARAD Citizenship Affidavit
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