4,000,000
SHARES
ATLAS AIR WORLDWIDE
HOLDINGS, INC.
COMMON STOCK ($0.01 PAR VALUE PER SHARE)
UNDERWRITING
AGREEMENT
May 12, 2009
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
HMC Atlas Air, L.L.C. (the “
Selling Shareholder ”) proposes to sell to Goldman,
Sachs & Co. and Morgan Stanley & Co. Incorporated, as
underwriters (the “ Underwriters ”), 4,000,000
shares (the “ Firm Shares ”) of the common
stock, par value $0.01 per share (the “ Common Stock
”), of Atlas Air Worldwide Holdings, Inc., a Delaware
corporation (the “ Company ”).
The Selling Shareholder also proposes
to sell to the several Underwriters not more than 600,000
additional shares of Common Stock (the “ Additional
Shares ”) if and to the extent that the Underwriters
shall have determined to exercise the right to purchase such
Additional Shares in accordance with Section 3 hereof. The
Firm Shares and the Additional Shares are hereinafter collectively
referred to as the “ Shares .”
The Company has filed with the
Securities and Exchange Commission (the “ Commission
”) a registration statement (File No. 333-142155),
including a prospectus, relating to the Shares. The registration
statement as amended at the time it became effective, including the
information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A
under the Securities Act of 1933, as amended (the “
Securities Act ”), is hereinafter referred to as the
“ Registration Statement ”; the prospectus in
the form first used to confirm sales of Shares (or in the form
first made available to the Underwriters by the Company to meet
requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “
Prospectus, ” and the term “ preliminary
prospectus ” means any preliminary form of the
Prospectus. If the Company has filed an abbreviated registration
statement to register additional shares of Common Stock pursuant to
Rule 462(b) under the Securities Act (the “
Rule 462 Registration Statement ”), then any
reference herein to the term “ Registration Statement
” shall be deemed to include such Rule 462 Registration
Statement.
For purposes of this Agreement,
“ free writing prospectus ” has the meaning set
forth in Rule 405 under the Securities Act, “ Time of Sale
Prospectus ” means the preliminary prospectus together
with the free writing prospectuses, if any, and orally communicated
pricing information, each identified in Schedule II hereto,
and “ broadly available road show ” means a
“bona fide electronic road show” as defined in
Rule 433(h)(5) under the Securities Act that has been made
available without restriction to any person. As used herein, the
terms “Registration Statement,” “preliminary
prospectus,” “Time of Sale Prospectus” and
“Prospectus” shall include the documents, if any,
incorporated by reference therein. The terms “
supplement, ” “ amendment ” and
“ amend ” as used herein with respect to the
Registration Statement, the Prospectus, the Time of Sale Prospectus
or any free writing prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), that are deemed to be incorporated by
reference therein.
1. Representations and Warranties of the Company .
The Company represents and warrants to and agrees with each of the
Underwriters that:
(a) The Registration Statement
has become effective; no stop order suspending the effectiveness of
the Registration Statement is in effect, and no proceedings for
such purpose are pending before, or to the knowledge of the
Company, threatened by the Commission. If the Registration
Statement is an automatic shelf registration statement as defined
in Rule 405 under the Securities Act, the Company is a
well-known seasoned issuer (as defined in Rule 405 under the
Securities Act) eligible to use the Registration Statement as an
automatic shelf registration statement and the Company has not
received notice that the Commission objects to the use of the
Registration Statement as an automatic shelf registration
statement.
(b) (i) Each document, if
any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the
Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) the
Registration Statement, when it became effective, did not contain
and, as amended or supplemented, if applicable, will not contain
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 not misleading, (iii) the Registration
Statement and the Prospectus comply and, as amended or supplemented
at the time of filing such amendment or supplement, if applicable,
will comply in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder,
(iv) the Time of Sale Prospectus does not, and at the time of
each sale of the Shares in connection with the offering when the
Prospectus is not yet available to prospective purchasers and at
the Closing Date (as defined in Section 5), the Time of Sale
Prospectus, as then amended or supplemented by the Company, if
applicable, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, (v) each broadly available
road show, if any, when considered together with the Time of Sale
Prospectus, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading and (vi) the Prospectus does
not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set
forth in this paragraph do not apply to statements or omissions in
the Registration Statement, the Time of Sale Prospectus or the
Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter expressly
for use therein or information relating to the Selling Shareholder
furnished to the Company in writing by the Selling Shareholder
expressly for use therein.
(c) The Company is not an
“ineligible issuer” in connection with the offering
pursuant to Rules 164, 405 and 433 under the Securities Act.
Any free writing prospectus that the Company is required to file
pursuant to Rule 433(d) under the Securities Act has been, or will
be, filed with the Commission in accordance with the requirements
of the Securities Act and the applicable rules and regulations of
the Commission thereunder. Each free writing prospectus that the
Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or behalf of or
used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and
the applicable rules and regulations of the Commission thereunder.
Except for the free writing prospectuses, if any, identified in
Schedule II hereto, and electronic road shows, if any, each
furnished to the Underwriters before first use, the Company has not
prepared, used or referred to, and will not, without the
Underwriters’ prior consent, prepare, use or refer to, any
free writing prospectus.
(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, has the
corporate power and authority to own its property and to conduct
its business as described in the Time of Sale Prospectus and 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.
(e) Each “significant
subsidiary” (as such term is defined in Rule 1-02 of
Regulation S-X) (each a “Significant Subsidiary”
and, collectively, the “Significant Subsidiaries”) of
the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Time of
Sale Prospectus and 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; all
of the issued shares of capital stock of each Significant
Subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and, except as set forth
in the Time of Sale Prospectus and the Prospectus, are owned
directly by the Company, free and clear of all liens, encumbrances,
equities or claims (other than, with respect to Polar Air Cargo
Worldwide, Inc., liens, encumbrances, equities or claims arising
out of the Stockholders Agreement dated as of June 28, 2007
among Polar Air Cargo Worldwide, Inc., Atlas Air Worldwide
Holdings, Inc. and DHL Network Operations, (USA), Inc.).
(f) This Agreement has been
duly authorized, executed and delivered by the Company.
(g) The authorized capital
stock of the Company conforms as to legal matters in all material
respects to the description thereof contained in each of the Time
of Sale Prospectus and the Prospectus.
(h) The shares of Common Stock
(including the Shares to be sold by the Selling Shareholder) have
been duly authorized and are validly issued, fully paid and
non-assessable.
(i) The execution and delivery
by the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene any provision
of applicable law (assuming the offering has no effect on the
Company’s status as a “citizen of the United
States” (as defined in Section 40102(a)(15) of Title 49
of the United States Code, as amended)) or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that
is material to the Company and its subsidiaries, taken as a whole,
or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any subsidiary,
and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for
the performance by the Company of its obligations under this
Agreement, except such as may be required by the securities or Blue
Sky laws of the various states or any such notices as may be
required by the regulations of the United States Department of
Transportation, in each case in connection with the offer and sale
of the Shares.
(j) There has not occurred any
material adverse change, or any development reasonably likely to
result in a material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus.
(k) There are no legal or
governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any
of its subsidiaries is subject (i) other than proceedings
accurately described in all material respects in the Time of Sale
Prospectus and proceedings that would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole, or on
the power or ability of the Company to perform its obligations
under this Agreement or to consummate the transactions contemplated
by the Time of Sale Prospectus or (ii) that are required to be
described in the Registration Statement or the Prospectus and are
not so described; and there are no statutes, regulations, contracts
or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement that are not described or filed as
required.
(l) Each preliminary prospectus
filed as part of the registration statement as originally filed or
as part of any amendment thereto, or filed pursuant to
Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(m) The Company is not, and
after giving effect to the sale of the Shares as described in the
Prospectus will not be, required to register as an
“investment company” as such term is defined in the
Investment Company Act of 1940, as amended.
(n) Except as described in the
Registration Statement or the Prospectus, the Company and its
subsidiaries (i) 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 ”), (ii) have received all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (iii) 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 on the Company and its subsidiaries, taken as a
whole.
(o) Except as described in the
Registration Statement or the Prospectus, there are no costs or
liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required in
relation to an order for clean-up or remediation in compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any liabilities to third
parties) which would, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(p) There are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement, except pursuant to that certain Registration Rights
Agreement made as of February 13, 2007, as amended on
March 12, 2007, by and among the Company, the Selling
Shareholder and the other parties thereto (which is incorporated by
reference as an exhibit to the Registration Statement) (the “
Registration Rights Agreement ”).
(q) Neither the Company nor any
of its subsidiaries, nor, to the Company’s knowledge, any
director, officer, employee, agent or representative of the Company
or of any of its subsidiaries or affiliates, has taken or will take
any action in furtherance of an offer, payment, promise to pay, or
authorization or approval of the payment or giving of money,
property, gifts or anything else of value, directly or indirectly,
to any “government official” (including any officer or
employee of a government or government-owned or controlled entity
or of a public international organization, or any person acting in
an official capacity for or on behalf of any of the foregoing, or
any political party or party official or candidate for political
office) that is unlawful; and the Company and its subsidiaries and
affiliates have conducted their businesses in compliance with
applicable anti-corruption laws and have instituted and maintain
and will continue to maintain policies and procedures designed to
promote and achieve compliance with such laws and with the
representation and warranty contained herein
(r) The operations of the
Company and its Significant Subsidiaries are and have been
conducted at all times in material compliance with all applicable
financial recordkeeping and reporting requirements, including those
of the Bank Secrecy Act, as amended by Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and
the applicable anti-money laundering statutes of jurisdictions
where the Company and its Significant Subsidiaries conduct
business, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “
Anti-Money Laundering Laws ”), and no action, suit or
proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Anti-Money Laundering Laws is
pending or, to the best knowledge of the Company, threatened.
(s) (i) The Company
represents that neither the Company nor any of its subsidiaries
(collectively, the “ Entity ”) or, to the
knowledge of the Entity, any director, officer, employee, agent or
representative of the Entity, is an individual or entity (“
Person ”) that is, or is owned or controlled by a
Person that is:
(A) the
subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control or
other relevant sanctions authority (collectively, “
Sanctions ”), nor
(B) located,
organized or resident in a country or territory that is the subject
of Sanctions (including, without limitation, Burma/Myanmar, Cuba,
Iran, North Korea, Sudan and Syria).
(ii) The
Entity represents that for the past 5 years, it has not
knowingly engaged in, and is not now knowingly engaged in, any
dealings or transactions with any Person, or in any country or
territory, that at the time of the dealing or transaction is or was
the subject of Sanctions.
(t) Each of the Company, Atlas
Air, Inc. and Polar Air Cargo Worldwide, Inc. 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 each of Atlas Air, Inc. and Polar Air Cargo
Worldwide, Inc. is an air carrier operating under a certificate of
public convenience and necessity issued by the Secretary of
Transportation pursuant to Section 41102 of Title 49, United
States Code. There is in force with respect to each of Atlas Air,
Inc., and Polar Air Cargo Worldwide, Inc., an air carrier operating
certificate issued by the Federal Aviation Administration pursuant
to 14 C.F.R. Part 119.
2. Representations and
Warranties of the Selling Shareholder . The Selling Shareholder
represents and warrants to and agrees with each of the Underwriters
that:
(a) This Agreement has been
duly authorized, executed and delivered by or on behalf of the
Selling Shareholder.
(b) The execution and delivery
by the Selling Shareholder of, and the performance by the Selling
Shareholder of its obligations under, this Agreement will not
contravene any provision of applicable law, or the limited
liability company agreement of the Selling Shareholder, or any
agreement or other instrument binding upon the Selling Shareholder
that is material to the Selling Shareholder or that could adversely
affect the Selling Shareholder’s ability to fulfill its
obligations hereunder, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Selling Shareholder, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Selling Shareholder of its
obligations under this Agreement, except such as have been obtained
and made under the Securities Act and the Exchange Act and such as
may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder
has, and on the Closing Date will have, valid title to, or a valid
“security entitlement” within the meaning of
Section 8-501 of the New York Uniform Commercial Code in
respect of, the Shares to be sold by the Selling Shareholder free
and clear of all security interests, claims, liens, equities or
other encumbrances and the legal right and power, and all
authorization and approval required by law, to enter into this
Agreement and to sell, transfer and deliver the Shares to be sold
by the Selling Shareholder or a security entitlement in respect of
such Shares.
(d) Upon payment for the Shares
to be sold by the Selling Shareholder pursuant to this Agreement,
delivery of such Shares, as directed by the Underwriters, to Cede
& Co. (“ Cede ”) or such other nominee as
may be designated by The Depository Trust Company (“
DTC ”), registration of such Shares in the name of
Cede or such other nominee and the crediting of such Shares on the
books of DTC to a securities account of the Underwriters (assuming
that neither DTC nor any such Underwriter has notice of any adverse
claim (within the meaning of Section 8-105 of the New York
Uniform Commercial Code (the “ UCC ”)) to such
Shares and each such Underwriter acquired the interest in the
Shares it has purchased under this Agreement in good faith),
(A) DTC shall be a “protected purchaser” of such
Shares within the meaning of Section 8-303 of the UCC,
(B) under Section 8-501 of the UCC, the Underwriters will
acquire a valid security entitlement in respect of such Shares and
(C) no action based on any “adverse claim”, within
the meaning of Section 8-102 of the UCC, to such Shares may be
asserted against the Underwriters with respect to such security
entitlement; for purposes of this representation, the Selling
Shareholder may assume that when such payment, delivery and
crediting occur, (x) such Shares will have been registered in
the name of Cede or another nominee designated by DTC, in each case
on the Company’s share registry in accordance with its
certificate of incorporation, bylaws and applicable law,
(y) DTC will be registered as a “clearing
corporation” within the meaning of Section 8-102 of the
UCC and (z) appropriate entries to the accounts of the several
Underwriters on the records of DTC will have been made pursuant to
the UCC.
(e) The Selling Shareholder is
not prompted by any material non-public information concerning the
Company or its subsidiaries which is not set forth in the Time of
Sale Prospectus to sell its Shares pursuant to this Agreement.
(f) (i) The Registration
Statement, when it became effective, did not contain and, as
amended or supplemented, if applicable, will not contain 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 not misleading, (ii) the Time of Sale Prospectus does
not, and at the time of each sale of the Shares in connection with
the offering when the Prospectus is not yet available to
prospective purchasers and at the Closing Date (as defined in
Section 5), the Time of Sale Prospectus, as then amended or
supplemented by the Company, if applicable, will not, contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
(iii) each broadly available road show, if any, when
considered together with the Time of Sale Prospectus, does not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this
paragraph 2(f) shall only apply to statements or omissions in
the Registration Statement or the Prospectus based upon information
relating to the Selling Shareholder furnished by or on behalf of
the Selling Shareholder in writing expressly for use therein.
3. Agreements to Sell and Purchase . The Selling
Shareholder hereby agrees to sell to the several Underwriters, and
each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase
from the Selling Shareholder the respective numbers of Firm Shares
set forth in Schedule I hereto opposite its name at $22.98 a
share (the “ Purchase Price ”).
On the basis of the representations
and warranties contained in this Agreement, and subject to its
terms and conditions, the Selling Shareholder agrees to sell to the
Underwriters the Additional Shares, and the Underwriters shall have
the right to purchase, severally and not jointly, up to all of the
Additional Shares at the Purchase Price, provided, however, that
the amount paid by the Underwriters for any Additional Shares shall
be reduced by an amount per share equal to any dividends declared
by the Company and payable on the Firm Shares but not payable on
such Additional Shares. The Underwriters may exercise this right in
whole or from time to time in part by giving written notice not
later than 30 days after the date of this Agreement. Any
exercise notice shall specify the number of Additional Shares to be
purchased by the Underwriters and the date on which such shares are
to be purchased. Each purchase date must be at least one business
day after the written notice is given and may not be earlier than
the closing date for the Firm Shares nor later than ten business
days after the date of such notice. Additional Shares may be
purchased as provided in Section 5 hereof solely for the
purpose of covering over-allotments made in connection with the
offering of the Firm Shares. On each day, if any, that Additional
Shares are to be purchased (an “ Option Closing Date
”), each Underwriter agrees, severally and not jointly, to
purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the Underwriters may
determine) that bears the same proportion to the total number of
Additional Shares to be purchased on such Option Closing Date as
the number of Firm Shares set forth in Schedule I hereto
opposite the name of such Underwriter bears to the total number of
Firm Shares.
The Selling Shareholder hereby agrees
that, without the prior written consent of the Underwriters, it
will not, during the period ending 60 days after the date of
the Prospectus, (1) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly,
any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock; or (2) enter
into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise; or
(3) file any registration statement other than the
Registration Statement with the Commission relating to the offering
of any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock.
The restrictions contained in the
preceding paragraph shall not apply to (a) the Shares to be
sold hereunder, (b) pledges by the Selling Shareholder of
shares of Common Stock in favor of a lender or other similar
financing source, (c) distributions by the Selling Shareholder
of shares of Common Stock or any security convertible into Common
Stock to limited partners, members or stockholders of the Selling
Shareholder and (d) any transfer to an affiliate of the
Selling Shareholder; provided that in the case of any such
transfer or distribution, (i) each donee, distributee or
transferee shall enter into a written agreement accepting the
restrictions set forth in the preceding paragraph and this
paragraph as if it were the Selling Shareholder, (ii) other
than in the case of clause (d) above, the Selling Shareholder
shall not be required to file, and shall not voluntarily file, a
report under Section
