1
[Form of Debt Security Underwriting Agreement]
$[ ]
Atlas Air, Inc.
[ ]% Senior Notes due [ ]
UNDERWRITING AGREEMENT
, 2001
2
FORM OF
UNDERWRITING AGREEMENT
, 2001
[UNDERWRITERS' ADDRESS]
Ladies and Gentlemen:
Atlas Air, Inc., a Delaware corporation (the "Company"),
hereby confirms its agreement with you (the "Underwriters"), as set forth below.
1. The Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Underwriters (the
"Offering") $[ ] aggregate principal amount of its Senior Notes due [ ] (the
"Notes" or "Securities"). The Notes will be issued pursuant to an indenture (the
"Indenture") to be entered into by the Company, as issuer, and State Street Bank
and Trust Company, as trustee (the "Trustee").
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 and a related
preliminary prospectus for the registration of the Securities under the
Securities Act of 1933, as amended (the "Act"), and has filed such amendments
thereto, if any, as may have been required prior to the date hereof. Such
registration statement, as amended at the date of the Agreement, meets the
requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all
other material respects with said rule.
As used in this Agreement, the term "Registration Statement"
means such registration statement, as amended at the time when it was or is
declared effective, including any 462(b) Registration Statement (as defined) and
including all financial statements and schedules and exhibits thereto and
including any information omitted therefrom pursuant to Rule 430A ("Rule
3
-2-
430A") under the Rules and Regulations (as defined), if applicable, and included
in the Prospectus (as defined); the term "Preliminary Prospectus" means each
prospectus relating to the Securities filed with such registration statement or
any amendment thereto (including the prospectus, if any, included in such
registration statement or any amendment thereto at the time it was or is
declared effective; and the term "Prospectus" means the prospectus relating to
the Securities filed with the Registration Statement with the Commission
pursuant to Rule 430A and Rule 424(b) ("Rule 424(b)") under the Rules and
Regulations, if required, or, if no prospectus is required to be filed pursuant
to Rule 430A or Rule 424(b), such term means the prospectus included in such
Registration Statement. All references in this Agreement to the Registration
Statement, Preliminary Prospectus and Prospectus and to financial statements and
schedules and other information that is "contained," "included," "set forth,"
"described in" or "stated" therein (and all other references of like import)
shall be deemed to mean and include all such financial statements and schedules
and other information that is or is deemed to be incorporated by reference
therein; and all references in this Agreement to amendments or supplements to
the Registration Statement, the Preliminary Prospectus or the Prospectus shall
be deemed to mean and include the filing of any document under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), that is or is deemed to be
incorporated by reference therein.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 has been filed with
the Commission with respect to the Securities (File No. ), including
the form of prospectus, together with all amendments thereto, and has
been prepared by the Company in conformity in all material respects
with the requirements of the Act and the rules and regulations (the
"Rules and Regulations") of the Commission thereunder and the Company
meets all the requirements for filing on Form S-3. The Registration
Statement at the time it was or will be declared effective and at the
Closing Date (as defined) complies and will comply in all material
respects with the requirements of the Act and the Rules and
Regulations.
4
-3-
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus nor instituted any
proceeding for such purpose. When any Preliminary Prospectus was filed
with the Commission it (x) complied in all material respects with the
requirements of the Act and (y) did not include 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. When the Registration Statement
or any amendment thereto was or is declared effective and on the
Closing Date, it did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, and any amendments or supplements thereto on the date first
filed with the Commission pursuant to Rule 424(b) (or if not so filed,
on the date the Registration Statement or the amendment thereto
containing the Prospectus or amendment or supplement to the Prospectus
was or is declared effective) and on the Closing Date, (i) complied and
will comply in all material respects with the requirements of the Act
and the Rules and Regulations and (ii) did not and will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The foregoing provisions of this paragraph (b) do not
apply to statements or omissions in the Registration Statement or any
amendment thereto or the Prospectus or any amendment or supplement
thereto made in reliance upon and in conformity with written
information with respect to the Underwriters furnished to the Company
by the Underwriters specifically for use therein.
The foregoing provisions of this paragraph (b) do not apply to
statements or omissions made in any Preliminary Prospectus, the
Registration Statement or any amendment
5
-4-
thereto or the Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to
the Company by the Underwriters specifically for use therein or to the
Statement of Eligibility and Qualification (the "Form T-1") under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of
the Trustee filed as exhibits to the Registration Statement.
(c) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations (the "1934 Act Regulations") of the Commission thereunder,
and when read together with the other information in the Prospectus, at
the time the Registration Statement and any amendments thereto became
or become effective and at the Closing Date, did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(d) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and to perform its obligations under this Agreement,
the Indenture and the Notes; the Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect").
(e) The Company's only subsidiaries are Atlas One, Inc., Atlas
Freighter Leasing, Inc., Atlas Freighter Leasing II, Inc., Atlas
Freighter Leasing III, Inc., Atlas Air
6
-5-
Crew Services Limited, Atlas Flightlease, Inc., Genessee Insurance
Company, Atlas Air Worldwide Holdings, Inc., LHC Properties, Inc. and
AtlasAir Services and Products (A.S.A.P.), Inc. (collectively, the
"Subsidiaries"). Each Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation with corporate power and authority
under such laws to own, lease and operate its properties and conduct
its business; and each Subsidiary is duly qualified to transact
business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in
good standing would not have a Material Adverse Effect. All of the
outstanding shares of capital stock of each Subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable and
are owned by the Company free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind.
(f) The Company has all requisite corporate power and
authority to execute, deliver and perform each of its obligations under
the Notes. The Notes have been duly and validly authorized by the
Company for issuance and conform in all material respects to the
description thereof in the Prospectus. The Notes, when executed by the
Company 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 have been duly
executed, issued and delivered and will constitute valid and legally
binding obligations of the Company, except that the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought (regardless of whether such enforcement is considered in a
proceeding in equity or at law), (iii) the unenforceability,
7
-6-
under certain circumstances, of provisions imposing penalties,
forfeitures, late payment charges or an increase in interest rate upon
delinquency in payment or the occurrence of a default, and (iv) the
unenforceability of any provision requiring the payment of attorneys'
fees, except to the extent that a court determines such fees to be
reasonable (each of clauses (i), (ii), (iii) and (iv), an
"Enforceability Limitation").
(g) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Indenture. The Indenture has been duly authorized by the Company and,
when executed and delivered by the Company (assuming the due
authorization, execution and delivery thereof by the Trustee), will
constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except
that the enforcement thereof may be subject to the Enforceability
Limitations. The Indenture has been qualified under the Trust Indenture
Act and complies as to form in all material respects with the
requirements of the Trust Indenture Act.
(h) The Company is a "citizen of the United States" (as
defined in Section 40102(a)(15) of Title 49 of the United States Code,
as amended) and is an air carrier operating under a certificate issued
by the Secretary of Transportation pursuant to Chapter 447 of Title 49,
United States Code, for aircraft capable of carrying 10 or more
individuals or 6,000 pounds or more of cargo. There is in force with
respect to the Company an air carrier operating certificate issued
pursuant to Part 121 of the regulations under the sections of ▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, relating to aviation (the "Federal Aviation Act").
All of the outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and
non-assessable.
(i) There has not occurred any material adverse change in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and the Subsidiaries, taken as a whole, from
that set forth in the Prospectus.
8
-7-
(j) The Securities conform in all material respects to the
description thereof contained in the Prospectus under the heading
"Description of Debt Securities."
(k) The consolidated financial statements included or
incorporated by reference in the Prospectus present fairly the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the consolidated results of
operations and cash flows or changes in financial position of the
Company and its consolidated subsidiaries for the periods specified.
Such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved.
(l) The Company and the Subsidiaries possess adequate
certificates, authorities and permits issued by appropriate
governmental agencies or bodies necessary to conduct, in all material
respects, the business now operated by them and have not received any
notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit that would, individually or in
the aggregate, have a Material Adverse Effect.
(m) The statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company and
the Subsidiaries believe to be reliable and accurate.
(n) Except as accurately described in all material respects in
the Prospectus and except as would not have a Material Adverse Effect
and would not materially and adversely affect the ability of the
Company to perform its obligations under this Agreement, the Notes and
the Indenture, or to consummate the transactions contemplated by the
Prospectus, there are no legal or governmental proceedings pending or,
to the best knowledge of the Company, threatened to which the Company
or any of the Subsidiaries
9
-8-
is or may be a party or to which any of the properties of the Company
or any of the Subsidiaries is or may be subject.
(o) Except as described in the Prospectus, no consent,
approval, authorization or order of any court or governmental agency or
body is required for the performance of this Agreement, the Notes or
the Indenture, by the Company or its Subsidiaries, except such as have
been obtained or are contemplated to be obtained by the Prospectus and
such as may be required under the Act, the Trust Indenture Act or state
securities or "Blue Sky" laws in connection with the purchase and
distribution of the Notes by the Underwriters. Each of the Company and
the Subsidiaries has complied with all laws, regulations and orders
applicable to it or its business, except for any violation of such
laws, regulation or orders which would not have a Material Adverse
Effect. Each of the Company and the Subsidiaries has performed in all
material respects all of the obligations required to be performed by
it, and is not in default under any indenture, mortgage, deed of trust,
voting trust agreement, loan agreement, letter of credit agreement,
bond, debenture, note agreement or other evidence of indebtedness,
lease, contract or other agreement or instrument to which it is a party
or by which it or any of its property is bound (collectively, the
"Contracts"), except for such failures to perform or defaults as would
not have a Material Adverse Effect, and, to the knowledge of the
Company, no other party under any such Contracts is in material default
in any respect thereunder, except for such defaults as would not have a
Material Adverse Effect.
(p) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby. This
Agreement and the consummation by the Company of the transactions
contemplated hereby have been duly authorized by the Company. This
Agreement has been duly executed and delivered by the Company; no
consent, approval, authorization or order of any court or governmental
agency or body is required for the consummation by the Company of the
transactions on its
10
-9-
part herein contemplated, except such as may have been obtained under
the Act or otherwise and such as may be required under state securities
or "Blue Sky" laws; the performance of this Agreement and the
consummation of the transactions contemplated hereby will not conflict
with or result in a breach or violation of any of the terms and
provisions of or constitute a default under the Certificate of
Incorporation or By-laws of the Company. Except, in each case, for
instances that would not result in a Material Adverse Effect or a
material adverse effect on the ability of the Company to perform its
obligations under this Agreement, the performance of this Agreement and
consummation of the transactions contemplated hereby will not conflict
with or result in a breach or violation of any of the terms and
provisions of or constitute a default under or result in the creation
or imposition of any lien, charge or encumbrance upon the assets or
properties of the Company or any Subsidiary, pursuant to any Contract,
statute, order, rule or regulation applicable to the Company or any
Subsidiary or their respective businesses or properties or of any court
or other governmental body.
(q) Each of the Company and the Subsidiaries has good and
marketable title to all properties and assets described in the
Prospectus as owned by it, free and clear of all liens, charges,
encumbrances or restrictions, except such as are described in or
referred to in the Prospectus or as would not have a Material Adverse
Effect.
(r) The Company is not, and after giving effect to the
transactions contemplated hereby or the Notes Offering (as defined)
will not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment Company
Act").
(s) None of the Company, the Subsidiaries or an agent acting
on their behalf has taken or will take any action that might cause this
Agreement or the sale of the Securities to violate Regulation T, U or X
of the Board of Governors of the Federal Reserve System.
11
-10-
(t) Except as described in the Prospectus, no labor problem
exists with the Company's employees or with employees of any Subsidiary
or, to the best knowledge of the Company, is imminent that could
reasonably be expected to have a Material Adverse Effect, and the
Company is not aware of any existing or imminent labor disturbance by
the employees of any of its or any subsidiary's principal contractors
or customers that could reasonably be expected to have a Material
Adverse Effect.
(u) The Company and the Subsidiaries (A) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (B) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (C) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
Material Adverse Effect.
(v) Each of the Company and the Subsidiaries carries insurance
in such amounts and covering such risks as it deems reasonable for the
conduct of its business and the value of its properties.
3. Purchase, Sale and Delivery of the Securities. On the basis
of the representations, warranties, agreements and covenants herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Underwriters, and each of the Underwriters severally
agrees to purchase from the Company, at [ ] of their principal amount, the
respective aggregate principal amounts of the Notes set forth opposite their
respective names on Schedule I hereto. The obligations of the Underwriters under
this Agreement are several and not joint. One or more certificates in definitive
form for the Notes that the Underwriters have agreed to purchase
12
-11-
hereunder, and in such denomination or denominations and registered in such name
or names as each Underwriter requests upon notice to the Company at least two
business days prior to the Closing Date, shall be delivered by or on behalf of
the Company, against payment by or on behalf of the Underwriters, of the
purchase price therefor (less an amount equivalent to payment of interest at the
then applicable Federal Funds Rate on the purchase price of the Securities for
one (1) day) by wire transfer or check of immediately available funds to the
account of the Company previously designated by it in writing. Such delivery of
and payment for the Securities shall be made at the offices of [ ]
at 10:00 a.m. local time, on [ ], 2001 or at such other place, time or
date as the Underwriters and the Company may agree upon or as the Underwriters
may determine pursuant to Section 7(a) hereof, such time and date of delivery
against payment being herein referred to as the "Closing Date." The Company will
make such certificate or certificates for the Notes available for checking and
packaging by the Underwriters at the offices in New York, New York of
[ ] at least 24 hours prior to the Closing Date.
4. Offering by the Underwriters. After the Prospectus has been
filed pursuant to Rule 424(b), the Underwriters propose to offer for sale to the
public the Securities at the price and upon the terms set forth in the
Prospectus relating to the Securities.
5. Covenants of the Company. The Company covenants and agrees
with the Underwriters that:
(a) If required, the Company will file the Prospectus and any
amendments or supplements thereto with the Commission in the manner and
within the time period required by Rule 424(b) (but only if the
Underwriters or their counsel have not reasonably objected thereto
promptly after having been furnished a copy thereof a reasonable time
prior to the proposed filing thereof). During any time when a
prospectus relating to the Securities is required to be delivered under
the Act, the Company (i) will comply with all requirements imposed upon
it by the Act and the Rules and Regulations to the extent neces-
13
-12-
sary to permit the continuation of sales of or dealings in the
Securities in accordance with the provisions hereof and of the
Prospectus, as then amended or supplemented, and (ii) will not file
with the Commission the Prospectus or the amendment referred to in the
second sentence of Section 2(a) hereof or any amendment or supplement
to such Prospectus or any amendment to the Registration Statement of
which the Underwriters and their counsel shall not previously have been
advised and furnished a copy for a reasonable period of time prior to
the proposed filing and as to which filing the Underwriters and their
counsel shall not have given their respective consent, which consent
will not be unreasonably withheld or delayed. The Company will prepare
and will file with the Commission, in accordance with the Act and the
Rules and Regulations, promptly upon request by the Underwriters or
counsel for the Underwriters, any amendments to the Registration
Statement or amendments or supplements to the Prospectus that may be
necessary or reasonably advisable in connection with the distribution
of the Securities by the Underwriters, and the Company will use its
reasonable best efforts to cause any such amendment to the Registration
Statement to be declared effective by the Commission promptly. The
Company will advise the Underwriters, promptly after it receives notice
thereof, of the time when the Registration Statement or any amendment
thereto has been filed or declared effective or the Prospectus or any
amendments or supplements thereto have been filed.
(b) The Company will advise the Underwriters, promptly after
receiving notice or obtaining knowledge thereof, of (i) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any amendment thereto or any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus,
or any amendments or supplements thereto, (ii) the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, (iii) the institution, threat or contemplation of any
proceeding for any such purpose or (iv) any request made by the
Commission for amending the Registration Statement, for amending or
14
-13-
supplementing the Prospectus or for additional information. The Company
will use its reasonable best efforts to prevent the issuance of any
such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(c) The Company will cooperate with the Underwriters in
arranging for the qualification of the Securities for offering and sale
under the securities or "Blue Sky" laws of such jurisdictions in the
United States and Canada as the Underwriters may designate and will
continue such qualifications in effect for as long as may be necessary
to complete the distribution of the Securities; provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to execute a general consent to service of
process in any jurisdiction or to subject itself to taxation in respect
of doing business in any jurisdiction in which it is not otherwise
subject.
(d) During such time as a prospectus relating to the
Securities is required to be delivered under the Act, if after due
inquiry, the Company should become aware of any event that occurs, and
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
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if the Company should be of the opinion
that for any other reason it is necessary at any time to amend or
supplement the Prospectus to comply with the Act or the Rules and
Regulations, the Company will promptly notify the Underwriters and
their counsel thereof and the Company will prepare and, subject to
Section 5(a) hereof, will file with the Commission, at its sole
expense, an amendment to the Registration Statement or an amendment or
supplement to the Prospectus (in form and substance reasonably
satisfactory to the Underwriters and their counsel and in compliance
with the Act and the Rules and Regulations) so that the Prospectus as
so supplemented or amended will not contain an untrue statement of
material fact or omit to state a
15
-14-
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or so that the Prospectus will comply with
law, and will deliver to the Underwriters, without charge, such number
of copies thereof as they may reasonably request.
(e) The Company will, without charge, provide (i) to the
Underwriters and to their counsel a signed copy of the registration
statement originally filed and each amendment thereto (in each case
including exhibits thereto) and the Registration Statement and (ii) so
long as a prospectus relating to the Securities is required to be
delivered under the Act, as many copies of each Preliminary Prospectus
and the Prospectus relating to the Securities and any amendment or
supplement thereto as each Underwriter may reasonably request.
(f) The Company will make generally available to holders of
the Securities and the Underwriters as soon as practicable, but not
later than 90 days after the close of the period covered thereby, an
earnings statement of the Company (in form complying with the
provisions of Section 11(a) of the Act and Rule 158 thereunder),
covering a period of 12 months beginning after the date of the
Prospectus and covering a period of 12 months beginning after the date
of any amendment to the Prospectus but not later than the first day of
the Company's fiscal quarter next following such respective dates.
(g) For and during the period ending five years after the
effective date of the Registration Statement, the Company will furnish
to the Underwriters copies of all reports and other communications
(financial or otherwise) furnished by the Company to its
securityholders generally and copies of any reports or financial
statements furnished to or filed by the Company with the Commission or
any national securities exchange on which any class of securities of
the Company may be listed.
(h) Prior to the Closing Date, the Company will furnish to the
Underwriters, as soon as they have been pre-
16
-15-
pared and are available, a copy of any unaudited interim consolidated
financial statements of the Company and any pro forma information
prepared in respect of any period subsequent to the period covered by
its most recent financial statements included in the Registration
Statement and the Prospectus.
(i) The Company will not at any time, directly or indirectly,
take any action designed, or that might reasonably be expected, to
cause or result in, or that will constitute, stabilization or
manipulation of the price of the Notes to facilitate the sale or resale
of any of the Securities in violation of the 1934 Act.
(j) The Company will apply the net proceeds from the sale of
the Securities as set forth in the Prospectus.
6. Expenses. The Company agrees to pay all costs and expenses
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated herein are consummated or this Agreement is
terminated, as provided in this Section 6 including all costs and expenses
incident to (i) the printing or other production of documents with respect to
the transactions, including any costs of printing the registration statement
originally filed with respect to the Securities and any amendment thereto and
the Registration Statement, any Preliminary Prospectus and the Prospectus and
any amendment or supplement thereto, (ii) the printing (or reproduction) and
delivery of this Agreement, the Securities, any Blue Sky Memoranda and all other
documents and agreements printed (or reproduced) and delivered in connection
with the offering of the Securities, (iii) all arrangements relating to the
delivery to the Underwriters of copies of the foregoing documents, (iv) the fees
and disbursements of the counsel, the accountants and any other experts or
advisors retained by the Company or its subsidiaries, (v) preparation (including
printing), issuance and delivery to the Underwriters of certificates evidencing
the Securities, (vi) the qualification of the Securities in the United States
and Canada under state securities and "Blue Sky" laws, including filing fees and
reasonable fees and disbursements of counsel for the Underwriters relating
thereto, (vii) the filing fees of the Commission and the New York Stock
Exchange, Inc. re-
17
-16-
lating to the Securities, (viii) expenses of the Company and its subsidiaries in
connection with any meetings with prospective investors in the Securities, (ix)
advertising relating to the offering of the Securities (other than as shall have
been specifically approved in writing by the Underwriters to be paid by the
Underwriters), (x) the fees and expenses of the Trustee, including fees and
expenses of its counsel, (xi) any fees charged by investment rating agencies for
the rating of the Securities and (xii) the costs and expenses incident to the
performance by the Company of its obligations hereunder and in connection with
the offer, sale and delivery of the Securities to be sold by it, including any
stock transfer taxes payable upon the sale of such Securities to the
Underwriters.
If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 7 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 10 hereof or because of any failure, refusal or inability on
the part of the Company to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder (other than solely by reason of
a default by the Underwriters of their obligations hereunder after all
conditions hereunder have been satisfied in accordance herewith), the Company
will promptly reimburse the Underwriters upon demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel
for the Underwriters) that shall have been incurred by the Underwriters in
connection with the proposed purchase and sale of the Securities not so
delivered.
7. Conditions of the Underwriters' Obligations. The obligation
of the Underwriters to purchase and pay for the Securities on the Closing Date
shall be subject to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement or any amendment thereto or the qualification of
the Indenture under the Trust Indenture Act shall have been issued and
no proceedings for that purpose shall have been instituted or to the
knowledge of the Company or the Underwriters, shall be threatened or
contemplated by the Commission.
18
-17-
(b) The Underwriters shall have received an opinion, in form
and substance satisfactory to the Underwriters, dated the Closing Date
and addressed to the Underwriters, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel
for the Company, to the effect that:
(i) The Company is duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware with corporate power and authority to own its
properties and to conduct its business as described in the
Registration Statement and the Prospectus.
(ii) No authorization, approval, consent or license
of any state or federal governmental or regulatory body,
except as may be required under the Act, applicable "Blue Sky"
laws or the rules and regulations of the New York Stock
Exchange, Inc., is required in connection with the (A)
authorization, issuance, transfer, sale or delivery of the
Securities under this Agreement; (B) execution, delivery and
performance of this Agreement by the Company; (C) taking of
any action contemplated herein or in the Registration
Statement or Prospectus, or if so required all such
authorizations, approvals, consents and licenses, specifying
the same, have been obtained and are in full force and effect.
(iii) The Company has the authorized and outstanding
capital stock, and, to the knowledge of such counsel, stock
options and warrants as set forth in the Registration
Statement and the Prospectus. The outstanding shares of
capital stock are duly authorized, validly issued, fully paid
and nonassessable.
(iv) The Company is not an "investment company" as
defined in Section 3(a) of the Investment Company Act.
(v) The Company has full corporate power and
authority to enter into this
19
-18-
Agreement and this Agreement has been duly authorized,
executed and delivered by the Company.
(vi) The Registration Statement and the Prospectus,
and each amendment thereof or supplement thereto, comply in
all material respects as to form with the requirements of the
Act and the Rules and Regulations (except that no opinion need
be expressed as to financial statements, financial statement
notes and other financial and statistical data contained in
the Registration Statement or the Prospectus).
(vii) The descriptions in the Registration Statement
and Prospectus of contracts and other documents are accurate
in all material respects and fairly present the information
required to be shown; and such counsel does not know of any
contracts or documents of a character required to be described
in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement (including, for
this purpose, all exhibits filed with respect to any document
incorporated by reference therein) that are not described or
filed as required; it being understood that such counsel need
express no opinion as to the financial statements, financial
notes or schedules or other financial or statistical data
included therein.
(viii) The Registration Statement has become
effective under the Act, and, to the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or are threatened, pending
or contemplated. All filings required by Rule 424 and Rule
430A of the Rules and Regulations have been made.
(ix) The execution and delivery of this Agreement by
the Company, the consummation by the Company of the
transactions herein contemplated and the compliance with the
terms of this Agreement do not and will not conflict with or
result in a breach of any
20
-19-
of the terms or provisions of or violate or constitute a
default under, the Certificate of Incorporation or By-laws of
the Company, or, except, in each case, for instances that
would not result in a Material Adverse Effect or a material
adverse effect on the ability of the Company to perform its
obligations under this Agreement, any material indenture or
mortgage known to such counsel or other material agreement or
instrument known to such counsel to which the Company is a
party or by which the Company or its properties is bound, or
any existing federal or New York state statute, rule or
regulation, or any judgment, order or decree known to such
counsel, of any government, governmental instrumentality or
Federal or New York State court, domestic or foreign, having
jurisdiction over the Company or any of its properties.
Such counsel has participated in the preparation of the
Registration Statement and Prospectus. Although such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and Prospectus on the basis of the foregoing
(relying as to materiality to a large extent on discussions with, and
representations and opinions of officers and other representatives of
the Company), no facts have come to the attention of such counsel to
lead them to believe (A) that the Registration Statement or any
amendment thereto (except for the financial statements and other
financial or statistical data included therein or omitted therefrom, as
to which such counsel need express no opinion), at the time the
Registration Statement or any such amendment became effective,
contained or contains an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or (B) that the Prospectus
or any amendment or supplement thereto (except for the financial
statements and other financial or statistical data included therein or
omitted therefrom, as to which such counsel need express no opinion),
at the time the
21
-20-
Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Date, included or includes an
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
In rendering the foregoing opinions, such counsel may (i)
state that their opinion is limited to matters governed by the federal
laws of the United States of America, the laws of the State of New York
and the corporate laws of the State of Delaware and (ii) rely, to the
extent such counsel deems proper, upon the representations set forth
herein and on certificates of public officials and officers of the
Company, with respect to the accuracy of factual matters contained
therein which were not independently established.
(c) The Underwriters shall have received an opinion of ▇▇▇▇▇▇
▇▇▇▇▇, General Counsel for the Company, dated as of the Closing Date,
in form and substance satisfactory to the Underwriters, to the effect
that:
(i) The Company is duly qualified to transact
business as a foreign corporation and is in good standing in
each other jurisdiction in the United States in which it owns
or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to
the extent that the failure to so qualify or be in good
standing would not have a Material Adverse Effect on the
Company and its Subsidiaries, considered as one enterprise.
(ii) Each Subsidiary is a corporation duly organized
under the laws of its jurisdiction of incorporation and is
duly qualified to transact business as a foreign corporation
and is in good standing in each other jurisdiction in which it
owns or leases property of a nature, or transacts business of
a type, that would make such qualification necessary,
22
-21-
except to the extent that the failure to so qualify or be in
good standing would not have a Material Adverse Effect on the
Company and its Subsidiaries, considered as one enterprise.
(iii) Such counsel does not know of any statutes or
regulations, or any pending or threatened legal or
governmental proceedings, required to be described in the
Prospectus that are not described as required, nor of any
contracts or documents of a character required to be described
or referred to in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement that
are not described, referred to or filed as required.
(iv) All of the issued and outstanding shares of the
capital stock of each Subsidiary are validly issued, fully
paid and nonassessable and, to such counsel's knowledge, all
of the issued and outstanding shares of stock of each
Subsidiary are owned by the Company free and clear of all
mortgages, pledges, liens, security interests, conditional
sales agreements, charges and encumbrances of every nature.
(v) The Company possesses all state and federal
authorizations, approvals, consents and licenses necessary for
the operations of its business except for such authorizations,
approvals, consents and licenses the failure to possess which
would not have a Material Adverse Effect.
(vi) The Company is an "air carrier" and a "citizen
of the United States" within the meaning of Section
40102(a)(15) of Title 49 of the United States Code, as
amended, holding an air carrier operating certificate issued
by the Secretary of Transportation pursuant to Chapter 447 of
Title 49 of the United States Code, as amended, for aircraft
capable of carrying 10 or more individuals or 6,000 pounds or
more of cargo.
23
-22-
(vii) To the knowledge of such counsel, except as
disclosed in the Prospectus, there is no event of default
under any material agreement or instrument under which
indebtedness of the Company is outstanding or by which it is
bound or any of its properties is subject.
Such counsel has participated in the preparation of the
Registration Statement and Prospectus. Although such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and Prospectus, on the basis of the foregoing
(relying as to materiality to a large extent on discussions with, and
representations and opinions of, officers and other representatives of
the Company), no facts have come to the attention of such counsel to
lead him to believe (A) that the Registration Statement or any
amendment thereto (except for the financial statements and other
financial or statistical data included therein or omitted therefrom, as
to which such counsel need express no opinion), at the time the
Registration Statement or any such amendment became effective,
contained or contains an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or (B) that the Prospectus
or any amendment or supplement thereto (except for the financial
statements and other financial or statistical data included therein or
omitted therefrom, as to which such counsel need express no opinion),
at the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Date, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
In rendering the foregoing opinions, such counsel may (i)
state that his opinion is limited to matters governed by the federal
laws of the United States of America, the laws of the State of Colorado
and the corporate laws of
24
-23-
the State of Delaware and (ii) rely, to the extent such counsel deems
proper, upon the representations set forth herein and on certificates
of public officials and officers of the Company, with respect to the
accuracy of factual matters contained therein which were not
independently established.
(d) The Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP a letter dated the date hereof and the Closing Date and addressed
to the Underwriters, in form and substance reasonably satisfactory to
the Underwriters.
(e) The representations and warranties of the Company
contained in this Agreement shall be true and correct in all material
respects on and as of the date hereof and on and as of the Closing
Date, as if made on and as of such date; the statements of the
Company's officers made pursuant to any certificate delivered in
accordance with the provisions hereof shall be true and correct in all
material respects on and as of the date of the delivery of such
certificate and as of any date referred to therein; the Company shall
have complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date; and subsequent to the date
of the most recent financial statements in the Prospectus, there shall
have been no Material Adverse Change.
(f) The sale of the Securities by the Company hereunder shall
not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the respective dates as of which information
is given in the Prospectus, except in each case as described in the
Prospectus, none of the Company, or the Subsidiaries shall have
incurred any liabilities or obligations, direct or contingent (other
than in the ordinary course of business), that are material to the
Company and the Subsidiaries, taken as a whole, and there shall not
have been any adverse change in the capital stock or long-term
indebtedness of the Company and its Subsidiaries
25
-24-
that is material to the Company and the Subsidiaries, taken as a whole.
(h) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, the conduct
of the business and operations of each of the Company and its
Subsidiaries shall not have been interfered with by strike, fire,
flood, hurricane, accident or other calamity (whether or not insured)
or by any court or governmental action, order or decree, and, except as
otherwise stated therein, the properties of each of the Company and its
Subsidiaries shall not have sustained any loss or damage (whether or
not insured) as a result of any such occurrence, except any such
interference, loss or damage that would not have a Material Adverse
Effect.
(i) The Underwriters shall have received certificates, in form
and substance reasonably satisfactory to the Underwriters and [ ],
counsel for the Underwriters, dated the Closing Date, and addressed to
the Underwriters, of the Company, executed by its chief executive
officer or president and the chief financial officer or chief
accounting officer, to the effect that:
(i) The representations and warranties of the Company
in this Agreement are true and correct in all material
respects as if made on and as of the Closing Date, and the
Company has performed in all material respects all covenants
and agreements and satisfied all conditions to be performed or
satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of
the Registration Statement or any amendment thereto has been
issued, and, to the best of such officers' knowledge, no
proceedings for those purposes have been instituted or
threatened or are contemplated by the Commission;
(iii) Subsequent to the respective dates as of which
information is given in the Registration State-
26
-25-
ment and the Prospectus, the Company and the Subsidiaries have
not sustained any material loss or interference with their
respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or
governmental proceeding and there has not been any material
change in the capital stock, long-term debt, obligations under
capital leases or short-term borrowings or other agreements or
instruments relating to the ownership of the property of the
Company and the Subsidiaries or any Material Adverse Effect,
or any development which would be reasonably likely to have a
Material Adverse Effect, except in each case as described in
or contemplated by the Prospectus;
(iv) To the best of such officers' knowledge and
belief, the sale of the Securities by the Company has not been
enjoined (temporarily or permanently); and
(v) No stop order suspending the effectiveness of the
Registration Statement or any amendment thereto or the
qualification of the Indenture under the Trust Indenture Act
has been issued, and no proceedings for those purposes have
been instituted or, to the best of such person's knowledge,
are threatened or contemplated by the Commission.
(j) On or before the Closing Date, the Underwriters and [ ],
counsel for the Underwriters, shall have received such further
documents, opinions, certificates and schedules or instruments relating
to the business, corporate, legal and financial affairs of the Company
and each of its Subsidiaries as they shall have heretofore reasonably
requested.
All such opinions, certificates, letters, schedules, documents
or instruments delivered pursuant to this Agreement will comply with the
provisions hereof only if they are reasonably satisfactory in all respects to
the Underwriters and [ ], counsel for the Underwriters.
The Company and each of its Subsidiaries shall furnish to the Under-
27
-26-
writers such conformed copies of such opinions, certificates, letters,
schedules, documents and instruments in such quantities as the Underwriters
shall reasonably request.
8. Indemnification and Contribution.
(a) The Company and each of the Subsidiaries, jointly and
severally, agree to indemnify and hold harmless each Underwriter, and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the 1934 Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as any such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any
amendment thereto or any Preliminary Prospectus or the Prospectus or
any amendments or supplements thereto or (B) any application or other
document, or any amendment or supplement thereto, executed by the
Company or based upon written information furnished by or on behalf of
the Company filed in any jurisdiction in order to qualify the
Securities under the securities or "Blue Sky" laws thereof or filed
with the Commission or any securities association or securities
exchange (each an "Application"); or
(ii) the omission or alleged omission to state in such
Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or
any Application, a material fact required to be stated therein or
necessary to make the statements therein not misleading,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any reasonable legal or other out-of-pocket expenses reasonably
incurred by any such Underwriter or any such controlling person in connection
with investigating or defending against or appearing as a third-party witness in
con-
28
-27-
nection with any such loss, claim, damage, liability or action in respect
thereof; provided that the Company will not be liable in any such case to the
extent, but only to the extent, that any such loss, claim, damage, or liability
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in such Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendments or supplements thereto, or any Application in reliance upon and in
conformity with written information furnished to the Company by the Underwriters
through the Underwriters with respect to the Underwriters specifically for use
therein; provided, further, that the Company and each of the Subsidiaries will
not be liable to any Underwriter if such untrue statement or omission or alleged
untrue statement or omission was contained or made in any Preliminary Prospectus
and completely corrected in the Prospectus and any such loss, liability, claim,
damage or expense suffered or incurred by any Underwriter resulted from any
action, claim or suit by any person who purchased Securities that are the
subject thereof from any Underwriter and such Underwriter failed to deliver or
provide a copy of the Prospectus relating to the Securities to such person with
or prior to the confirmation of the sale of such Securities sold to such person
in any case where delivery is required by the Act or the Rules and Regulations,
unless such failure to deliver or provide a copy of the Prospectus relating to
the Securities was a result of noncompliance by the Company with Section
5(e)(ii) of this Agreement. This indemnity agreement will be in addition to any
liability that the Company and each of the Subsidiaries may otherwise have to
the indemnified parties. The Company and each of the Subsidiaries shall not be
liable under this Section 8 for any settlement of any claim or action effected
without its prior written consent, which shall not be unreasonably withheld. The
Underwriters shall not, without the prior written consent of the Company, effect
any settlement or compromise of any pending or threatened proceeding in respect
of which the Company is or could have been a party, or indemnity could have been
sought hereunder by the Company, unless such settlement (A) includes an
unconditional written release of the Company, in form and substance reasonably
satisfactory to the Company, from all such liability on claims that are the
subject matter of such proceeding and (B) does not include
29
-28-
any statement as to an admission of fault, culpability or failure to act by or
on behalf of the Company.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors and each of its officers who signed
the Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the 1934 Act
against any losses, claims, damages or liabilities to which the Company, or any
such director, officer or controlling person may become subject under the Act,
the 1934 Act, or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or any
Application or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or any Application, 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 reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Underwriters
specifically for use therein; and, subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action in respect thereof. This indemnity agreement will be
in addition to any liability that the Underwriters may otherwise have to the
indemnified parties. No Underwriter shall be liable under this Section 8 for any
settlement of any claim or action effected without its prior written consent,
which shall not be unreasonably withheld. The Company shall not, without the
prior written consent of the applicable Underwriter, effect any settlement or
compromise of any pending or threatened proceeding in respect of which such
Underwriter is
30
-29-
or could have been a party, or indemnity could have been sought hereunder by
such Underwriter, unless such settlement (A) includes an unconditional written
release of such Underwriter, in form and substance reasonably satisfactory to
such Underwriter, from all such liability on claims that are the subject matter
of such proceeding and (B) does not include any statement as to an admission of
fault, culpability or failure to act by or on behalf of such Underwriter.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 8, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party of the commencement
thereof, but the omission so to notify the indemnifying party (i) will not
relieve it from any liability under paragraph (a) or (b) above unless and to the
extent such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligations provided in paragraphs (a) and (b) above. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have been
advised by counsel that there may be one or more legal defenses available to it
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, then the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by
31
-30-
such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the immediately preceding
sentence (it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by any Underwriter in the
case of paragraph (a) of this Section 8 or the Company, in the case of paragraph
(b) of this Section 8, representing the indemnified parties under such paragraph
(a) or paragraph (b), as the case may be, who are parties to such action or
actions), (ii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party or (iii) the
indemnifying party shall have failed to assume the defense or retain counsel
reasonably satisfactory to the indemnified party. After such notice from the
indemnifying party to such indemnified party, the indemnifying party will not be
liable for the costs and expenses of any settlement of such action effected by
such indemnified party without the consent of the indemnifying party, which
consent shall not be unreasonably withheld.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 8 is for any reason unavailable
or insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i)
32
-31-
is not permitted by applicable law, not only such relative benefits but also the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof). The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as (x) the total proceeds from the offering (net of
underwriter's discounts and commissions but before deducting expenses) received
by the Company and (y) the total underwriting discounts and commissions received
by the Underwriters, respectively, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by an indemnified party or
parties on the one hand, or the indemnifying party or parties on the other, the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances. The Company and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Company on the one hand and the Underwriters on the other hand were treated as
one entity for such purpose) or by any other method of allocation that does not
take into account the equitable considerations referred to in the first sentence
of this paragraph (d). Notwithstanding any other provision of this paragraph
(d), no Underwriter shall be obligated to make contributions hereunder that in
the aggregate exceed the total underwriting discounts and commissions received
by such Underwriter under this Agreement, less the aggregate amount of any
damages that such Underwriter has otherwise paid or been required to pay by
reason of the untrue or alleged untrue statements or the omissions or alleged
omissions to state a material fact, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each per-
33
-32-
son, if any, who controls an Underwriter within the meaning of Section 15 of the
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, and each officer of the
Company who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the 1934 Act, shall have the same rights to contribution as the Company.
9. Survival Clause. The respective representations,
warranties, agreements, covenants, indemnities and other statements of the
Company, the Company's officers, and the Underwriters set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company or any of its officers or
directors, the Underwriters or any controlling person referred to in Section 8
hereof and (ii) delivery of and payment for the Securities. The respective
agreements, covenants, indemnities and other statements set forth in Sections 6
and 8 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
10. Termination.
(a) This Agreement may be terminated in the sole discretion of
the Underwriters by notice to the Company, given prior to the Closing Date, in
the event that the Company shall have failed, refused or become unable to
perform all obligations and satisfy all conditions on its part to be performed
or satisfied hereunder at or prior thereto or, if at or prior to the Closing
Date:
(i) trading in securities generally on the New York Stock
Exchange, Inc., the American Stock Exchange or the Nasdaq Stock Market
shall have been suspended or minimum or maximum prices shall have been
established on any such exchange;
(ii) a banking moratorium shall have been declared by New York
or United States authorities; or
34
-33-
(iii) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international
calamity or emergency or (C) any material change in the financial
markets of the United States which, in the sole judgment of the
Underwriters, makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities as contemplated by
the Registration Statement, as amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 10
shall be without liability of any party to any other party except as provided in
Section 9 hereof.
11. Increase in Underwriters' Commitments. If any Underwriter
shall default in its obligation to take up and pay for the Securities to be
purchased by it hereunder on the Closing Date and if the amount of Securities
that all Underwriters so defaulting shall have agreed but failed to take up and
pay for does not exceed 10% of the total number of Securities that the
Underwriters are obligated to purchase on the Closing Date, the non-defaulting
Underwriters shall take up and pay for (in addition to the Securities they are
obligated to purchase pursuant to Section 1 hereof) the number of Securities
agreed to be purchased by all such defaulting Underwriters on the Closing Date,
as hereinafter provided. Such Securities shall be taken up and paid for by such
non-defaulting Underwriter or Underwriters in such amount or amounts as you may
designate with the consent of each Underwriter so designated or, in the event no
such designation is made, such Securities shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate amount of
Securities set opposite the names of such non-defaulting Underwriters in
Schedule I.
If a new allocation is made in accordance with the foregoing
provision, you shall have the right to postpone the Closing Date, as the case
may be, for a period not exceeding five business days in order that any
necessary changes in the Registration Statement and Prospectus and other
documents may be effected.
35
-34-
The term Underwriter as used in this Agreement shall refer to
and include any Underwriter substituted under this Section 11 with like effect
as if such substituted Underwriter had originally been named in Schedule I.
If the amount of Securities that all Underwriters so
defaulting shall have agreed but failed to take up and pay for exceeds 10% of
the total number of Securities that the Underwriters are obligated to purchase
on the Closing Date, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
12. Information Supplied by the Underwriters. The statements
set forth in the last paragraph on the front cover page of the Prospectus
relating to the Securities and paragraph [ ] under the heading "Underwriting" in
the Prospectus relating to the Securities (to the extent such statements relate
to the Underwriters) constitute the only information furnished by the
Underwriters to the Company for the purposes of Sections 2(b), 8(a) and 8(b)
hereof. Each Underwriter confirms that such statements, to the extent such
statements relate to each such Underwriter, are correct in all material
respects.
13. Notices. All communications hereunder shall be in writing
and, if sent to the Underwriters, shall be mailed or delivered or telecopied and
confirmed in writing to the Underwriters in care of [ ], Attention: Corporate
Finance Department, and if sent to the Company, shall be mailed, delivered or
telegraphed and confirmed in writing to Atlas Air, Inc., at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Chief Financial Officer.
14. Successors. This Agreement shall inure to the benefit of
and be binding upon the Underwriters and the Company and their respective
successors and legal Underwriters, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained. This Agreement and all conditions and
provisions hereof are intended to be and are for the sole and exclusive benefit
of such persons and for the benefit of no other person except that (i) the
indemnities of
36
-35-
the Company contained in Section 8 of this Agreement shall also be for the
benefit of any person or persons who control the Underwriters within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Underwriters contained in Section 8 of this Agreement shall
also be for the benefit of the directors of the Company, the Company's officers
who have signed the Registration Statement, and any person or persons who
control the Company within the meaning of Section 15 of the Act or Section 20 of
the 1934 Act. No purchaser of Securities from the Underwriters will be deemed a
successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
37
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between the
Company and the Underwriters.
Very truly yours,
ATLAS AIR, INC.
By:
------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[US Underwriters]
[International Underwriters]
38
SCHEDULE I
Principal
Amount of
Senior Notes
to Be
Underwriters Purchased
------------ ------------
Names of Other Underwriters............................. $[ ]
------------
Total $[ ]
