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Horizon Lines, Inc. – IPO: ‘S-1/A’ on 9/20/05

On:  Tuesday, 9/20/05, at 11:54am ET   ·   Private-to-Public:  Document/Exhibit ¶  –  Release Delayed   ·   Accession #:  1193125-5-188150   ·   File #:  333-123073

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 9/20/05  Horizon Lines, Inc.               S-1/A¶                 4:261K                                   Donnelley … Solutions/FA

Document/Exhibit                   Description                      Pages   Size 

 1: S-1/A       Amendment No.7 to Form S-1                          HTML    226K 
 4: CORRESP   ¶ Comment-Response or Other Letter to the SEC         HTML      8K 
 2: EX-5        Opinion of Schulte Roth & Zable LLP                 HTML     12K 
 3: EX-23.1     Consent of Ernst & Young LLP                        HTML      5K 

As filed with the Securities and Exchange Commission on September 20, 2005

Registration No. 333-123073

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Amendment No. 7

to

Form S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

HORIZON LINES, INC.

(Exact name of registrant as specified in Its Charter)

4064 Colony Road, Suite 200

Charlotte, North Carolina 28211

(704) 973-7000

(Address, including Zip Code, and Telephone Number, including Area Code, of Registrant’s Principal Executive Office)

M. Mark Urbania, Chief Financial Officer

4064 Colony Road, Suite 200

Charlotte, North Carolina 28211

(704) 973-7000

(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)

Copies to:

Approximate Date of Commencement of Proposed Offer to the Public:    As soon as practicable after this registration statement becomes effective.

If any of the securities being registered on this form are being offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”), check the following box:  ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering:  ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration number of the earlier effective registration statement for the same offering:  ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier registration statement for the same offering:  ¨

If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box:  ¨

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

EXPLANATORY NOTE

This Amendment No. 7 to the Registration Statement is being filed solely to amend Part II of the Registration Statement to file Exhibit 5 to the Registration Statement.

Part II.

INFORMATION NOT REQUIRED IN THE PROSPECTUS

Item 13. Other Expenses of Issuance and Distribution

The following table shows the costs and expenses, other than underwriting discounts and commissions, payable in connection with the sale and distribution of the securities being registered. Except as otherwise noted, we will pay all of these amounts. All amounts except the SEC registration fee and the NASD fee are estimated.

Item 14. Indemnification of Directors and Officers.

Indemnification under the Delaware General Corporation Law.

Subsection (a) of Section 145 of the General Corporation Law of the State of Delaware empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.

Subsection (b) of Section 145 empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which such person shall have been made to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

Section 145 further provides that to the extent a director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145 in the defense of any claim, issue or matter therein, he shall be

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indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; that indemnification provided for by Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such person’s heirs, executors and administrators; and empowers the corporation to purchase and maintain insurance on behalf of a director or officer of the corporation against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such whether or not the corporation would have the power to indemnify him against such liabilities under Section 145.

Section 102(b)(7) of the General Corporation Law of the State of Delaware provides that a certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director provided that such provision shall not eliminate or limit the liability of a director (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) under Section 174 of the Delaware General Corporation Law, or (4) for any transaction from which the director derived an improper personal benefit. Our certificate of incorporation contains such a provision.

These provisions will not limit the liability of directors or officers under the federal securities laws of the United States.

Indemnification under the Certificate of Incorporation of Horizon Lines, Inc.

Article VII of the amended and restated certificate of incorporation of Horizon Lines, Inc. expressly provides that a director of Horizon Lines, Inc. shall not be liable to Horizon Lines, Inc. or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or such limitation thereof is not permitted by the General Corporation Law of the State of Delaware (including, without limitation, Section 102(b)(7) thereof), as amended or supplemented from time to time.

Article VII of the amended and restated certificate of incorporation of Horizon Lines, Inc. provides that each person (and the heirs, executors or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person (i) is or was a director, officer or employee of Horizon Lines, Inc. or (ii) serves or served as a director, officer, or employee of any other enterprise (as defined below) either (x) at the request of Horizon Lines, Inc. or (y) that is or was a direct or indirect subsidiary (whether wholly owned or otherwise) of Horizon Lines, Inc. at the time of such person’s service as a director, officer or employee of such other enterprise, shall be indemnified and held harmless by Horizon Lines, Inc. to the fullest extent permitted by the General Corporation Law of the State of Delaware, as amended or supplemented from time to time, and not otherwise prohibited by applicable law; provided, however, that except for proceedings by any such person to enforce rights to indemnification, Horizon Lines, Inc. shall not be obligated to indemnify such person (or the heirs, executors or administrators of such person) in connection with any action, suit or proceeding (or part thereof) initiated by such person (or the heirs, executors or administrators of such person) unless such action, suit or proceeding was authorized or consented to by the Board of Directors of Horizon Lines, Inc. For purposes of Article VII of such certificate of incorporation, the term “other enterprise” shall include any corporation, partnership, limited liability company, joint venture, trust or other enterprise.

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In addition, Article VII of the amended and restated certificate of incorporation provides that Horizon Lines, Inc., to the fullest extent permitted by the General Corporation Law of the State of Delaware, as amended or supplemented from time to time, and not otherwise prohibited by applicable law, may advance to any person who is or was an officer, director or employee of Horizon Lines, Inc. (and the heirs, executors and administrators of such person) any and all expenses, including, without limitation, attorneys fees and disbursements and court costs) reasonably incurred by such person in respect of defending any action, suit or proceeding, whether civil, criminal, administrative or investigative, to which such person was or is a party or is threatened to be made a party to, by reason of the fact that such person (i) is or was a director or officer of Horizon Lines, Inc. or (ii) serves or served as a director, officer, or employee of any other enterprise either (x) at the request of Horizon Lines, Inc. or (y) that is or was a direct or indirect subsidiary (whether wholly owned or otherwise) of Horizon Lines, Inc. at the time of such person’s service as a director, officer or employee of such other enterprise; provided, however, that, to the extent the General Corporation Law of the State of Delaware, as amended or supplemented from time to time, requires, the payment of such expenses in advance of the final disposition of the action, suit or proceeding shall be made only upon delivery to Horizon Lines, Inc. of an undertaking, by or on behalf of such person, to repay all amounts so advanced if it shall ultimately be determined that such person is not entitled to be indemnified against such expense under such Article VII or otherwise. Horizon Lines, Inc., by provisions in its Bylaws or by agreement, may accord any such person the right to, or regulate the manner of providing to any such person, such advancement of expenses to the fullest extent permitted by the General Corporation Law of the State of Delaware, as amended or supplemented from time to time.

Indemnification under the bylaws of Horizon Lines, Inc.

The bylaws of Horizon Lines, Inc. do not contain any provisions with respect to indemnification.

Indemnification under indemnification agreements with our directors and officers

Horizon Lines, Inc. and Horizon Lines Holding expect to enter into indemnification agreements with certain officers and directors of Horizon Lines, Inc. and its subsidiaries (including Horizon Lines Holding). The indemnification agreements will provide indemnification to such individuals under certain circumstances for acts or omissions which may not be covered by directors’ and officers’ liability insurance, and may, in some cases, be broader than the specific indemnification provisions contained under Delaware law. Horizon Lines, Inc. has also obtained directors’ and officers’ liability insurance, which insures against liabilities that its directors or officers may incur in such capacities.

Item 15. Recent Sales of Unregistered Securities.

The numbers of shares of common stock of Horizon Lines, Inc. set forth below do not give effect to the pending reclassification of the outstanding shares of the common stock of Horizon Lines, Inc. into a greater number of shares of common stock of Horizon Lines, Inc., as described in Part I of this registration statement.

The following is a list of all securities sold or issued by Horizon Lines, Inc. within the past three years:

(1) On May 12, 2004 and July 7, 2004, Horizon Lines, Inc. issued an aggregate of 100 shares of its common stock to Castle Harlan Partners IV, L.P. (“CHP IV”), an affiliate of Castle Harlan, Inc., for an aggregate purchase price of $800. The shares were issued in reliance on Section 4(2) of the Securities Act as the sale of the securities did not involve a public offering. The offer and sale did not involve a public offering because the shares were issued to a single investor, CHP IV, in connection with the formation of Horizon Lines, Inc. by CHP IV to serve as the acquisition vehicle for the purchase of all of the outstanding common stock of Horizon Lines Holding Corp. Appropriate legends were affixed to the share certificates issued in such transaction.

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(2) On July 7, 2004, Horizon Lines, Inc. issued the shares listed below to the persons listed below. These shares were issued in exchange for certain shares of common stock of Horizon Lines Holding in connection with the acquisition by Horizon Lines, Inc. of all of the outstanding common stock of Horizon Lines Holding Corp. pursuant to a merger. The shares were issued to 32 accredited investors and 9 non-accredited investors in reliance on the exemption from registration provided by Rule 506 of Regulation D under the Securities Act. All recipients either received adequate information about us or had access, through employment or other relationships, to such information. Appropriate legends were affixed to the share certificates issued in such transactions.

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(3) On July 7, 2004, Horizon Lines, Inc. issued its 13% promissory notes to the persons listed below for aggregate consideration of $70 million. The notes were issued in reliance on Section 4(2) of the Securities Act as the sale of the securities did not involve a public offering. The offer and sale did not involve a public offering because the notes were issued to CHP IV and certain other affiliates and associates of Castle Harlan, Inc. Appropriate legends were affixed to the notes issued in such transactions.

(4) On October 15, 2004, Horizon Lines, Inc. issued 126,582 shares of common stock and 1,898,730 shares of Series A preferred stock to Stockwell Fund, L.P. for an aggregate purchase price of approximately $20.7 million. The shares were issued in reliance on Section 4(2) of the Securities Act. The offer and sale of the securities did not involve a public offering because the securities were issued to a single investor. In addition, Stockwell Fund, L.P. represented to Horizon Lines, Inc. that it was an accredited investor and was acquiring shares for investment and not distribution. Appropriate legends were affixed to the share certificates issued in such transaction.

(5) On December 16, 2004, Horizon Lines, Inc. issued the shares listed below to the persons listed below. These shares were issued to certain members of our management team, including family members, who held options to purchase shares of common stock of Horizon Lines Holding Corp. and who did not exchange such options for cash consideration in connection with the acquisition of Horizon Lines Holding Corp. by Horizon Lines, Inc. These shares were issued, after giving effect to the provisions of the Put/Call Agreement dated as of July 7, 2004, upon the exercise of such options to purchase shares of common stock of Horizon Lines Holding Corp. All of such shares of stock were issued pursuant to compensatory plans or arrangements with our employees in reliance on Rule 701 under the Securities Act.

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(6) On January 14, 2005, Horizon Lines, Inc. issued shares of common stock to the persons listed below. These shares were issued in reliance on Section 4(2) of the Securities Act. The offer and sale of these securities did not involve a public offering because the securities were issued to a limited number of persons, each of whom is a member of our management. Appropriate legends were affixed to the share certificates issued in such transaction. All recipients either received adequate information about us or had access, through employment or other relationships, to such information.

(7) On January 28, 2005, Horizon Lines, Inc. issued the shares listed below to the persons listed below. All of these shares of stock were issued pursuant to compensatory plans or arrangements with the directors of Horizon Lines, Inc. in reliance on Rule 701 under the Securities Act. The offer and sale of these securities did not involve a public offering because these securities were issued to members of the board of directors of Horizon Lines, Inc.

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(8) On February 10, 2005, Horizon Lines, Inc. issued the shares listed below to the person listed below. The shares were issued in reliance on Section 4(2) of the Securities Act. The offer and sale of these securities did not involve a public offering because these securities were issued to a single investor who is a former member of our management. The person listed below held options to purchase shares of common stock of Horizon Lines Holding Corp. and did not exchange such options for cash consideration in connection with the acquisition of Horizon Lines Holding Corp. by Horizon Lines, Inc. These shares were issued, after giving effect to the provisions of the Put/Call Agreement dated as of July 7, 2004, upon the exercise of such options to purchase shares of common stock of Horizon Lines Holding Corp. Appropriate legends were affixed to the share certificates issued in such transaction.

There were no underwriters employed in connection with the sales and issuances described in paragraphs (1) through (8).

For all transactions listed in this Item other exemptions from registration under the Securities Act may also have been available.

Horizon Lines, Inc. has sold and issued 802,205 shares of its voting common stock and 10,853,396 shares of its Series A preferred stock, for a total aggregate consideration of approximately $115.65 million.

Item 16. Exhibits and Financial Statement Schedules

(a) Exhibits

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Item 17.

The undersigned registrant hereby undertakes:

(1) to provide to the underwriter at the closing specified in the underwriting agreements certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser;

(2) That, for purposes of determining any liability under the Securities Act of 1933, or the Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective;

(3) That, for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Charlotte, State of North Carolina, on the 20th day of September, 2005.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.

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EXHIBIT INDEX

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Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘S-1/A’ Filing		Date		Other Filings
Filed on:		9/20/05		8-K,  CORRESP
		9/19/05		CORRESP,  S-1/A
		9/16/05
		9/7/05		S-1/A
		9/2/05
		7/29/05		CORRESP,  S-1/A
		7/5/05
		6/23/05
		4/13/05		CORRESP,  S-1/A
		4/7/05
		3/30/05
		3/2/05		S-1
		2/10/05
		1/28/05
		1/14/05
		1/1/05
		12/16/04
		12/10/04
		10/15/04
		9/30/04
		7/7/04
		5/12/04
		5/9/04
		3/29/04
		2/27/03
		2/14/03
		1/7/03
		9/5/02
		5/16/02
		5/2/02
		5/1/02
		4/12/02
		4/1/02
		3/1/02
		3/29/01
		5/31/00
		9/2/99
		12/1/98
		6/20/96
		1/24/96
		1/12/96
		3/22/95
		8/20/92
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Filing Submission 0001193125-05-188150   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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