As filed with the Securities and Exchange Commission on January 31, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
SEACOR HOLDINGS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 13-3542736
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
11200 WESTHEIMER, SUITE 850
HOUSTON, TEXAS 77042
(713) 782-5990
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
MR. RANDALL BLANK
EXECUTIVE VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND SECRETARY
SEACOR HOLDINGS, INC.
1370 AVENUE OF THE AMERICAS, 25TH FLOOR
NEW YORK, NEW YORK 10019
(212) 307-6633
(Name, Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent for Service)
Copy to:
David E. Zeltner, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [_]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please 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 statement number of the earlier effective 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. [_]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Each Class of Securities to be Amount to be Offering Price Aggregate Offering Amount of Registration
Registered Registered Per Unit (1) Price Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 790,736 $58.38 $46,163,167.68 $13,988.84
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<FN>
(1) The registration fee for shares of Common Stock being registered
hereby, $13,988.84, has been calculated pursuant to Section 6(b) of,
and Rule 457(c) under, the Securities Act of 1933, as amended (the
"Securities Act"), as follows: 1/33rd of 1% of the product of (x)
$58.38, the average of the high and low sales prices of a share of the
Common Stock as reported on The New York Stock Exchange, Inc. on
January 29, 1996 and (y) 790,736, the maximum number of shares of
Common Stock to be offered to the public.
</FN>
</TABLE>
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JANUARY 31, 1997
PROSPECTUS
SEACOR HOLDINGS, INC.
790,736 Shares of Common Stock
($.01 Par Value)
This Prospectus relates to the offer and sale of up to 790,736 shares (the
"Shares") of the common stock, $.01 par value (the "Common Stock"), of SEACOR
Holdings, Inc., a Delaware corporation (the "Company"). The Shares may be
offered for sale by certain stockholders of the Company or by their transferees,
pledgees, donees or their successors (the "Selling Stockholders") from time to
time in transactions effected on The New York Stock Exchange, Inc. ("NYSE") (or
through the facilities of any national securities exchange or U.S. inter-dealer
quotation system of a registered national securities association, on which the
Securities are then listed, admitted to unlisted trading privileges or included
for quotation), in privately negotiated transactions, or in a combination of
such methods of sale. Such methods of sale may be conducted at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The Selling Stockholders may effect such
transactions directly, or indirectly through underwriters, broker-dealers or
agents acting on their behalf, and in connection with such sales, such
broker-dealers or agents may receive compensation in the form of commissions,
concessions, allowances or discounts from the Selling Stockholders and/or the
purchasers of the Shares for whom they may act as agent or to whom they sell
Shares as principal or both (which commissions, concessions, allowances or
discounts might be in excess of customary amounts thereof). To the extent
required, the names of any agents, broker-dealers or underwriters and applicable
commissions, concessions, allowances or discounts and any other required
information with respect to any particular offer of the Shares by the Selling
Stockholders, will be set forth in a Prospectus Supplement. See "Selling
Stockholders" and "Plan of Distribution." Certain restrictions on the ability of
the Selling Stockholders to sell Shares owned by them are described under
"Selling Stockholders."
None of the proceeds from the sale of the Shares by the Selling
Stockholders will be received by the Company. The Company has agreed to bear all
expenses of registration of the Shares under federal or state securities laws
and to indemnify the Selling Stockholders against certain liabilities, including
liabilities under the Securities Act of 1933, as amended (the "Securities Act").
The Selling Stockholders and any underwriters, dealers or agents which
participate in the distribution of the Shares may be deemed to be "underwriters"
within the meaning of the Securities Act, and any commission received by them
and any profit realized on the resale of the Shares purchased by them may be
deemed to constitute underwriting commissions, concessions, allowances or
discounts under the Securities Act. See "Plan of Distribution."
SEE "RISK FACTORS" BEGINNING ON PAGE 8 OF THIS PROSPECTUS FOR A DISCUSSION
OF CERTAIN MATERIAL RISKS THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN
INVESTMENT IN THE SHARES OFFERED HEREBY.
The Shares offered for resale by the Selling Stockholders are being
offered pursuant to certain investment and registration rights agreements.
See "Selling Stockholders."
The Common Stock is traded on the NYSE under the symbol "CKH." The closing
sale price of the Common Stock as reported on the NYSE Composite Tape on January
30, 1997 was $59.00 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is _________ __, 1997.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Copies of reports, proxy statements, information
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and
also are available for inspection at the Commission's regional offices located
at 500 West Madison, Suite 1400, Chicago, Illinois 60661 and 7 World Trade
Center, Suite 1300, New York, New York 10048, and at the Commission's Web site
at (http://www.sec.gov). Copies of such material also can be obtained at
prescribed rates from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549. Such reports, proxy statements,
information statements and other information may also be inspected at the
offices of the NYSE at 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with all amendments thereto, the "Registration Statement") under
the Securities Act with respect to the Shares. This Prospectus does not contain
all of the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. Statements made in this Prospectus as to the contents of any
contract, agreement or other document referred to are not necessarily complete
and, with respect to each such contract, agreement or other document filed as an
exhibit to the Registration Statement, reference is made to the exhibit for a
more complete description of the matter involved, and each such statement is
deemed qualified in its entirety by such reference.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act (File No. 1-12289) are incorporated by reference in this
Prospectus: (i) the Company's Annual Report on Form 10-K for its fiscal year
ended December 31, 1995 filed with the Commission on March 18, 1996; (ii) the
Company's Quarterly Report on Form 10-Q for its fiscal quarter ended March 31,
1996 filed by the Company with the Commission on May 15, 1996; (iii) the
Company's Quarterly Report on Form 10-Q for its fiscal quarter ended June 30,
1996 filed by the Company with the Commission on August 14, 1996; (iv) the
Company's Quarterly Report on Form 10-Q for its fiscal quarter ended September
30, 1996 filed by the Company with the Commission on November 14, 1996; (v) the
Company's Current Report on Form 8-K dated May 31, 1996 and filed with the
Commission on June 7, 1996; (vi) the Company's Current Report on Form 8-K dated
June 6, 1996 and filed with the Commission on June 10, 1996; (vii) the Company's
Current Report on Form 8-K dated May 31, 1996 and filed with the Commission on
June 14, 1996; (viii) the Company's Current Report on Form 8-K dated October 24,
1996 and filed with the Commission on October 24, 1996; (ix) the Company's
Current Report on Form 8-K dated December 19, 1996 and filed with the Commission
on December 24, 1996; and (x) the description of the Company's Common Stock
contained in the Company's Registration Statements on Form 8-A filed with the
Commission on November 30, 1992 and October 9, 1996, including any amendment or
report filed for the purposes of updating such description.
All reports and other documents filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of this Prospectus and prior to the termination of the offering of the
Shares made by this Prospectus shall be deemed to be incorporated herein by
reference and to be a part hereof on and from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Prospectus shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or incorporated herein by reference or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon the written or oral
request of such person, a copy of any and all documents incorporated by
reference in this Prospectus (not including, however, the exhibits to such
documents unless such exhibits are specifically incorporated by reference in
such information). Such requests should be directed to: SEACOR Holdings, Inc.,
1370 Avenue of the Americas, 25th Floor, New York, New York 10019, Attention:
Secretary, telephone number (212) 307-6633.
No person is authorized in connection with any offering made hereby to
give any information or to make any representation other than as contained in
this Prospectus and, if given or made, such information or representation must
not be relied upon as having been authorized by the Company, any Selling
Stockholder or any underwriter. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy any of the Shares offered hereby to
any person in any jurisdiction in which it is unlawful to make any such offer or
solicitation. Neither the delivery of this Prospectus nor any sale made
hereunder shall under any circumstance imply that there has been no change in
the affairs of the Company since the date hereof.
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SUMMARY
When included in this Prospectus or in documents incorporated herein by
reference, the words "expects," "intends," "anticipates," "believes,"
"estimates" and analogous expressions are intended to identify forward-looking
statements. Such statements, which include statements contained in "Risk
Factors," inherently are subject to a variety of risks and uncertainties that
could cause actual results to differ materially from those projected, such risks
and uncertainties include, among others, general economic and business
conditions, industry fleet capacity, changes in foreign and domestic oil and gas
exploration and production activity, competition, changes in foreign political,
social and economic conditions, regulatory initiatives and compliance with
governmental regulations, customer preferences and various other matters, many
of which are beyond the Company's control. These forward-looking statements
speak only as of the date of this Prospectus. The Company expressly disclaims
any obligation or undertaking to release publicly any updates or any change in
the Company's expectations with regard thereto or any change in events,
conditions or circumstances on which any statement is based.
THE COMPANY
The Company is a major provider of offshore marine services to the oil and
gas exploration and production industry and is one of the leading providers of
oil spill response services to owners of tank vessels and oil storage,
processing and handling facilities. The Company operates a diversified fleet of
over 315 vessels primarily dedicated to servicing offshore oil and gas
exploration and production facilities in the U.S. Gulf of Mexico, the North Sea,
offshore West Africa and Mexico. The recent consummation of the Smit Transaction
(defined below) has expanded the Company's global operations by giving it market
presence in the Far East, Latin America and the Mediterranean. Additionally, the
recent consummation of the Galaxie Transaction (defined below) has enlarged the
Company's fleet capacity in the U.S. Gulf of Mexico. The Company's offshore
service vessels deliver cargo and personnel to offshore installations, handle
anchors for drilling rigs and other marine equipment, support offshore
construction and maintenance work and provide standby safety support. The
Company also furnishes vessels for special projects such as well stimulation,
seismic data gathering, freight hauling and line handling. In connection with
its offshore marine services, the Company, through Energy Logistics, Inc.
("ELI"), a joint venture with Baker Energy, a unit of the Michael Baker
Corporation, a U.S. public company, also offers logistics services for the
offshore industry, including the coordination and provision of marine, air and
land transportation, materials handling and storage, inventory control and
"just-in-time" procurement.
The Company's environmental services business principally provides
contractual oil spill response services to those who store, transport, produce
or handle petroleum and certain other non-petroleum oils as required by the Oil
Pollution Act of 1990 ("OPA 90") and various state regulations. The Company's
services, provided primarily through its indirect wholly owned subsidiary,
National Response Corporation ("NRC"), include training for and supervision of
activities in response to oil spill emergencies and the maintenance of
specialized equipment for immediate deployment and spill response. NRC has acted
as the principal oil spill response contractor on several of the largest oil
spills that have occurred in the United States since the enactment of OPA 90.
SEACOR was incorporated in Delaware in December 1989 for the purpose of
acquiring the capital stock of NICOR Marine, Inc. and certain of its marine
affiliates and subsidiaries which, at the time of the acquisition, owned 36 and
managed five vessels and to acquire SCF Offshore, Inc. which, at the time of
acquisition, owned two vessels.
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SEACOR'S principal executive offices are located at 11200 Westheimer,
Suite 850, Houston, Texas 77042, where its telephone number is (713) 782-5990.
Unless the context indicates otherwise, any reference in this Prospectus
to the "Company" refers to SEACOR Holdings, Inc. and its consolidated
subsidiaries, including NRC, and any references in this Prospectus to "SEACOR"
refer to SEACOR Holdings, Inc.
RECENT DEVELOPMENTS
GALAXIE TRANSACTION
On January 3, 1997, the Company acquired substantially all of the offshore
marine assets, including vessels, owned by Galaxie Marine Service, Inc.,
Moonmaid Marine, Inc., Waveland Marine Service, Inc. and Triangle Marine, Inc.
(collectively, "Galaxie"), for aggregate consideration of $23.61 million,
consisting of $20.56 million in cash and 50,000 shares of Common Stock (which,
based on the closing sale price of the Common Stock as reported on the NYSE
Composite Tape on the NYSE on January 2, 1992, had an aggregate value of
approximately $3.05 million) (the "Galaxie Transaction"). The assets acquired
included 24 vessels (one offshore supply vessel, one mini supply vessel, five
crew boats and 17 utility boats) and other related tangible and intangible
assets.
In connection with the Galaxie Transaction, SEACOR and Galaxie entered
into a certain investment and registration rights agreement (the "Galaxie
Registration Rights Agreement"); pursuant to which SEACOR has agreed to prepare
and file with the Commission, on or prior to March 31, 1997, a "shelf"
registration statement to permit resales by Galaxie, from time to time, of the
50,000 shares of Common Stock received by it in the Galaxie Transaction. See
"Selling Stockholders."
SMIT TRANSACTION
On December 19, 1996, the Company and certain of its subsidiaries acquired
substantially all of the offshore vessel assets and certain related joint
venture interests owned by Smit Internationale N.V. ("Smit") and its
subsidiaries (the "Smit Transaction"). The aggregate consideration, including
amounts payable under certain lease purchase arrangements for two vessels,
consists of: (i) approximately $71.1 million in cash, (ii) 712,000 shares of
Common Stock and (iii) up to $22.0 million principal amount of the Company's
5-3/8% Convertible Subordinated Notes Due November 15, 2006 (the "Smit Notes").
The Smit Notes were issued under an Indenture dated as of November 1, 1996
between the Company and First Trust National Association, as trustee. The Smit
Notes are convertible, in whole or in part, at the option of the holder at any
time prior to the close of business on the business day next preceding November
15, 2006, unless previously redeemed, into shares of Common Stock at a
conversion price of $66.00 per share (equivalent to a conversion rate of 15.1515
shares per $1,000 principal amount of the Smit Notes), subject to adjustment in
certain circumstances. The Smit Notes are redeemable at the Company's option at
any time from and after November 24, 1999 at the redemption prices specified
therein, together with accrued and unpaid interest to the date of repurchase. As
of January 31, 1997, the Company has issued $15.25 million principal amount of
the Smit Notes. In addition, the definitive agreements for the Smit Transaction
provide for the payment by the Company, in a combination of cash and
non-convertible notes, of up to $47.2 million of additional consideration based
upon the earnings performance of certain assets acquired from Smit during 1997
and 1998. The acquired assets include 24 vessels sold directly by Smit and
Smit's interests in certain joint ventures that own and operate own 21 vessels.
Pursuant to the Smit Transaction, the Company has also agreed to use
commercially reasonable efforts to nominate and elect to SEACOR's Board of
Directors one person designated by Smit for so long as Smit is the beneficial
owner of at least 5% of the outstanding Common Stock of the Company.
Furthermore, in a press release dated December 19, 1996, SEACOR announced its
intention to change its corporate name to SEACOR-SMIT Inc.
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In addition, on December 19, 1996, the Company and Smit signed a letter
of intent providing for the acquisition by the Company of Smit's joint venture
interests in a certain Malaysian joint venture which owns and operates four
vessels (the "Malaysian Purchase") for aggregate consideration of approximately
$12.9 million. The terms of the Malaysian Purchase are preliminary in nature and
there can be no assurance that any definitive transaction documentation will be
entered into or, if entered into, that the Malaysian Purchase will be
consummated.
In connection with the Smit Transaction, SEACOR and Smit International
Overseas B.V., a Netherlands corporation and wholly-owned subsidiary of Smit
("Smit Overseas"), entered into a certain investment and registration rights
agreement (the "Smit Registration Rights Agreement"); pursuant to which SEACOR
has agreed to prepare and file with the Commission a "shelf" registration
statement to permit, from time to time, resales by Smit Overseas of the 712,000
shares of Common Stock (offered hereby), Smit Notes and shares of Common Stock
issuable upon conversion thereof received by it in the Smit Transaction (not
offered hereby). In addition, SEACOR had agreed to provide Smit Overseas with
certain incidental or "piggyback" registration rights. See "Selling
Stockholders."
5-3/8% CONVERTIBLE SUBORDINATED NOTES PLACEMENT
On November 5, 1996, the Company completed the private placement (the
"November 1996 Notes Placement") of $172.5 million aggregate principal amount of
its 5-3/8% Convertible Subordinated Notes Due November 15, 2006 (the "Initial
Notes"). The Initial Notes were issued under the Indenture. The Initial Notes
are convertible, in whole or in part, at the option of the holder at any time
prior to the close of business on the business day next preceding November 15,
2006, unless previously redeemed, into shares of Common Stock at a conversion
price of $66.00 per share (equivalent to a conversion rate of 15.1515 shares of
Common Stock per $1,000 principal amount of the Initial Notes), subject to
adjustment in certain circumstances. The Initial Notes are redeemable at the
Company's option at any time on and after November 24, 1999 at the redemption
prices specified therein, together with accrued and unpaid interest to the date
of repurchase.
In connection with the November 1996 Notes Placement, SEACOR and Credit
Suisse First Boston Corporation, Salomon Brothers Inc, and Wasserstein Perella
Securities, Inc., as the initial purchasers, entered into a certain registration
rights agreement (the "November 1996 Registration Rights Agreement"); pursuant
to which SEACOR has agreed to prepare and file with the Commission a "shelf"
registration statement to permit resales by the holders of the Initial Notes and
the shares of Common Stock issuable upon conversion thereof.
NEW VESSEL CONSTRUCTION
The Company has committed to build vessels over the next two years for an
aggregate capital expenditure of approximately $108.0 million. Approximately
$20.5 million has been funded to date and approximately $9.4 million is
committed to be paid by Transportation Maritima Mexicana S.A. de C.V. ("TMM"),
pursuant to a Memorandum of Understanding dated September 25, 1996 between TMM
and the Company covering several vessels.
1996 COMMON STOCK OFFERING
On July 3, 1996, the Company sold in an underwritten public offering
909,235 shares of its Common Stock at $43.50 per share (the "1996 Common Stock
Offering"). In conjunction therewith, 842,355 shares of Common Stock were sold
by certain of the Company's stockholders. The Company received net proceeds of
approximately $37.7 million from its sale of 909,235 shares of Common Stock, of
which $26.0 million was used to purchase four vessels acquired from Compagnie
Nationale de Navigation, a French corporation ("CNN"),
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pursuant to the 1996 CNN Transaction (defined below), and to prepay $9.6 million
of indebtedness then owed by the Company to CNN. The Company has allocated the
remainder of such net proceeds for general corporate purposes.
1996 CNN TRANSACTION
On July 3, 1996, pursuant to an agreement entered into by the Company and
CNN in June 1996, the Company acquired from CNN six vessels for $22.65 million
in cash (the "1996 CNN Transaction"). At closing, the Company prepaid $9.6
million aggregate principal amount of the indebtedness outstanding under
promissory notes previously issued to CNN by a subsidiary of the Company. In
addition, CNN converted $4.75 million principal amount of the Company's 2.5%
Convertible Subordinated Notes Due January 1, 2004 (the "2.5% Notes") into
156,650 shares of Common Stock (in accordance with the terms of the 2.5% Notes),
and subsequently sold all 616,598 shares of Common Stock then owned by it
(including the shares of Common Stock received by CNN upon such conversion) in
the 1996 Common Stock Offering.
6.0% NOTE CONVERSION
On July 12, 1996, following notice from the Company of the redemption on
such date of all $55.25 million principal amount of its then outstanding 6.0%
Convertible Subordinated Notes Due July 1, 2003 (the "6.0% Notes"), the holders
thereof converted all of such 6.0% Notes into an aggregate of 2,156,083 shares
of Common Stock issued by the Company.
MCCALL ACQUISITION
On May 31, 1996, the Company acquired McCall Enterprises, Inc. and its
affiliated companies (collectively, the "McCall Companies") which, at the date
of such acquisition, operated 36 crew boats and five utility boats dedicated to
serving the oil and gas industry primarily in the U.S. Gulf of Mexico. Such
acquisition (the "McCall Acquisition"), which has been accounted for by the
Company as a pooling-of-interests, was accomplished pursuant to a series of
merger and share exchange agreements involving the Company and certain of its
subsidiaries, the McCall Companies and the former stockholders of the McCall
Companies. Pursuant to the McCall Acquisition, on August 9, 1996, the Company
issued an aggregate of 1,306,550 shares of Common Stock to the former
stockholders of the McCall Companies.
----------------------
For additional information relating to the recent developments described
above, see the Company's Current Reports on Form 8-K referred to above under
"Incorporation of Certain Information by Reference." For additional information
relating to the Company's business, operations, properties and other matters,
see the Company's Annual Report on Form 10-K for its fiscal year ended December
31, 1995 and its Quarterly Reports on Form 10-Q for its fiscal quarters ended
March 31, 1996, June 30, 1996 and September 30, 1996 referred to above under
"Incorporation of Certain Information by Reference."
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RISK FACTORS
PROSPECTIVE INVESTORS IN THE SHARES OFFERED HEREBY SHOULD CAREFULLY
CONSIDER THE FOLLOWING RISK FACTORS, IN ADDITION TO ALL OF THE OTHER INFORMATION
CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS.
INDUSTRY CONDITIONS
OFFSHORE MARINE SERVICES; MARKET VOLATILITY
The Company's offshore vessel operations are dependent on activity in the
offshore oil and gas exploration and production industry. The level of
exploration and development of offshore areas is affected by both short-term and
long-term trends in oil and gas prices which, in turn, are related to the demand
for petroleum products and the current availability of oil and gas resources.
The level of offshore activity also is related to local policies that influence
drilling activities. In recent years, oil and gas prices and, therefore, the
level of offshore exploration and drilling activity have been volatile. A
significant or prolonged decline in future oil and gas prices would likely
result in reduced exploration and development of offshore areas and a decline in
the demand for offshore marine services. Such reduced activity could have a
material adverse effect on the Company's financial condition and results of
operations.
Charter rates for the Company's vessels also are dependent on the supply of
offshore marine vessels. Excess vessel capacity in the industry can result from
refurbishment of "mothballed" vessels, conversion of vessels formerly dedicated
to services other than oil support and related offshore marine activities and
construction of new vessels. The addition of new capacity to the worldwide
offshore marine fleet would increase competition in those markets where the
Company presently operates which, in turn, could have a material adverse effect
on the Company's financial condition and results of operations.
ENVIRONMENTAL SERVICES
The environmental response business is dependent upon the development,
interpretation and enforcement of regulations promulgated under OPA 90 and, to a
lesser extent, upon oil spill response regulations developed at the state level.
There currently is no uniformity of regulatory development or enforcement on a
federal or state level. The Company believes that it generally benefits from
increasingly stringent oil spill regulations and from increased enforcement of
such regulations (which, in each case, increases demand for NRC's services).
However, a relaxation of oil spill requirements or decreased enforcement of such
regulations could reduce demand for NRC's services and, therefore, have a
material adverse effect on the Company's financial condition and results of
operations.
NRC is a "classified" Oil Spill Removal Organization ("OSRO"). The United
States Coast Guard (the"Coast Guard") classifies OSROs based on their overall
resource capability to respond to various types and sizes of oil spills in
different operating environments such as rivers/canals, inland waters and oceans
(separated into nearshore, offshore and open ocean areas). In November 1993,
shortly after the initial OSRO program guidelines were published, NRC applied
for and received an "E" classification, the highest classification level
achievable. The Coast Guard reserves the right to review NRC's resource
capability at any time based on the Company's performance during actual response
and cleanup activities and exercises and may, under certain circumstances, amend
or revoke the classification. In September 1995, the Coast Guard proposed
revised draft OSRO guidelines and requested industry and regulatory comments. On
December 28, 1995, the revised OSRO guidelines were published. Significant
revisions include geographic-specific classifications, a requirement to ensure
the availability of non-dedicated resources in quantities twice what is required
of dedicated resources, proof of subcontractor support and more stringent
oversight by the Coast Guard. NRC's "E" classification under the original
program has expired. NRC has reapplied for new classification under the revised
guidelines and has
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NYFS11...:\93\73293\0004\1711\FRM1297U.090
<PAGE>
received an interim classification as of December 24, 1996. The Coast Guard must
verify the information in the application, and there can be no assurance that
NRC will receive a final classification or a final classification equivalent to
its current classification.
RELIANCE ON SIGNIFICANT CUSTOMERS
The Company offers offshore marine services primarily to the major
integrated oil companies and large independent oil and gas exploration and
production companies. The percentage of revenues attributable to an individual
customer varies from time to time, depending on the level of oil and gas
exploration undertaken by a particular customer, the suitability of the
Company's vessel for the customer's projects and other factors, many of which
are beyond the Company's control. For the nine months ended September 30, 1996,
approximately 14.1% of the Company's marine operating revenues were received
from Mobil Oil Corporation.
The Company offers its environmental and oil spill response services
primarily to the domestic and international shipping community, including dry
cargo vessel owners and owners of facilities such as refineries, pipelines,
exploration and production platforms and tank terminals. The Company presently
has approximately 300 customers and provides retainer coverage to approximately
1,750 self-propelled vessels, 800 barges and 200 facilities. The Company's
retainer arrangements with these customers include both short-term contracts
(one year or less) and long-term agreements, in some cases as long as seven
years. For the nine months ended September 30, 1996, Coastal and Sun Oil, NRC's
two largest customers, accounted for 35.8% of NRC's retainer revenues,
collectively.
GOVERNMENT REGULATION
Both the Company's offshore marine operations and environmental response
operations are materially affected by government regulation in the form of
international conventions, federal and state laws and regulations in
jurisdictions where the Company's vessels operate and/or are registered. These
regulations govern oil spills and other matters of environmental protection,
worker health and safety, and the manning, construction and operation of
vessels.
The Company believes that it is presently in material compliance with the
environmental laws and regulations to which the Company's operations are
subject. The Company is not a party to any pending proceeding and is unaware of
any threatened litigation or other judicial, administrative or arbitrable
environmental proceedings which, if adversely determined, would have a material
adverse effect on the financial condition or results of operations of the
Company. However, the risks of incurring substantial compliance costs and
liabilities and penalties for non-compliance are inherent in offshore marine
service operations. There can be no assurance that significant costs,
liabilities, and penalties will not be incurred by or imposed on the Company in
the future.
OFFSHORE MARINE SERVICES
OPA 90 requires owners and operators of tank vessels and certain other oil
handling facilities to obtain certificates of financial responsibility for
potential oil spill liability. The Company currently satisfies this requirement
with respect to Company vessels required to maintain such certificates.
ENVIRONMENTAL SERVICES
The Company's environmental services are conducted through NRC, an
indirect, wholly-owned subsidiary of the Company. OPA 90 regulations require
certain vessels to identify in their response plans the availability of response
resources or OSROs they will use in the event of an oil spill. NRC's primary
sources of revenue are retainer arrangements with customers for making available
its spill removal vessels and related marine equipment
9
<PAGE>
in the event of a spill. Authority to implement these regulations is divided
among several regulatory agencies: the Coast Guard, the U.S. Environmental
Protection Agency, the U.S. Minerals Management Service and the Office of
Pipeline Safety. Currently, there is no uniformity of regulatory interpretation
or enforcement by these agencies. On the state level, enforcement of analogous
regulations varies from state to state. Due to this lack of uniformity, the
amount of response resources required to be made available to the Company's
customers is unclear. In addition, because regulatory enforcement initiatives
affect the demand for NRC's retainer coverage, state and federal regulatory
policies may have a material impact on NRC's results of operations.
In addition to establishing policies which impact the demand for and value
of NRC's services, the Coast Guard, pursuant to its program for classifying
OSROs, provides classified OSROs a market advantage over non-classified service
providers. A classified OSRO provides its clients a means of verifying that such
entity has the necessary response resources available. Revocation of such
"classification" or changes in the requirements could have a material adverse
effect on the Company's financial condition or results of operations.
In providing spill response services, NRC is subject to the federal
responder immunity doctrine, otherwise known as the "Good Samaritan" doctrine,
which holds the Company harmless from liability for any spills that result from
the Company's response efforts, unless the Company is found to be grossly
negligent or to have engaged in willful misconduct. While most of the U.S.
states in which NRC provides service have adopted the Good Samaritan doctrine,
several states have not. In the event that NRC is determined to have acted with
gross negligence or to have engaged in willful misconduct in providing spill
response services, NRC could be jointly and severally liable with the local
contractor and the responsible party for any resulting damages. Although NRC
maintains insurance coverage against such risks which it considers adequate,
there can be no assurance that such coverage adequately will cover future claims
that may arise.
OPERATING RISKS AND INSURANCE
The operation of offshore support vessels is subject to various risks,
including catastrophic marine disaster, adverse weather conditions, mechanical
failure, collision, oil and hazardous substance spills and errors of navigation
by vessel pilots, all of which represent a threat to the safety of personnel and
to the Company's vessels, cargo, equipment under tow and other property, as well
as the environment. The primary operating risks inherent in the environmental
response business are the failure to meet the planning guidelines of federal and
state statutes, or gross negligence in providing spill response services. The
occurrence of the foregoing events either in the offshore marine services or
environmental services business could result in revenue and casualty loss,
increased costs and significant liability by the Company to third parties. The
Company maintains insurance coverage against these risks which it considers
adequate and it has not in the past experienced a loss in excess of policy
limits. There can be no assurance, however, that the Company's existing
insurance coverage can be renewed at commercially reasonable rates or that such
coverage will be adequate to cover future claims that may arise.
RELIANCE ON FOREIGN OPERATIONS
For the nine months ended September 30, 1996, approximately 27.9% of the
Company's offshore marine revenues were derived from foreign operations. As a
result of the consummation of the Smit Transaction, the Company expects to
derive a substantially greater portion of its revenues from foreign operations
and, accordingly, its foreign operations as a percentage of its total offshore
marine revenues will increase materially. The Company's foreign offshore marine
operations are subject to various risks inherent in conducting business in
foreign nations. These risks include, among others, political instability,
potential vessel seizure, nationalization of assets, currency restrictions and
exchange rate fluctuations, import-export quotas and other forms of public and
governmental regulation, all of which are beyond the control of the Company.
Although, historically, the Company's operations have not been affected
materially by such conditions or events, it is not possible to predict whether
any such conditions or events might develop in the future. The occurrence of any
one or more of such
10
<PAGE>
conditions or events could have a material adverse effect on the Company's
financial condition and results of operations.
The Company currently operates 32 vessels offshore West Africa, which
primarily service the local offshore oil and gas industry. The Company's
operations offshore West Africa are highly dependent on the level of activity in
Nigeria. At this time, Nigeria, because of its domestic policies, has become the
subject of certain international sanctions, including the suspension of
development aid by the European Union and the suspension of Nigeria from the
Commonwealth of Nations. Additional sanctions may be imposed in the future,
which could include economic sanctions, such as an oil embargo. Economic
sanctions or an oil embargo would have a significant negative impact on activity
in the oil and gas industry offshore West Africa, which in turn would have a
negative impact on the Company's operations in that area. There can be no
assurance that the effects of economic sanctions or an oil embargo with respect
to Nigeria would not have a material adverse effect on the Company's financial
condition and results of operations.
CURRENCY FLUCTUATIONS
Due to its foreign operations, the Company is exposed to currency
fluctuations and exchange rate risks. As a result of the consummation of the
Smit Transaction, the Company will have greater exposure to currency
fluctuations and exchange rate risks. To minimize the financial impact of these
risks, the Company attempts to contract the majority of its services in U.S.
dollars. However, in certain of the Company's foreign operations, the Company
collects revenues and pays expenses in local currency. For financial statement
reporting purposes, these accounts are translated into U.S. dollars at the
weighted average exchange rates during the relevant period.
Because the Company conducts substantially all of its operations in U.S.
dollars, to the extent the value of the U.S. dollar decreases in relation to the
value of applicable foreign currencies, such decrease potentially could
adversely affect the Company's operating revenues in foreign jurisdictions. To
date, currency fluctuations have not had a material impact on the Company's
financial condition or results of operations and the Company is not a party to
any currency hedging arrangements.
AGE OF FLEET
As of September 30, 1996, the average age of the Company's owned offshore
marine service fleet was approximately 14.5 years, whereas, at such date, the
average age of the Company's owned environmental service response fleet was 26.5
years. The consummation of the Smit Transaction and the Galaxie Transaction will
not materially alter the average age of the Company's fleet. NRC's vessels
primarily operate in a "stand-by" mode with minimal wear and, consequently,
management does not consider age to be a reliable indicator of the commercial
viability of the vessels. The Company believes that after an offshore supply
vessel has been in service for approximately 25 years, the amount of
expenditures (which typically increase with vessel age) necessary to satisfy
required marine certification standards may not be economically justifiable. If
the Company is unable to replace its vessels at the end of their useful economic
lives, the cost of new building could materially increase the Company's capital
expenditures. There can be no assurance that the Company will be able to
maintain its fleet by extending the economic life of existing vessels or
acquiring new or used vessels, or that the Company's financial resources will be
sufficient to enable it to make capital expenditures for such purposes.
COMPETITION
Both the Company's marine and environmental segments operate in highly
competitive industries. In addition to price, service and reputation, the
principal competitive factors for offshore supply fleets include the existence
of national flag preference, operating conditions and intended use (all of which
determine the suitability of vessel types), complexity of maintaining logistical
support and the cost of transferring equipment from one market to another.
11
<PAGE>
The principal competitive factors in the environmental services business
are price, service, reputation, experience and operating capabilities. The
Company believes that the lack of uniformity of regulatory development and
enforcement on an international, federal and state level has created a lower
barrier of entry in several market segments which has increased the number of
competitors. NRC faces competition from the Marine Spill Response Corporation (a
non-profit corporation funded by the major integrated oil companies), other
industry cooperatives, and also from smaller contractors who target specific
market niches.
DIVIDENDS
SEACOR has not paid any cash dividends in respect of the Common Stock since
its inception in December 1989 and presently does not intend to pay any such
dividends in the foreseeable future. Instead, SEACOR intends to retain earnings
for working capital and to finance the expansion of its business operations. In
addition, as a holding company, the Company's ability to pay any cash dividends
is dependent on the earnings and cash flows of its operating subsidiaries and
their ability to make funds available to the Company. Pursuant to the terms of
the Company's bank credit facility with Den norske Bank A/S (the "DnB
Facility"), SEACOR, without the prior written consent of Den norske Bank A/S, is
prohibited through February 28, 1997 from paying cash dividends in respect of
the Common Stock.
LIMITATION ON FOREIGN OWNERSHIP OF COMMON STOCK
The Company is subject to the Shipping Act, 1916, as amended (the "Shipping
Act"), and the Merchant Marine Act of 1920, as amended (the "1920 Act," and
together with the Shipping Act, the "Acts"), which govern, among other things,
the ownership and operation of vessels used to carry cargo between U.S. ports.
The Acts require that vessels engaged in the U.S. coastwise trade be (i) owned
by U.S. citizens and (ii) built in the United States. For a corporation engaged
in the U.S. coastwise trade to be deemed a citizen of the U.S., (a) the
corporation must be organized under the laws of the U.S. or of a state,
territory or possession thereof, (b) each of the president or other chief
executive officer and the chairman of the board of directors of such corporation
must be a U.S. citizen, (c) no more than a minority of the number of directors
of such corporation necessary to constitute a quorum for the transaction of
business can be non-U.S. citizens and (d) at least 75% of the interest in such
corporation must be owned by U.S. "Citizens" (as defined in the Acts). Should
the Company fail to comply with the U.S. citizenship requirements of the Acts,
it would be prohibited from operating its vessels in the U.S.
coastwise trade during the period of such non-compliance.
To facilitate compliance with the Acts, SEACOR's Restated Certificate of
Incorporation: (i) contains provisions limiting the aggregate percentage
ownership by foreigners of any class of the Company's capital stock (including
the Common Stock) to 22.5% of the outstanding shares of each such class to
ensure that such foreign ownership will not exceed the maximum percentage
permitted by applicable maritime law (presently 25.0%), and authorizes the Board
of Directors, under certain circumstances, to increase the foregoing percentage
to 24.0%, (ii) requires institution of a dual stock certification system to help
determine such ownership and (iii) permits the Board of Directors to make such
determinations as reasonably may be necessary to ascertain such ownership and
implement such limitations. In addition, the Company's Amended and Restated
By-laws provide that the number of foreign directors shall not exceed a minority
of the number necessary to constitute a quorum for the transaction of business
and restrict any officer who is not a U.S. citizen from acting in the absence or
disability of the Chairman of the Board of Directors, Chief Executive Officer or
the President, all of whom must be U.S. citizens. At January 16, 1997,
approximately 5.7% of the outstanding shares of Common Stock of the Company were
owned by foreigners (without giving effect to the conversion of the Smit Notes
or the Initial Notes of the Company).
12
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USE OF PROCEEDS
The Shares are being offered hereby solely for the accounts of the Selling
Stockholders pursuant to certain investment and registration rights agreements.
The Company will not receive any proceeds from the sale of the Shares. See
"Selling Stockholders."
DIVIDEND POLICY
SEACOR has not paid any cash dividends in respect of the Common Stock since
its inception in December 1989, and has no present intention to pay any such
dividends in the foreseeable future. Instead, SEACOR intends to retain earnings
for working capital and to finance the expansion of its business operations.
13
<PAGE>
SELECTED HISTORICAL FINANCIAL INFORMATION
The following table sets forth selected consolidated income statement and
balance sheet information for each of the five years in the period ended
December 31, 1995, which information has been derived from consolidated
financial statements of the Company, which, in the case of the three-year period
ended December 31, 1995, have been audited by Arthur Andersen LLP, independent
auditors, and are included elsewhere in this Prospectus. The selected
consolidated income statement and balance sheet data for the nine months ended
September 30, 1995 and 1996 are derived from the Company's unaudited financial
statements. Interim results, in the opinion of management, include all
adjustments (consisting solely of normal recurring adjustments) necessary to
present fairly the financial information for such periods; however, such results
are not necessarily indicative of the results which may be expected for any
other interim period or for a full year. The following data should be read in
conjunction with the Consolidated Financial Statements and the notes thereto
included elsewhere in this Prospectus.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
----------------------------------------------------------- ----------------
1991 1992 1993 1994 1995 1995 1996
------ ------ ------ ------ ------ ------ ------
(in thousands, except share data)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Operating Revenue:
Marine $ 65,878 $ 74,317 $ 92,168 $ 93,985 $ 104,894 $ 65,957 $ 138,043
Environmental-
Oil spill response -- -- -- -- 8,927 8,367 8,547
Retainer and other services -- -- -- -- 12,838 7,721 13,703
--------- --------- --------- --------- --------- --------- ---------
65,878 74,317 92,168 93,985 126,659 82,045 160,293
--------- --------- --------- --------- --------- --------- ---------
Costs and Expenses:
Cost of oil spill
response -- -- -- -- 7,643 7,117 7,655
Operating expenses-
Marine 38,520 46,775 53,958 55,860 66,205 42,819 77,137
Environmental -- -- -- -- 4,580 2,874 4,511
Administrative and general . 4,500 5,211 7,187 7,278 13,953 8,249 16,876
Depreciation and amortization 9,965 12,804 12,107 14,108 18,842 12,773 17,791
--------- --------- --------- --------- --------- --------- ---------
Operating income 12,893 9,527 18,916 16,739 15,436 8,213 36,323
Interest Expense 6,678 7,044 4,782 5,422 6,681 4,149 4,007
Interest (Income) (449) (316) (1,063) (1,874) (2,370) (1,788) (1,731)
Gain/(loss) from equipment
sales or retirements -- -- (8) (388) 3,850 1,814 1,448
Other income (expense) (410) (1,197) 122 (267) 667 248 (498)
--------- --------- --------- --------- --------- --------- ---------
Income Before Income Taxes,
Minority Interest, Equity
in Net Earnings of 50% or
Less Owned Companies and
Extraordinary Item 6,254 1,602 15,311 12,536 15,642 7,914 34,997
Income Tax Expense 2,200 652 5,339 4,368 5,510 2,852 12,445
--------- --------- --------- --------- --------- --------- ---------
Income Before Minority Interest,
Equity in Net Earnings of 50%
or Less Owned Companies and
Extraordinary Item 4,054 950 9,972 8,168 10,132 5,062 22,552
Minority Interest in (Income)
Loss of a Subsidiary -- 41 (51) 184 321 250 176
Equity in Net Earnings of 50%
or Less Owned Companies -- -- 287 975 872 746 766
--------- --------- --------- --------- --------- --------- ---------
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<CAPTION>
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
----------------------------------------------------------- ----------------
1991 1992 1993 1994 1995 1995 1996
------ ------ ------ ------ ------ ------ ------
(in thousands, except share data)
<S> <C> <C> <C> <C> <C> <C> <C>
Income Before
Extraordinary Item 4,054 991 10,208 9,327 11,325 6,058 23,494
Extraordinary Item-Loss on
Extinguishment of Debt, Net
(less applicable income taxes) -- -- (1,093) -- -- -- 807
--------- --------- --------- --------- --------- --------- ---------
Net Income $ 4,054 $ 991 $ 9,115 $ 9,327 $ 11,325 $ 6,058 $ 22,687
========= ========= ========= ========= ========= ========= =========
Net Income
Per Common Share
Assuming no dilution(1) $ 0.83 $ 0.19 $ 1.28 $ 1.31 $ 1.50 $ 0.82 $ 2.08
Assuming full dilution 0.83 0.19 1.22 1.22 1.36 0.80 1.87
STATEMENT OF CASH FLOWS DATA:
Cash provided by operating
activities $ 17,646 $ 15,311 $ 23,416 $ 21,150 $ 9,939 $ 5,378 $ 40,455
Cash provided by (used in)
investing activities (40,605) 6,048 (24,251) (4,855) (78,695) (69,449) (33,873)
Cash provided by (used in)
financing activities 22,323 852 17,657 (7,714) 53,291 53,210 (6,898)
OTHER FINANCIAL DATA:
EBITDA(2) $ 23,229 $ 24,570 $ 32,366 $ 32,923 $ 35,964 $ 22,386 $ 55,493
Ratio of earnings to
fixed charges 1.86 1.21 3.93 3.17 3.18 2.76 9.28
BALANCE SHEET DATA (AT PERIOD END):
Cash and temporary
investments $ 9,567 $ 19,564 $ 36,008 $ 44,637 $ 28,786 $ 33,727 $ 28,484
Total assets 187,594 181,765 233,511 238,145 350,883 330,448 378,571
Total debt 75,179 50,653 87,959 79,517 110,555 147,303 8,231
Stockholders' equity 70,080 89,639 100,532 111,482 183,464 123,677 302,330
- ---------------------
<FN>
(1) This computation is submitted in accordance with Regulation S-K, Item
601(b)(11). For the periods noted, it is contrary to APB Opinion No. 15 as
per footnote to paragraph 14 thereto which does not require the inclusion
of common stock equivalents in the earnings per share calculation if the
dilutive effect is less than 3%.
(2) As used herein, "EBITDA" is operating income plus depreciation and
amortization, amortization of deferred mobilization costs, which is
included in marine operating expenses, minority interest in (income) loss
of subsidiary and equity in net earnings of 50% or less owned companies.
EBITDA should not be considered by an investor as an alternative to net
income as an indicator of the Company's operating performance or as an
alternative to cash flows as a better measure of liquidity.
</FN>
</TABLE>
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SELLING STOCKHOLDERS
The stockholders party to the Smit Registration Rights Agreement, the
Galaxie Registration Rights Agreement and certain transferees of the
stockholders listed on the signature pages of the Amended and Restated
Stockholders' Agreement, dated as of December 16, 1992, who have agreed to be
bound by the terms applicable to the stockholders thereunder, are listed in the
table below (collectively, the "Registration Rights Agreements"). SEACOR has
filed the Registration Statement of which this Prospectus forms a part and has
also agreed to bear certain expenses related thereto and to indemnify each
Selling Stockholder against certain liabilities, including liabilities arising
under the federal securities laws and has agreed to grant certain incidental or
"piggyback" registration rights to the Selling Stockholders. For a description
of the Smit Transaction and the Galaxie Transaction, see "Recent Developments."
SEACOR has filed with the Commission the Registration Statement of which
this Prospectus forms a part with respect to the sale by the Selling
Stockholders of the Shares from time to time on the NYSE (or through the
facilities of any national securities exchange or U.S. automated inter-dealer
quotation system of a registered national securities association, on which the
Shares are then listed, admitted to unlisted trading privileges or included for
quotation) or in privately negotiated transactions, and has agreed to use its
best efforts to keep the Registration Statement current and effective in the
case of (i) the Smit Registration Rights Agreement, until the third anniversary
of the date on which the Registration Statement was first declared effective by
the Commission and (ii) the Galaxie Registration Rights Agreement, until the
second anniversary of the date on which the Registration Statement was first
declared effective by the Commission (subject to suspension periods imposed by
the Company under certain circumstances), and (iii) in the case of clauses (i)
and (ii), such shorter period in which all of the securities registered pursuant
to such agreements have been sold.
The table below sets forth certain information regarding the beneficial
ownership of the Shares by each Selling Stockholder prior to the offering and as
adjusted to give effect to the sale of all of the Shares offered hereby. The
Shares are being registered to permit public secondary trading of the Shares and
the Selling Stockholders may offer the Shares for sale from time to time. See
"Plan of Distribution."
16
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<TABLE>
<CAPTION>
Beneficial Ownership Number of Beneficial Ownership
at January 16, 1997(1) Shares After Offering(1)
-------------------------- Covered by ----------------------
Number Percent by this Number Percent
Selling Stockholders of Shares of Class Prospectus of Shares of Class
- -------------------- --------- -------- ---------- ---------- --------
<S> <C> <C> <C> <C> <C>
Smit International 943,061(2) 6.64% 712,000 231,061(2) 1.63%
Overseas B.V.
c/o Smit Internationale N.V.
1 Zalmstraat
3016 DS Rotterdam
The Netherlands
F.C. Felterman 22,669 * 22,669 - -
P.O. Box 189
Patterson, Louisiana 70392
Ernest Felterman 13,387 * 13,387 - -
P.O. Box 189
Patterson, Louisiana 70392
D. Lee Felterman 6,667 * 6,667 - -
P.O. Box 189
Patterson, Louisiana 70392
Daniel C. Felterman 6,450 * 6,450 - -
P.O. Box 189
Patterson, Louisiana 70392
Michael J. Felterman 827 * 827 - -
P.O. Box 189
Patterson, Louisiana 70392
Steven Stern 21,915 * 21,915 - -
c/o Braver Stern Securities
641 Lexington Avenue
24th Floor
New York, New York 10022
Worldwide Special Fund, N.V. 5,457 * 5,457 - -
c/o Smith Barney & Co.
388 Greenwich Street
25th Floor
New York, New York 10013
Claire Edersheim 1,364 * 1,364 - -
c/o Smith Barney & Co.
388 Greenwich Street
25th Floor
New York, New York 10013
<FN>
___________________________
* Less than 1.0%
(1) The information contained in this table reflects "beneficial"
ownership of the Common Stock within the meaning of Rule 13d-3 under
the Exchange Act. On January 16, 1997, the Company had 13,922,882
shares of Common Stock outstanding, not including 55,768 shares of
Common Stock held in the Company's treasury. Unless otherwise
indicated, all shares of Common Stock are held directly with sole
voting and dispositive power. Beneficial ownership information
reflected in the table above includes shares issuable upon the exercise
of outstanding stock options.
(2) The number of shares of Common Stock and percent of class beneficially
owned by Smit Overseas as reflected in this table include 231,061
shares of Common Stock issuable upon conversion of the Smit Notes.
</FN>
</TABLE>
17
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PLAN OF DISTRIBUTION
The Selling Stockholders have advised the Company that the Shares may be
sold from time to time by the Selling Stockholders, or their transferees, in
transactions effected on the NYSE (or through the facilities of any national
securities exchange or U.S. automated interdealer quotation system of a
registered national securities association, on which any of the Shares are then
listed, admitted to unlisted trading privileges or included for quotation), in
privately negotiated transactions or otherwise. The Shares will not be sold in
an underwritten public offering. The Shares will be sold at prices and on terms
then prevailing, at prices related to the then-current market price of the
Shares, or at negotiated prices. The Company has been advised that the Selling
Stockholders may effect sales of the Shares directly, or indirectly by or
through agents or broker-dealers and that the Shares may be sold by one or more
of the following methods: (a) ordinary brokerage transactions, (b) purchases by
a broker-dealer as principal and resale by such broker-dealer for its own
account, and (c) in "block" sale transactions. At the time a particular offer is
made, a Prospectus Supplement, if required, will be distributed that sets forth
the name or names of agents or broker-dealers, any commissions and other terms
constituting selling compensation and any other required information. Moreover,
in effecting sales, broker-dealers engaged by any Selling Stockholder and/or the
purchasers of the Shares may arrange for other broker-dealers to participate in
the sales process. Broker-dealers will receive discounts or commissions from the
Selling Stockholders and/or the purchasers of the Shares in amounts which will
be negotiated prior to the time of sale. Sales will be made only through
broker-dealers registered as such in a subject jurisdiction or in transactions
exempt from such registration. The Company has not been advised of any
definitive selling arrangement at the date of this Prospectus between any
Selling Stockholder and any broker-dealer or agent.
In connection with the distribution of the Shares, certain of the Selling
Stockholders may enter into hedging transactions with broker-dealers. In
connection with such transactions, broker-dealers may engage in short sales of
the Shares in the course of hedging the positions they assume with the Selling
Stockholders. The Selling Stockholders may also sell the Shares short and
redeliver the Shares to close out the short positions. The Selling Stockholders
may also enter into option or other transactions with broker-dealers which
require the delivery of the Shares to the broker-dealer. The Selling
Stockholders may also loan or pledge the Shares to a broker-dealer and the
broker-dealer may sell the Shares so loaned, or upon a default, the
broker-dealer may effect sales of the pledged shares.
Any broker-dealer participating in any distribution of Shares in
connection with the offering made hereby may be deemed to be an "underwriter"
within the meaning of the Securities Act and may be required to deliver a copy
of this Prospectus, including a Prospectus Supplement, to any person who
purchases any of the Securities from or through such broker-dealer.
Under the Registration Rights Agreements, SEACOR is required to comply
with the requirements of Rule 144(c) under the Securities Act, as such Rule may
be amended from time to time (or any similar rule or regulation hereafter
adopted by the Commission), regarding the availability of current public
information to the extent required to enable the Selling Stockholders to sell
Shares without registration under the Securities Act pursuant to Rule 144 (or
any similar rule or regulation).
Pursuant to the Registration Rights Agreements, SEACOR is required to pay
all expenses of registration of the Shares, including Commission filing fees,
and expenses of compliance with state securities or "blue sky" laws. The Selling
Stockholders will be indemnified by SEACOR against certain civil liabilities,
including certain liabilities arising under the Securities Act, or, to the
extent such indemnification is unavailable or otherwise limited, will be
entitled to contribution in connection therewith. The Company will not receive
any of the proceeds from the sale of the Shares by the Selling Stockholders.
18
<PAGE>
LEGAL MATTERS
The legality of the Common Stock offered hereby will be passed upon for
SEACOR by Weil, Gotshal & Manges LLP.
EXPERTS
The audited consolidated financial statements of the Company and the pro
forma financial information for the year ended December 31, 1995 included in and
incorporated by reference in this Prospectus from the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1995, the Company's Current
Report on Form 8-K dated May 31, 1996 and filed with the Commission on June 7,
1996 and the Company's Current Report on Form 8-K dated May 31, 1996 and filed
with the Commission on June 14, 1996 have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto and have been so incorporated in reliance upon the reports of such firm
given their authority as experts in accounting and auditing. In its report on
the Company for 1995, Arthur Andersen LLP states that with respect to a certain
subsidiary, its opinion is based on the report of other independent public
accountants, namely Coopers & Lybrand L.L.P. The report referred to above has
been incorporated by reference in this Prospectus upon the authority of that
firm as an expert in giving such report.
19
<PAGE>
INDEX TO FINANCIAL STATEMENTS
PAGE
Report of Independent Public Accountants............................. F-2
Consolidated Balance Sheets-December 31, 1995 and 1994............... F-3
Consolidated Statements of Income for each of the three years ended
December 31, 1995, 1994, and 1993.................................. F-4
Consolidated Statements of Changes in Equity for each of the three
years ended December 31, 1995, 1994, and 1993...................... F-5
Consolidated Statements of Cash Flows for each of the three years ended
December 31, 1995, 1994, and 1993.................................. F-6
Notes to Consolidated Financial Statements........................... F-7
Condensed Consolidated Balance Sheet-September 30, 1996.............. F-33
Condensed Consolidated Statements of Income for the three and nine
months ended September 30, 1996 and 1995........................... F-34
Condensed Consolidated Statements of Cash Flows for the six months ended
September 30, 1996 and 1995........................................ F-35
Notes to Condensed Consolidated Financial Statements................. F-36
F-1
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To SEACOR Holdings, Inc.:
We have audited the accompanying consolidated balance sheets of SEACOR
Holdings, Inc. (a Delaware corporation) and subsidiaries as of December 31, 1995
and 1994 and the related consolidated statements of income, changes in equity
and cash flows for each of the three years in the period ended December 31,
1995. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audits. We did not audit the financial statements of CRN
Holdings Inc. and subsidiaries, which statements reflect total assets and total
revenues of 9 percent and 17 percent, respectively, in 1995 of the consolidated
totals. Those statements were audited by other auditors whose report has been
furnished to us and our opinion, insofar as it relates to the amounts included
for those entities, is based solely on the report of the other auditors.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits and the report of other auditors provide a reasonable
basis for our opinion.
In our opinion, based on our audits and the report of other auditors, the
financial statements referred to above present fairly, in all material respects,
the financial position of SEACOR Holdings, Inc. and subsidiaries as of December
31, 1995 and 1994 and the results of their operations and their cash flows for
each of the three years in the period ended December 31, 1995, in conformity
with generally accepted accounting principles.
Arthur Andersen LLP
New Orleans, Louisiana
June 7, 1996
F-2
<PAGE>
<TABLE>
<CAPTION>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1995 AND 1994
(IN THOUSANDS, EXCEPT SHARE DATA)
ASSETS 1995 1994
---- ----
<S> <C> <C>
Current Assets:
Cash and temporary cash investments, including restricted
cash of $305 in 1994........................................................................ $ 28,786 $ 44,637
Investment Securities .......................................................................... 623 595
Trade and other receivables, net of allowance for doubtful
accounts of $380 and $108, respectively .................................................... 32,900 13,844
Affiliate receivables .......................................................................... 872 2,594
Inventories .................................................................................... 1,602 577
Prepaid expenses and other ..................................................................... 3,490 1,047
--------- ---------
Total current assets .................................................................... 68,273 63,294
--------- ---------
Investments in and Receivables from 50% or Less Owned
Companies, at Equity ........................................................................... 6,484 6,137
--------- ---------
Property and Equipment:
Vessels and equipment .......................................................................... 327,352 222,142
Other .......................................................................................... 10,594 3,611
--------- ---------
....................................................................................... 337,946 225,753
Less-accumulated depreciation .............................................................. 75,038 59,726
--------- ---------
....................................................................................... 262,908 166,027
--------- ---------
Other Assets ..................................................................................... 13,218 2,687
--------- ---------
$ 350,883 $ 238,145
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Current portion of long-term debt .............................................................. $ 2,489 $ 5,896
Loans from stockholders ........................................................................ 1,665 1,470
Accounts payable-trade ......................................................................... 7,742 3,245
Accounts payable-affiliates .................................................................... -- 396
Accrued insurance .............................................................................. 975 885
Accrued wages .................................................................................. 1,252 565
Accrued income taxes ........................................................................... 1,365 498
Other current liabilities ...................................................................... 4,262 2,982
--------- ---------
Total current liabilities .................................................................. 19,750 15,937
--------- ---------
Long-Term Debt ................................................................................... 108,066 73,621
Deferred Income Taxes ............................................................................ 36,182 34,093
Deferred Gain and Other Liabilities .............................................................. 2,484 1,733
Minority Interest in Subsidiary .................................................................. 937 1,279
Stockholders' Equity:
Common stock, $.01 par value, 20,000,000 shares authorized; 9,886,393 and
7,198,123 shares issued and 9,830,625 and 7,142,355 shares outstanding in 1995
and 1994,
respectively ................................................................................... 99 72
Additional paid-in capital ....................................................................... 127,317 66,319
Retained earnings ................................................................................ 57,852 46,528
Less 55,768 shares held in treasury, at cost ..................................................... (576) (576)
Unamortized restricted stock ..................................................................... (159) --
Currency translation adjustments ................................................................. (1,069) (861)
--------- ---------
Total stockholders' equity ................................................................. 183,464 111,482
--------- ---------
$ 350,883 $ 238,145
========= =========
</TABLE>
The accompanying notes are an integral part of these financial statements
and should be read in conjunction herewith.
F-3
<PAGE>
<TABLE>
<CAPTION>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
FOR THE YEARS ENDED DECEMBER 31, 1995, 1994, AND 1993
(IN THOUSANDS, EXCEPT SHARE DATA)
1995 1994 1993
---- ---- ----
<S> <C> <C> <C>
Operating Revenue:
Marine ................................................................ $ 104,894 $ 93,985 $ 92,168
Environmental-
Oil spill response .................................................. 8,927 -- --
Retainer and other services ......................................... 12,838 -- --
------------ ------------ ------------
126,659 93,985 92,168
------------ ------------ ------------
Costs and Expenses:
Cost of spill response ................................................ 7,643 -- --
Operating expenses-
Marine ............................................................ 66,205 55,860 53,958
Environmental ..................................................... 4,580 -- --
Administrative and general ............................................ 13,953 7,278 7,187
Depreciation and amortization ......................................... 18,842 14,108 12,107
------------ ------------ ------------
111,223 77,246 73,252
------------ ------------ ------------
Operating Income .......................................................... 15,436 16,739 18,916
Other Income (Expense):
Interest income ....................................................... 2,370 1,874 1,063
Other ................................................................. 667 (267) 122
Gain/(loss) from equipment sales or retirements ....................... 3,850 (388) (8)
Interest expense ...................................................... (6,681) (5,422) (4,782)
------------ ------------ ------------
206 (4,203) (3,605)
Income Before Income Taxes, Minority Interest,
Equity in Earnings of 50% or Less Owned
Companies, and Extraordinary Item ..................................... 15,642 12,536 15,311
Income Tax Expense (Benefit):
Current ............................................................... 5,175 4,516 3,998
Deferred .............................................................. 335 (148) 1,341
------------ ------------ ------------
5,510 4,368 5,339
------------ ------------ ------------
Income Before Minority Interest, Equity in Earnings of 50% or
Less Owned Companies, and Extraordinary Item ........................... 10,132 8,168 9,972
Minority Interest in (Income) Loss of Subsidiary .......................... 321 184 (51)
Equity in Net Earnings of 50% or Less Owned Companies ..................... 872 975 287
------------ ------------ ------------
Income Before Extraordinary Item .......................................... 11,325 9,327 10,208
Extraordinary Item-Loss on Extinguishment of Debt ......................... -- -- (1,093)
------------ ------------ ------------
Net Income ................................................................ $ 11,325 $ 9,327 $ 9,115
============ ============ ============
Earnings (Loss) Per Common Share-Assuming
No Dilution:
Income before extraordinary item ....................................... $ 1.50 $ 1.31 $ 1.43
Extraordinary item ..................................................... -- -- (0.15)
------------ ------------ ------------
Net income ............................................................. $ 1.50 $ 1.31 $ 1.28
============ ============ ============
Earnings (Loss) Per Common Share-Assuming
Full Dilution:
Income before extraordinary item ....................................... $ 1.36 $ 1.22 $ 1.36
Extraordinary item ..................................................... -- -- (0.14)
------------ ------------ ------------
Net income ............................................................. $ 1.36 $ 1.22 $ 1.22
============ ============ ============
Weighted Average Common Shares:
Assuming no dilution ................................................... 7,547,330 7,142,355 7,127,697
Assuming full dilution ................................................. 10,032,332 9,625,544 8,366,724
</TABLE>
The accompanying notes are an integral part of these financial statements
and should be read in conjunction herewith.
F-4
<PAGE>
<TABLE>
<CAPTION>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1995, 1994, AND 1993
(IN THOUSANDS)
Common Additional Retained Treasury Unamortized Currency
Stock Paid-in Earnings Stock Restricted Translation
Capital Stock Adjustments
<S> <C> <C> <C> <C> <C> <C>
1995
Balance, December 31, 1994............... $72 $66,319 $46,528 $(576) $ - $ (861)
Add -Issuance of common stock:
NRC Merger................... 3 5,704 - - - -
CNN Acquisition.............. 5 11,295 - - - -
Public Offering.............. 16 36,926 - - - -
Coastal/Phibro Transaction... 3 7,497 - - -
Other........................ - 4 - - - -
- Issuance of restricted stock. - 216 - - (216) -
- Amortization of restricted stock - - - - 57 -
- Net income for the year ended
December 31, 1995............ - - 11,325 - - -
- Net currency translation
adjustments.................. - - - - - (208)
Deduct - Public offering costs........ - (644) - - - -
- Dividends paid............... - - (1) - - -
-------- -------- ---------- ------- ------ --------
Balance, December 31, 1995............... $99 $127,317 $57,852 $(576) $(159) $ (1,069)
======== ======== ========== ======= ====== ========
1994
Balance, December 31, 1993............... $72 $66,319 $37,202 $(576) - $ (2,484)
Add -Net income for the year
ended December 31, 1994...... - - 9,327 - - -
-Net currency translation
adjustments.................. - - - - - 1,623
Deduct -Dividends paid................ - - (1) - - -
--------- --------- ---------- ------- ------ --------
Balance, December 31, 1994............... $72 $66,319 $46,528 $(576) $ - $ (861)
========= ========= ========== ======= ====== ========
1993
Balance, December 31, 1992............... $71 $64,445 $28,094 $(576) $ - $ (2,388)
Add -Issue of common stock to
acquire vessels.............. 1 1,874 - - - -
-Net income for the year ended
December 31, 1993............ - - 9,115 - - -
Deduct -Net currency translation
adjustments.................. - - - - - (96)
-Dividends paid................ - - (7) - - -
--------- --------- ---------- ------- ------ --------
Balance, December 31, 1993............... $72 $66,319 $37,202 $(576) $ - $ (2,484)
========= ========= ========== ======= ====== ========
</TABLE>
The accompanying notes are an integral part of these financial statements
and should be read in conjunction herewith.
F-5
<PAGE>
<TABLE>
<CAPTION>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1995, 1994 AND 1993
(IN THOUSANDS)
1995 1994 1993
-------- -------- --------
<S> <C> <C> <C>
Cash Flows from Operating Activities:
Net income .................................................................. $ 11,325 $ 9,327 $ 9,115
Depreciation and amortization ............................................... 18,842 14,108 12,107
Mobilization amortization ................................................... 44 415 953
Restricted stock amortization ............................................... 57 -- --
Bad debt expense ............................................................ 100 98 20
Debt discount amortization .................................................. 277 309 97
Deferred income taxes ....................................................... 335 (148) 1,341
Equity in net earnings of 50% or less owned companies ....................... (872) (975) (287)
Extraordinary loss, extinguishment of debt .................................. -- -- 1,093
Gain on purchase of 6% Convertible Subordinated Notes ....................... (199) -- --
(Gain)/loss from equipment sales or retirement .............................. (3,850) 388 8
Minority interest in income (loss) of subsidiary ............................ (321) (184) 51
Other ....................................................................... 31 176 19
Changes in operating assets and liabilities:
Decrease in restricted cash ............................................. 308 87 293
(Increase) decrease in receivables ...................................... (14,807) (261) (4,040)
(Increase) in inventories ............................................... (79) (255) (132)
(Increase) in prepaid expenses and other assets ......................... (1,620) (236) (529)
Increase (decrease) in payables and accrued and other liabilities ....... 368 (1,699) 3,307
-------- -------- --------
Net cash provided by operations ................................... 9,939 21,150 23,416
-------- -------- --------
Cash Flows from Investing Activities:
Purchases of property and equipment ......................................... (14,534) (3,371) (24,194)
Proceeds from the sale of marine vessels and equipment ...................... 7,522 450 32
Investment in and advances to 50% or less owned companies ................... (916) (1,342) (89)
Principal payments on notes due from 50% or less owned companies ............ 431 -- --
Principal payments received under a sale-type lease ......................... 117 -- --
Cash acquired in NRC Merger ................................................. 2,176 -- --
Acquisition of John E. Graham & Sons ........................................ (73,463) -- --
Purchase of investment securities ........................................... (28) (592) --
-------- -------- --------
Net cash (used in) investing activities ................................. (78,695) (4,855) (24,251)
-------- -------- --------
Cash Flows from Financing Activities:
Payments of long-term debt and loans from stockholders ...................... (66,609) (10,888) (36,986)
Proceeds from issuance of long-term debt and loans from stockholders ........ 87,283 3,175 --
Net proceeds from sale of common stock ...................................... 36,302 -- --
Payment of initial public offering costs .................................... -- -- (155)
Purchase of 6% Convertible Subordinated Notes ............................... (1,980) -- --
Debt issue loans costs, Den norske Bank A/S, revolving credit facility ...... (667) -- --
Payment of debt extinguishment costs ........................................ -- -- (519)
Payments on capital lease obligation ........................................ (1,037) -- --
Net proceeds from sale of 6% Convertible Subordinated Notes ................. -- -- 55,324
Payment of Dividends ........................................................ (1) (1) (7)
-------- -------- --------
Net cash provided by (used in) financing activities ................... 53,291 (7,714) 17,657
-------- -------- --------
Effects of Exchange Rate Changes on Cash and Cash Equivalents ................... (81) 130 (80)
-------- -------- --------
Net Increase (Decrease) in Cash and Cash Equivalents ............................ (15,546) 8,711 16,742
Cash and Cash Equivalents, beginning of period .................................. 44,332 35,621 18,879
-------- -------- --------
Cash and Cash Equivalents, end of period ........................................ $ 28,786 $ 44,332 $ 35,621
======== ======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements
and should be read in conjunction herewith.
F-6
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. NATURE OF OPERATIONS AND ACCOUNTING POLICIES:
SEACOR Holdings, Inc. ("SEACOR") and its subsidiaries (the "Company")
furnish vessel support in the offshore oil and gas exploration and production
industry and provide contractual oil spill response and related services to
companies who store, transport, produce, or handle petroleum and certain
non-petroleum oils as required by the Oil Pollution Act of 1990 ("OPA 90"). The
Company operates principally in the United States, offshore West Africa, the
North Sea and Mexico.
BASIS OF CONSOLIDATION
The consolidated financial statements include the accounts of SEACOR and
its subsidiaries including the McCall Affiliated Companies, see Note 19, all of
which are wholly owned by SEACOR, except for a 9% minority interest in a
subsidiary that owns 11 vessels and bareboat charters in one vessel which
operate in the North Sea and U.S. Gulf of Mexico. The equity method of
accounting is used by the Company when it has a 20% to 50% ownership interest in
the voting stock of other companies and the ability to exercise significant
influence over their operating and financial policies. The investments in 50% or
less owned companies are carried at cost, adjusted for the Company's equity in
their undistributed earnings. All significant intercompany accounts and
transactions between the Company and its majority and wholly owned subsidiaries
have been eliminated in consolidation.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
CASH AND TEMPORARY CASH INVESTMENTS-
For purposes of the Consolidated Statements of Cash Flows, cash
equivalents refer to securities with original maturities of three months or
less.
INVESTMENT SECURITIES-
The Company holds investments in U.S. Government debt securities. These
securities are accounted for as held-to-maturity securities; and, accordingly
are reflected at amortized cost, which approximates fair value at December 31,
1995 and 1994.
ACCOUNTS RECEIVABLE-
Customers of vessel support services are primarily major and large
independent oil and gas exploration and production companies; whereas, customers
of oil spill response services include tank vessel owner/operators, refiners,
terminals, exploration and production facilities and pipeline operators. The
Company's customers are granted credit on a short-term basis and related credit
risks are considered minimal.
INVENTORIES-
Inventories consist of vessel spare parts, fuel, and supplies that are
recorded at cost and charged to vessel expenses as consumed.
F-7
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
1. NATURE OF OPERATIONS AND ACCOUNTING POLICIES:
PROPERTY AND EQUIPMENT-
Property and equipment are recorded at historical cost and depreciated
over the estimated useful lives of the related assets. Depreciation is computed
on the straight line method for financial reporting purposes. Maintenance and
repair costs, including routine dry dock inspections on vessels in accordance
with maritime regulations, are charged to operating expense as incurred.
Expenditures that extend the useful life or improve the marketing and commercial
characteristics of vessels and major renewals or improvements to other
properties are capitalized.
Vessels and related equipment are depreciated over 20-25 years; all other
property and equipment are depreciated and amortized over two to ten years.
OTHER ASSETS-
Other assets include the following for the years ended December 31, 1995
and 1994, in thousands of dollars:
1995 1994
---- ----
Goodwill, net of accumulated amortization of $167 in
1995 (see Note 4 and 7)............................ $ 7,837 $ -
Sale-type lease (see Note 12)........................ 2,543 -
Debt issue costs, net of accumulated amortization of
$558 in 1995 and $643 in 1994...................... 2,214 1,994
Other................................................ 624 693
------- ------
$13,218 $2,687
======= ======
Goodwill reflects the excess of cost over the estimated fair value of the
net assets acquired upon the merger of NRC Holdings, Inc. ("NRC Holdings") with
and into a subsidiary of SEACOR (see Note 4) and the excess of the value of
SEACOR's common stock issued in connection with the cancellation of two
customers' options to acquire up to 40% of a subsidiaries' common stock over the
previously recorded carrying value of those options (see Note 7). Goodwill is
being amortized on a straight line basis over its estimated useful life of 20
years.
Deferred debt issue costs relate primarily to the Company's sale of 6%
Convertible Subordinated Notes ("6% Notes") in July 1993 and the establishment
of an $85,000,000 revolving credit loan facility (the "DnB Facility") with Den
norske Bank A/S ("DnB") in September 1995 at a cost of $667,000. Debt issue
costs are being amortized on a straight line basis over the life of the related
debt, ranging from five to ten years.
Combined deferred charge amortization expense was $729,000, $769,000 and
$1,430,000 for the years ended December 31, 1995, 1994, and 1993. A significant
amount of previously deferred mobilization costs was amortized to expense in
1993 but declined in 1994 and 1995. The Company's policy has been to defer any
significant costs to relocate vessels in association with long-term charters
(i.e., charters having a term of one year or more at inception) in which the
term charter rates are adequate to recover the mobilization expenses. These
deferred mobilization costs are typically amortized to expense over the primary
term of the related charter contracts.
F-8
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
1. NATURE OF OPERATIONS AND ACCOUNTING POLICIES:
INCOME TAXES-
Effective January 1, 1993, the Company adopted Statement of Financial
Accounting Standards ("SFAS") No. 109, the financial accounting and reporting
standard for income taxes. This standard superseded SFAS No. 96 which had been
previously adopted by the Company. There was no significant effect on the
Company's financial condition or results of operations caused by the adoption of
the new standard.
Deferred income tax assets and liabilities have been provided in
recognition of the income tax effect attributable to the difference between
assets and liabilities reported in the tax return and financial statements.
Deferred tax assets or liabilities are provided using the enacted tax rates
expected to apply to taxable income in the periods in which the deferred tax
assets and liabilities are expected to be settled or realized.
FOREIGN CURRENCY TRANSLATION-
The assets, liabilities and results of operations of certain SEACOR
subsidiaries are measured using the currency of the primary foreign economic
environment within which they operate, their functional currency. For purpose of
consolidating these subsidiaries with SEACOR, the assets and liabilities of
these foreign operations are translated to U.S. dollars at currency exchange
rates as of the balance sheet date and for revenue and expenses at the weighted
average currency exchange rates during the applicable reporting periods.
Translation adjustments resulting from the process of translating these
subsidiaries; financial statements are included in stockholders equity.
Certain SEACOR subsidiaries also enter into transactions denominated in
currencies other than their functional currency. Changes in currency exchange
rates between the functional currency and the currency in which a transaction is
denominated is included in the determination of net income in the period in
which the currency exchange rates change. Foreign currency exchange gains or
losses included in determining net income have not been material.
REVENUE RECOGNITION-
The Company's marine transportation business earns revenue primarily from
time or bareboat charter of vessels to customers based upon daily rates of hire.
Rates of hire earned under time and bareboat charters vary substantially in
direct proportion to the operating expenses incurred in conjunction with each
type of charter. Typically, under time charter arrangements, the vessels'
operating expenses are the responsibility of the Company; whereas, under
bareboat charters, the vessels' operating expenses are paid by the charterer.
Vessel charters may range from several days to several years.
Environmental customers are charged retainer fees for ensuring by contract
the availability at predetermined rates of the Company's response services and
equipment. Retainer services include employing a staff to supervise response to
an oil spill emergency and maintaining specialized equipment, including marine
equipment, in a ready state for spill response as contemplated by response plans
filed by the Company's customers. Certain vessel owners pay in advance a minimum
annual retainer fee based upon the number and size of vessels in each such
owner's fleet and in some circumstances pay the Company additional fees based
upon the level of each vessel owner's voyage activity in the U.S. The Company
recognizes the greater of revenue earned by voyage activity or the portion of
the retainer earned in each accounting period. Certain other vessel owners pay a
fixed fee for the Company's retainer service and such fee is recognized ratably
throughout the year. Facility owners generally pay a quarterly fee based on a
formula that defines and measures petroleum products transported to or processed
at the facility. Some facility owners pay an annual fixed fee and such fee is
recognized ratably
F-9
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
1. NATURE OF OPERATIONS AND ACCOUNTING POLICIES:
throughout the year. Retainer agreements with vessel owners generally range from
one to three years while retainer arrangements with facility owners are as long
as seven years.
Spill response revenue is dependent on the magnitude of any one spill
response and the number of spill responses within a given fiscal year.
Consequently, spill response revenue can vary greatly between comparable
periods.
RELIANCE ON FOREIGN OPERATIONS-
For the years ended December 31, 1995, 1994, and 1993, approximately 31%,
33%, and 40%, respectively, of the Company's offshore marine revenues were
derived from foreign operations. The Company's foreign operations are subject to
various risks inherent in conducting business in foreign nations. These risks
include, among others, political instability, potential vessel seizure,
nationalization of assets, currency restrictions and exchange rate fluctuations,
import-export quotas and other forms of public and governmental regulations, all
of which are beyond the control of the Company. Although, historically, the
Company's operations have not been affected materially by such conditions or
events, if is not possible to predict whether any such conditions or events
might develop in the future. The occurrence of any one or more of such
conditions or events could have a material adverse effect on the Company's
financial condition and results of operations.
EARNINGS PER SHARE -
Earnings per common share assuming no dilution was computed based on the
weighted average number of common shares issued and outstanding during the
relevant periods. Shares issuable upon the exercise of stock options were
excluded from the computation since the effect of the assumed exercise thereof
was not material.
On July 1, 1993, the Company sold $57,500,000 principal amount 6% Notes,
and on December 17, 1993, the Company issued $4,750,000 principal amount 2.5%
Convertible Subordinated Notes ("2.5% Notes"). Both note issues are convertible
into shares of the Company's common stock at any time prior to maturity. The
conversion rates for the 6% Notes and the 2.5% notes are 39.024 and 32.979
shares, respectively, per $1,000 principal amount of notes. In February 1995,
the company purchased $2,250,000 of the then outstanding $57,500,000 principal
amount of its 6% Notes in the open market.
Earnings per common share assuming full dilution was computed based on the
weighted average number of shares issued and outstanding plus the shares that
would be outstanding assuming the exercise of all stock options using the
treasury stock method and assuming all outstanding convertible subordinated
notes were converted to common stock. For computation purposes, income before
extraordinary item and net income were adjusted for the interest expense (net of
income tax) applicable to the convertible subordinated notes.
RECLASSIFICATIONS -
Certain reclassifications of prior year information have been made to
conform with the current year presentation.
NEW ACCOUNTING STANDARDS -
In 1995, Statement of Financial Accounting Standards No. 121-"Accounting
for Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed of"
was issued and require adoption by the Company in fiscal 1996. Management
believes that such adoption will not have a material effect on the Company's
financial statements taken as a whole.
F-10
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
Also in 1995, Statement of Financial Accounting Standards No.
123-"Accounting for Stock-Based Compensation" (the "Statement") was issued which
establishes, among other things, financial accounting and reporting standards
for stock-based employee compensation plans. Entities may either adopt a "fair
value based method" of accounting for an employee stock option as defined by the
Statement or may continue to use accounting methods as defined by the Statement
or may continue to use accounting methods as prescribed by APB opinion No.
25-"Accounting for Stock Issued to Employees." Entities electing to remain with
the accounting in APB Opinion No. 25 are required to make pro forma disclosures
of net income and earnings per share as if the fair value based method of
accounting defined in the Statement had been applied. The accounting
requirements of the Statement are effective for transactions entered into in
fiscal years that begin after December 15, 1995. The Company expects to continue
following APB Opinion No. 25 and make appropriate disclosures in the future in
accordance with the Statement.
2. FAIR VALUE OF FINANCIAL INSTRUMENTS:
The estimated fair value amounts of the Company's financial instruments
have been determined using available market information and appropriate
valuation methodologies. Considerable judgment was required in developing the
estimates of fair value, and accordingly, the estimates presented herein, in
thousands of dollars, are not necessarily indicative of the amounts realizable
in current market exchange.
CARRYING FAIR
DECEMBER 31, 1995 AMOUNT VALUE
----------------- ------ -----
Assets:
Cash, temporary cash investments
and investment securities................. $29,407 $29,409
Notes receivable from 50% or less
owned companies............................ 2,902 2,902
Liabilities:
Long-term debt............................ 110,555 112,493
Indebtedness to shareholders and a minority
shareholder of a subsidiary............. 2,675 2,565
The carrying values of cash and temporary cash investments and notes
receivable due from 50% or less owned companies are a reasonable estimate of
their fair value. The estimated value of the Company's long-term debt and
indebtedness to a minority shareholder of a subsidiary of the Company was
determined by discounting the future cash flows using market information as to
borrowing rates for debt of similar terms and maturity. Loans from shareholders
are generally advances made from shareholders. The Company believes it is not
practicable to estimate the fair market value of the loans.
3. POOLING ARRANGEMENTS:
On December 17, 1993, the Company entered into a pooling arrangement (the
"SEAFISH Pool"), effective January 1, 1994, with Champagne Nationale de
Navigation ("CNN"), a French corporation engaged in various sectors of the
marine shipping industry, which sold and leased back (bareboat chartered) from
the Company ten offshore towing supply vessels. Under the terms of the
arrangement, revenue and expenses of certain vessels owned and operated by the
Company and certain vessels owned or bareboat chartered and operated by CNN were
pooled and the net pool results were shared by both parties equally after giving
effect to certain
F-11
NYFS11...:\93\73293\0004\1711\FRM1297U.090
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
preference payments. Pursuant to an agreement under which the Company acquired
additional vessels from CNN, the pooling arrangement and lease back of ten
vessels were terminated effective October 1, 1995, (see Note 5).
SEAFISH Ltd., a Bahamian corporation owned jointly by SEACOR and CNN, was
assigned the responsibility to coordinate the activities of all vessels in the
SEAFISH Pool. Immediately prior to terminating the SEAFISH Pool, the company and
CNN had 12 and 21 participating vessels, respectively, and at December 31, 1994,
the respective count of participating vessels was 11 and 15. For a fee, the
Company provided management and accounting services to SEAFISH Ltd. For the
years ended December 31, 1995 and 1994, the effect on the Company's revenue from
its participation in the SEAFISH Pool was a reduction in revenue of $972,000 and
an increase in revenue of $337,000, respectively.
On January 1, 1995, the SEAVEC Pool commenced operations. The SEAVEC Pool
was formed to coordinate the marketing in the North Sea standby market of eleven
vessels owned by the Company and five vessels from Toisa Ltd., an unrelated
offshore marine transportation and services company. Under the pooling
arrangement, operating revenue is pooled and distributed to each company
pursuant to a formula derived from the class of vessels each company contributes
to the pool. For the year ended December 31, 1995, the effect on the Company's
revenue from its participation in the SEAVEC Pool was a reduction in revenue of
$313,000. Ten vessels owned by the Company were participating in the Pool at
December 31, 1995.
4. NRC MERGER:
On March 14, 1995, SEACOR acquired the remaining 57.1% of the outstanding
common stock of NRC Holdings that it did not already own through a merger (the
"NRC Merger") of NRC Holdings with and into CRN Holdings Inc. ("CRN"), a wholly
owned subsidiary of SEACOR. Following the NRC Merger, the financial condition,
results of operations, and cash flows of the newly acquired environmental
subsidiaries, primarily operating through the National Response Corporation
("NRC"), were reflected in the Company's consolidated financial statements.
Prior to March 14, 1995, the Company reported its equity interest in NRC
Holdings as an investment in 50% or less owned company that was accounted for by
the equity method.
CRN, the surviving corporation of the NRC Merger, primarily through its
wholly owned subsidiary, NRC, is engaged in the business of responding to marine
oil spills and planning for environmental emergencies. SEACOR issued 292,965
shares of its common stock pursuant to the transaction that were valued at
$5,707,000. The Company already owned 42.9% of NRC Holdings which was carried on
the Company's books at a value net of deferred taxes of $995,000. The purchase
method was used to account for this business combination. The excess of cost
over estimated fair value of the net assets acquired, including $138,000 in
direct costs incurred in conjunction with the transaction, of which $3,447,000
will be amortized over 20 years using the straight line method. The estimated
fair values of assets and liabilities of NRC Holdings at the date of the NRC
Merger are as follows, in thousands of dollars:
CAPTION AMOUNT
------- ------
Current Assets....................... $6,008
Property and Equipment............... 21,219
Capitalized Lease.................... 1,807
Other Assets......................... 100
Goodwill............................. 3,447
Deferred Income Taxes................ 404
Current Liabilities.................. (5,741)
Capital Lease Obligations............ (1,577)
Bank Loan Payable.................... (12,500)
Deferred Revenue..................... (6,327)
---------
$6,840
---------
F-12
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
The following unaudited pro forma information has been prepared as if the
merger had occurred at the beginning of each of the periods presented, in
thousands of dollars, except per share data. This pro forma information has been
prepared for comparative purposes only and is not necessarily indicative of what
would have occurred had the merger taken place on the dates indicated, nor does
it purport to be indicative of the future operating results of the Company. The
results of NRC Holdings for the year ended December 31, 1994, were impacted
favorably by its involvement in a major oil spill response in San Juan, Puerto
Rico. As spill response revenue is dependent on the magnitude of any one spill
response and the number of spill responses in a given year, operating results
can vary greatly between periods. The favorable effect of the major spill
response and its effect on operating results in 1994 is not indicative of a
trend or of anticipated results in future periods.
CAPTION 1995 1994
Revenues.......................................... $130,735 $134,056
Net Income........................................ $11,477 $10,073
Earnings Per Share-Assuming No Dilution........... $1.52 $1.36
5. VESSEL ACQUISITIONS AND DISPOSITIONS:
GRAHAM ACQUISITION-
On September 15, 1995, the Company acquired substantially all the assets
of John E. Graham & Sons and certain of its affiliated companies (collectively,
"Graham") for $72,854,000 in cash (the "Graham Acquisition"). The purchased
assets included 127 marine vessels used to support the offshore oil and gas
exploration and production industry in the U.S. Gulf of Mexico, real estate,
capital equipment and inventory associated with the operation of these vessels.
The acquisition was financed with $74,000,000 of borrowings under a revolving
credit facility entered into with DnB. The difference between the amount
borrowed and paid to Graham to acquire the assets was used to defray debt issue
and acquisition costs, totaling $1,208,000. Acquisition costs, totaling
$609,000, have been allocated to the vessels acquired, and debt issue costs,
totaling $599,000, are included in Other Assets.
CNN ACQUISITION-
On November 14, 1995, the Company acquired three towing supply vessels
from CNN and entered into an agreement to acquire two anchor handling towing
supply vessels and certain other vessel related assets for aggregate
consideration of $21,550,000. Of such consideration, $11,300,000 was paid for by
issuing 459,948 shares of SEACOR's common stock to CNN and $10,250,000 was paid
for in cash on December 14, 1995 when the two anchor handling towing supply
vessels were delivered to the Company (the "CNN Acquisition"). The Company
borrowed $11,000,000 from the DnB Facility to finance the cash portion of the
consideration and pay acquisition costs. Pursuant to the CNN Acquisition, the
Company and CNN agreed to (i) terminate CNN's bareboat charters covering ten
vessels owned by the Company, effective October 1, 1995, (ii) terminate the
SEAFISH Pooling arrangement, effective October 1, 1995, (iii) the Company's
bareboat charter, effective October 1, 1995, of one vessel owned by CNN with an
option to purchase, (iv) provide the Company a right of first refusal until
December 31, 1999, under which terms CNN shall not sell or transfer all or part
of its interest in any of three additional vessels owned by CNN, (v) SEACOR's
acquisition of 50% of the outstanding shares of FISH for a cost of $60,000,
effective January 1, 1996, (vi) CNN's sale to SEACOR of all CNN's right, title,
and
F-13
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
interest in and to all of the shares owned by CNN in SEAFISH Ltd. for a purchase
price of $5,000, effective January 1, 1996, (vii) reimburse CNN for certain
costs associated with CNN's early termination of employment contracts for
officers and crews that worked aboard seven of the Company's vessels which were
previously bareboat chartered to CNN; at December 31, 1995, the Company recorded
a liability of $700,000 regarding these contract termination costs and has
included such cost in the purchase price of the five vessels acquired, and
(viii) permit Feronia International Shipping S.A. ("FISH"), a French corporation
in which the Company and CNN own a 50% interest, to manage, for a fee, the
Company's vessels operating offshore West Africa and in the Arabian Gulf and
certain other additional vessels owned by CNN.
VESSEL DISPOSITIONS-
During 1995, the Company sold four supply and six utility vessels that
resulted in the recognition of a pre-tax gain, totaling $4,124,000. The gain was
offset by a pre-tax loss of $359,000 from the retirement of certain previously
capitalized costs relating to a vessel which was withdrawn from standby safety
service in the North Sea and relocated to the U.S. Gulf of Mexico for well
stimulation service. A pre-tax loss of $316,000 was recorded in 1994 from the
retirement of certain previously capitalized costs that also related to a vessel
which was withdrawn from standby safety service in the North Sea and relocated
to the U.S. Gulf of Mexico for well stimulation service.
6. INVESTMENTS IN AND RECEIVABLES FROM 50% OR LESS OWNED COMPANIES:
Investments, carried at equity, consist of the following at December 31,
1995 and 1994:
PERCENT
OWNED
COMPANY 1995 1994
------- ---- ----
SEAFISH Ltd............................ 50.0% 50.0%
NRC Holdings, Inc...................... - 42.9%
Maritima Mexicana, S.A................. 40.0% 40.0%
SEAMEX International, Ltd.............. 40.0% 40.0%
West Africa Offshore, Ltd.............. 40.0% 40.0%
Until October 1, 1995, SEAFISH Ltd. coordinated the activities of certain
vessels owned and operated by the Company and certain vessels owned or bareboat
chartered and operated by CNN that participated in a pooling arrangement (see
Note 3). For purposes of the pooling arrangement, SEAFISH Ltd. acted as a
custodian of cash balances relating to the Company's and CNN's pool activities
and recorded no revenues or expenses from the pooling arrangement. Therefore,
the net pool results were not included in equity in net earnings of 50 or less
owned companies. Pursuant to the CNN Acquisition (see Note 5), SEACOR and CNN
have agreed to terminate the SEAFISH Pool and SEACOR has agreed to acquire all
of CNN's rights, title and interest in and to all of the shares owned by CNN in
SEAFISH Ltd. for a purchase price of $5,000, effective January 1, 1996.
On March 14, 1995, SEACOR acquired the remaining 57.1% of the outstanding
common stock of NRC Holdings that it did not already own through a merger of NRC
Holdings with and into CRN. Following the NRC Merger, the financial condition,
results of operations, and cash flows of the newly acquired environmental
subsidiaries, primarily operating through NRC, were reflected in the Company's
consolidated financial statements.
(see Note 4).
F-14
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
Until the NRC Merger on March 14, 1995, and during 1994 and 1993, the
Company earned operating revenue of $68,000, $347,000 and $174,000,
respectively, from NRC. The fees related primarily to capital improvements made
by the Company to an owned and operated vessel and certain other expenses
incurred in support of NRC's oil spill response activities. In 1994 and until
the NRC Merger in 1995, the Company also provided management services to NRC for
a fee. The amount previously recorded by the Company as its equity in the
earnings of NRC Holdings differed from its 42.9% pro rata share of the company's
book value primarily because of the effect of the warrants held by two principal
customers to purchase 40% of the common stock of NRC (see Note 7). Equity in
earnings of NRC Holdings, Inc. and its subsidiaries, net of applicable income
taxes, was $607,000, and $287,000 for the years ended December 31, 1994 and
1993, respectively.
During 1994, the Company and Transportation Maritima Mexicana S.A. de C.V.
("TMM") completed their structuring of a joint venture to serve the Mexican
offshore market that began in December 1993 (the "TMM Joint Venture"). As part
of organizing the TMM Joint Venture, the Company: (i) invested $1,630,000
representing its share of the costs to acquire and improve three vessels, (ii)
invested $800,000 cash, and (iii) contributed one vessel from its fleet with an
agreed value of $1,350,000. A portion of the Company's initial investment in the
TMM Joint Venture was represented by unsecured notes receivable, totaling
$2,350,000. The Company recorded a deferred gain of $718,000 upon contributing
the vessel to the venture from its fleet which is being amortized to income over
the vessel's depreciable life. The TMM Joint Venture is comprised of two
corporations, Maritima Mexicana, S.A. and SEAMEX International, Ltd.
In March 1995, the Company sold an additional supply vessel to the TMM
Joint Venture for $1,700,000 in cash which resulted in the recognition of an
immediate gain of $473,000 and the deferral of a $315,000 gain. The deferred
gain is being amortized to income over the depreciable life of the vessel, and
the amount amortized to other income from this transaction and from the
contribution of a vessel upon establishment of the venture totaled $53,000 and
$10,000 for the years ended December 31, 1995 and 1994, respectively.
In 1995, the Company entered into a sale-type lease for one of its vessels
with the TMM Joint Venture. The lease expires in seven years and contains
options which permit the TMM Joint Venture to purchase the vessel at various
dates during the term of the lease. Unearned income and deferred gain amortized
to other income in connection with this lease for the year ended December 31,
1995, totaled $387,000. Additionally in 1995, the Company advanced the TMM Joint
Venture $680,000 to acquire equipment in exchange for a note receivable.
Principal and interest payments on the TMM Joint Venture notes are due in
quarterly installments which extend through 2000. The notes bear interest at
prime plus two percent, and earned interest income was $302,000 and $147,000 for
the years ended December 31, 1995 and 1994, respectively.
During 1995 and 1994, the TMM Joint Venture chartered vessels and utilized
other services of the Company. Charter and other revenue earned by the Company
from this operation for the years ended December 31, 1995 and 1994 was $369,000
and $624,000, respectively. The Company's equity in earnings of the TMM Joint
Venture, net of applicable income taxes, was $873,000 and $368,000 for the years
ended December 31, 1995 and 1994, respectively.
West Africa Offshore, Ltd. has been the Company's principal agent for
vessels operating offshore West Africa and is reimbursed for its operating
expenses. Pursuant to FISH expanding its vessel management responsibilities in
behalf of the Company, see discussion below, agency support of West Africa
Offshore, Ltd.
will be limited primarily to the Company's operations in Nigeria.
Pursuant to the CNN Acquisition (see Note 5), SEACOR acquired 50% of the
outstanding shares of FISH, a French corporation, for a cost of $60,000,
effective January 1, 1996. FISH has agreed to manage the Company's vessels
operating offshore West Africa and in the Arabian Gulf and certain other
additional vessels
F-15
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
owned by CNN. The FISH management fee charged to general and administrative
expense for the year ended December 31, 1995 totaled $226,000.
The summarized financial information below represents an aggregation of
the Company's principal equity investees for the years ended December 31, in
thousands of dollars.
CONDENSED INFORMATION 1995 1994
- --------------------- ---- ----
Current Assets............................... $ 6,282 $10,040
Noncurrent Assets............................ 10,351 32,359
------- -------
Total Assets............................. $16,633 $42,399
======= =======
Current Liabilities.......................... 3,460 24,653
Noncurrent Liabilities....................... 4,941 7,244
------- -------
Total Liabilities........................ $ 8,401 $31,897
======= =======
Revenues..................................... $ 8,840 $50,217
======= =======
Gross Profit................................. $ 4,990 $24,648
======= =======
Net Income................................... $ 3,304 $ 4,397
======= =======
The amount of consolidated retained earnings that represents undistributed
earnings of 50% or less owned companies accounted for by the equity method was
$1,241,000 at December 31, 1995.
7. COASTAL AND PHIBRO AGREEMENT-
On October 27, 1995, SEACOR and its primary environmental subsidiary, NRC,
amended certain existing agreements with two of its customers, Coastal Refining
and Marketing, Inc. ("Coastal") and Phibro Energy USA, Inc. ("Phibro"). Those
agreements provided, among other things, for a reduction in, and subsequent
elimination of, Coastal and Phibro's participating interest in certain operating
results, a reduction in their retainer fees, and an elimination of certain
options held by each of those customers to purchase up to 20% of the fully
diluted common stock of NRC. NRC will continue to provide one customer through
December 31, 2001 and the other customer through December 31, 1998 various oil
spill response services mandated by the OPA 90. In addition, Coastal's
agreements, among other things, called for SEACOR to issue them 311,357 shares
of its common stock (having a value at time of issuance of $7,500,000) in
exchange for the cancellation of their stock options in NRC. Phibro also agreed
to cancel a similar option in return for amendments to its agreement which
related primarily to the reduction of its retainer payments for OPA 90 services.
SEACOR has accounted for its share issuance as a repurchase of a minority
interest. The difference between the value of the common stock issued and the
previously recorded carrying value of certain deferred revenue, net of income
tax effect, which approximated 40% of NRC's net book value, totaled $4,558,000
and was recorded as goodwill (see Note 1).
8. INCOME TAXES:
Income (loss) before income taxes, minority interest, equity in net
earnings of 50% or less owned companies, and extraordinary item derived from the
United States and foreign operations for the years ended December 31, are as
follows, in thousands of dollars:
F-16
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
1995 1994 1993
---- ---- ----
United States.................. $18,318 $13,494 $14,534
Foreign........................ (2,676) (958) 777
------- ------- -------
$15,642 $12,536 $15,311
======= ======= =======
The Company files a consolidated U.S. Federal tax return. Income tax
expense (benefit) consisted of the following components for the years ended
December 31, 1995, 1994 and 1993, in thousands of dollars:
1995 1994 1993
---- ---- ----
Current:
State............................ $ 111 $ 123 $ 115
Federal.......................... 4,622 4,193 3,207
Foreign.......................... 442 200 676
Deferred:
Federal.......................... 859 (148) 1,359
Foreign.......................... (524) - (18)
------ ------ ------
$5,510 $4,368 $5,339
====== ====== ======
The following table reconciles the difference between the statutory
federal income tax rate for the Company to the effective income tax rate:
1995 1994 1993
---- ---- ----
Statutory Rate................... 34.0% 34.0% 34.0%
Foreign and state taxes.......... 1.2 0.8 0.9
---- ---- ----
35.2% 34.8% 34.9%
The components of the net deferred income tax liability were as follows,
for the years ended December 31, in thousands of dollars:
1995 1994
---- ----
Deferred tax assets:
Foreign Tax Credit..................... $ 522 $ 337
Alternative Minimum Tax Credit......... 568 -
Subpart F Loss......................... 1,727 747
Nondeductible Accruals................. 494 -
Other.................................. 367 340
Total deferred tax assets............ 3,678 1,424
Deferred tax liabilities:
Property and equipment................. 39,102 34,717
Investment in Subsidiaries............. 603 660
Other.................................. 655 919
------ ------
Total deferred tax liabilities....... 40,360 36,296
------ ------
Net deferred tax liabilities....... $36,682 $34,872
====== ======
As of December 31, 1995, the Company has carryforwards for income tax
purposes of foreign tax credits approximating $522,000 that expire from 1997
through 2000. As of December 31, 1995, the Company also has alternative minimum
tax credit carryforwards of $568,000 for income tax purposes. For financial
reporting purposes, the carryforwards have been recognized through a reduction
in deferred tax liabilities.
F-17
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
9. RELATED PARTY TRANSACTIONS:
The Company reimburses a stockholder for management and administrative
services. These charges totaled $275,000 for the year ended December 31, 1995
and $175,000 for each of the years ended December 31, 1994 and 1993. The fees
relate primarily to the use of the stockholder's physical resources and
administrative and technical personnel.
Miller Environmental Group ("MEG"), an environmental contractor based in
Calverton, New York, maintains and stores spill response equipment owned by NRC
and in the event of a spill, provides labor, equipment and materials to assist
in NRC's spill response activities. In fiscal 1995, NRC paid approximately
$1,750,000 to MEG for these services. The father of a SEACOR corporate officer
is Vice President, Secretary and Treasurer of MEG.
NRC also contracts with James Miller Marine Services ("JMMS"), an
environmental contractor based in Staten Island, New York, for services similar
to those provided by MEG. In fiscal 1995, NRC paid approximately $600,000 to
JMMS for these services. The brother of a SEACOR corporate officer is Vice
President of JMMS.
Loans from stockholders are made up of unsecured loans due to Norman and
Joyce McCall. The loans are due on demand and bear interest at 7% per annum at
December 31, 1995. On May 3, 1996, the loans were paid in full.
10. LONG-TERM DEBT:
Long-term debt balances, maturities, and interest rates are as follows for
the years ended December 31, in thousands of dollars:
<TABLE>
<CAPTION>
1995 1994
---- ----
<S> <C> <C>
Notes payable to former vessel owners, due in quarterly or semi-annual
installments and maturing from 1996 through 2003, at interest
rates ranging from 3.75% to 7.50%................................. $ 11,147 $ 13,210
Notes payable to banks, due in monthly
installments and maturing from 1995 through
2007, secured by vessels (9.75% at December 31,
1995)............................................................. 1,596 1,293
Notespayable to Nederlandse Scheepshypotheekbank N.V. ("Nedship Bank"), due in
quarterly installments payable from 1991 through 1996, secured by vessels,
bearing interest at LIBOR
plus 2.0% (7.375% at December 31, 1994)........................... - 5,227
DnB Revolving Credit Facility, interest payable
based upon interest option period at LIBOR plus 1.25% prior to term
conversion and principal and interest after conversion on August 31, 1996
due semi-annually through August 31, 2002 bearing interest at LIBOR plus
maximum of 1.5% (7.1875% at December 31,
1995)............................................................. 40,000 -
6% Convertible Subordinated Notes, due 2003,
F-18
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
interest payable semi-annually commencing 1994.................... 55,250 57,500
2.5% Convertible Subordinated Notes, due 2004,
interest payable semi-annually commencing 1994.................... 4,750 4,750
----------- ----------
112,743 81,980
Less - Portion due within one year..................................... (2,489) (5,896)
- Debt discount................................................... (2,188) (2,463)
----------- ----------
$ 108,066 $ 73,621
=========== ==========
</TABLE>
Annual maturities of long-term debt for the five years following December
31, 1995, are as follows, in thousands of dollars.
<TABLE>
<CAPTION>
YEAR 1996 1997 1998 1999 2000
- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
AMOUNT...................................... $ 2,489 $ 1,632 $ 1,494 $ 1,356 $ 1,356
</TABLE>
The long-term debt maturities schedule does not include future annual
maturities for borrowings outstanding under the DnB Facility at December 31,
1995. It is uncertain how much, if any, of the outstanding senior secured
revolving bridge loans due DnB at December 31, 1995 may be converted into term
loans on August 31, 1996, the date upon which the Company may elect to extend
all or a portion of the DnB Facility. If the outstanding senior secured
revolving bridge loans at December 31, 1995 were converted to term loans and the
Company did not extend its commitment for any other unused portion of the DnB
Facility on August 31, 1996, future annual maturities for the DnB Facility would
be $6,667,000 in each of the years 1997 through 2000 and $13,332,000 thereafter.
On August 20, 1993, the Company retired U.S. Government Guaranteed Ship
Financing Bonds in the amount of $7,303,000 with proceeds from the issuance of
the 6% Notes. At that time, $549,000 and $52,000 of unamortized debt discount
and deferred bond issue costs, respectively, were written off, and a redemption
premium and fees of $341,000 were paid, all of which was recorded as an
extraordinary loss. Debt discount amortization expense related to these bonds
was $66,000 for the year ended December 31, 1993.
In July 1993, the Company retired notes payable to a bank and former
vessel owners in the amount of $18,110,000 with proceeds from the issuance of
the 6% Notes. At that time, $1,011,000 of unamortized deferred debt issue costs
was written off, and fees of $178,000 were paid to the bank, all of which was
recorded as an extraordinary loss.
In April 1991, in conjunction with the Company's expansion in the North
Sea, VEESEA Holdings, Inc. ("VEESEA"), a 91% owned subsidiary of SEACOR, and its
subsidiaries (collectively, the "VEESEA Group") entered into a loan agreement
with Nedship Bank, pursuant to which Nedship Bank loaned pounds sterling
10,700,000 (or $18,426,000 based upon exchange rates in 1991). In conjunction
with regularly scheduled payments during 1995, the Company made optional
principal prepayments, amounting to $2,266,000, on the Nedship Bank loan, and
the loan was completely repaid by December 31, 1995.
In conjunction with eight vessels acquired in March 1993, SEACOR issued
two notes payable to the former vessel owners: (i) a $1,875,000, 7.5% unsecured
note repayable in eleven equal quarterly installments of $100,000 commencing
June 1993 with a final installment of $775,000 in March 1996, and (ii) a
$975,000, 6% unsecured note repayable in twelve quarterly installments of
$81,250 commencing June 1993 and maturing March 1996.
F-19
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
10. LONG-TERM DEBT: (CONTINUED)
On August 6, 1993, a customer who had previously sold a project vessel to
the Company for a promissory note confirmed a decision to terminate a long-term
charter of that vessel. Pursuant to this transaction, the customer forgave
$450,000 in principal amount of the note payable due from the Company under a
first preferred mortgage on vessels which had a net book value of $4,222,000 at
December 31, 1995, made other adjustments to the mortgage, and paid the Company
a demobilization fee of $235,000. The forgiveness of the note was recorded as an
extraordinary gain, and the demobilization fee was included in income before
extraordinary item.
On July 1, 1993, SEACOR sold $57,500,000 principal amount of 6% Notes. The
agreements under which the 6% Notes were issued provided for underwritten
resales to qualified institutional buyers and to non-U.S. purchasers in
transactions exempt from registration under applicable securities laws. The 6%
Notes are convertible into shares of SEACOR's Common Stock at any time prior to
July 1, 2003, at a conversion rate of 39,024 shares per $1,000 principal amount
of the 6% Notes. There is no sinking fund for the 6% Notes; however, the 6%
Notes are redeemable, in whole or in part, at the election of SEACOR any time on
or after July 1, 1996, initially at 104.2% of the principal amount thereof and
declining by 0.67% each year thereafter to 100% of the principal amount in 2003.
In addition, upon the occurrence of a change in control of SEACOR (as defined in
the indenture of the 6% Notes), holders of the 6% Notes may elect to require
SEACOR to purchase their 6% Notes, in whole or in part, at a purchase price
equal to 100% of the principal amount thereof, plus accrued interest to the date
of purchase. SEACOR incurred $2,176,000 in costs associated with the sale of the
6% Notes including $1,869,000 of the underwriters discount. These debt issue
costs were charged to other assets and are being amortized to expense over ten
years.
In February 1995, the Company purchased $2,250,000 of the then outstanding
$57,500,000 principal amount of its 6% Notes in the open market. The difference
between the amount paid to acquire the 6% Notes and their carrying value
resulted in the Company recognizing a gain of $199,000, net after giving effect
to a write-off of $71,000 in unamortized deferred debt issue costs associated
with the sale of the 6% Notes. The gain is included in other income.
In December 1993, the Company financed, in part, the acquisition of ten
offshore towing supply vessels from CNN with: (i) $12,000,000 principal amount
senior unsecured notes payable having varying maturities of one to ten years,
bearing interest rates ranging from 3.25% to 5.50% per annum and which have been
guaranteed by SEACOR, and (ii) $4,750,000 principal amount of 2.5% Notes. The
2.5% Notes are convertible into shares of SEACOR's Common Stock at any time
prior to maturity at a conversion rate of 32.979 shares per $1,000 principal
amount of the 2.5% Notes. There is no sinking fund for the 2.5% Notes; however,
the 2.5% Notes are redeemable, in whole or in part, at the election of SEACOR
any time on or after July 1, 1997, initially at 104.2% of the principal amount
thereof and declining by 0.60% each year thereafter to 100% of the principal
amount after July 1, 2003. In addition, upon the occurrence of a change in
control of SEACOR (as defined in the indenture of the 2.5% Notes), holders of
the 2.5% Notes may elect to require SEACOR to purchase their 2.5% Notes, in
whole or in part, at a purchase price equal to 100% of the principal amount
thereof, plus accrued interest to the date of purchase. The stated interest
rates on the unsecured notes and the 2.5% Notes (collectively, the "Notes") were
considered lower than interest rates at which the Company would normally obtain
similar financing which were determined to range from 5.10% to 9.14%. The Notes
were valued based on discounting concepts to approximate their fair market
value. The difference between the Notes' fair market and stated values at
inception, $2,749,000, was recorded as debt discount and as a reduction in the
carrying value of the vessels acquired. Amortized debt discount included in
interest expense was $277,000 and $309,000 for the years ended December 31, 1995
and 1994, respectively.
F-20
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
Certain of SEACOR's subsidiaries (the "borrowing subsidiaries") are
parties to the DnB Facility, with DnB as lender and SEACOR as guarantor.
Pursuant to the DnB Facility, the borrowing subsidiaries may borrow up to
$85,000,000 aggregate principal amount of senior secured revolving bridge loans
any time prior to August 31, 1996 (the "Initial Term"). At the Company's
election, such loans, on or prior to August 31, 1996, may be converted into
senior secured reducing revolving credit loans maturing on August 31, 2003.
Until termination of the DnB Facility, a commitment fee is payable to DnB on a
quarterly basis, computed at the rate of one-half of one percent per annum on
the average unfunded portion of the credit facility.
During the Initial Term of the DnB Facility, outstanding borrowings bear
interest at an annual rate equal to 125 basis points above LIBOR. If the
Borrowing Subsidiaries elect to convert the senior secured bridge loans to
senior secured reducing revolving credit loans (the "Term Loans"), the Maximum
Committed Amount automatically will decrease semi-annually by certain
percentages described in the DnB Facility. The DnB Facility requires the
Company, on a consolidated basis, to maintain a minimum ratio of indebtedness to
vessel value, as defined, a minimum cash and cash equivalent level, and a
specified debt service coverage ratio. The Company also is prohibited from
entering into additional indebtedness above a certain level without consent.
Furthermore, SEACOR, without prior written consent of DnB, is prohibited through
August 31, 1996 (the maturity date of the bridge loan portion of the DnB
Facility) from paying dividends to its shareholders. Pursuant to the DnB
Facility, the Term Loans would bear interest at the annual rate equal to a
maximum of 150 basis points above LIBOR.
Borrowings outstanding pursuant to the DnB Facility are secured by, among
other things, a guaranty of SEACOR of the obligations of the Borrowing
Subsidiaries, first preferred mortgages on vessels owned by the Borrowing
Subsidiaries which had a net book value of $72,980,000 at December 31, 1995, a
negative pledge relating to certain vessels, and an assignment of earnings and
certain contract rights with respect to vessels owned and operated by the
Borrowing Subsidiaries. If the Borrowing Subsidiaries exercise the
aforementioned conversion election, certain additional subsidiaries of the
Company will be required to guaranty the obligations of the Borrowing
Subsidiaries under the DnB Facility and provide mortgages on additional vessels
to secure such guaranty.
On September 15, 1995, $74,000,000 principal amount was borrowed under the
DnB Facility to finance the acquisition of offshore marine service vessels and
other related assets pursuant to the Graham Acquisition and to pay related debt
issue and acquisition costs. On November 14, 1995, the Company repaid
$14,000,000 principal amount of the indebtedness from existing cash balances. On
December 14, 1995, the Company borrowed an additional $11,000,000 under the DnB
Facility to finance the cash portion of the CNN Acquisition and pay related
acquisition costs. On December 21, 1995, the Company repaid $31,000,000
principal amount of the indebtedness with proceeds from the sale of common
stock, and an additional $5,000,000 principal amount was repaid subsequent to
year end.
Following the NRC Merger in March 1995, the Company repaid the remaining
outstanding principal balance, $12,500,000, under a Credit Agreement between NRC
and CIBC Inc., as amended.
11. EXTRAORDINARY ITEM:
In 1993, the Company recognized a net extraordinary loss caused by debt
extinguishment of $1,093,000 ($0.19 per share), net of a $588,000 income tax
benefit. Of the extraordinary loss, $1,385,000 was caused by the write-off of
unamortized debt discount, bond issue and debt issue costs, and the payment of
redemption premiums and fees relating to the retirement of outstanding
indebtedness due U.S. Government Guaranteed Ship Financing Bond holders, note
holders and a bank. The redemption premiums, fees, and indebtedness were paid
with the net
F-21
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
proceeds from the Company's sale of 6% Notes. The extraordinary loss was reduced
by a $292,000 gain recognized upon the forgiveness of indebtedness associated
with the termination of a vessel charter.
12. LEASES:
From December 1993 through September 30, 1995, the Company was the lessor
of ten offshore towing supply vessels under bareboat charter agreements with
CNN. Pursuant to the CNN Acquisition, the Company and CNN agreed to terminate
CNN's bareboat charter of these vessels. Operating revenue earned from the
bareboat charter of these vessels totaled $3,795,000, $5,074,000 and $350,000
for the years ended December 31, 1995, 1994, and 1993, respectively.
In 1995, the Company entered into a sale-type lease with the TMM Joint
Venture for one anchor handling towing supply vessel. The lease expires in seven
years and contains options which permit the TMM Joint Venture to purchase the
vessel at various dates during the term of the lease. Unearned income and
deferred gain amortized to other income for the year ended December 31, 1995,
totaled $387,000. The following lists the components of the net investment in
the sale-type lease as of December 31, of which $183,000 and $2,543,000 are
reported in current and noncurrent other assets, respectively, in thousands of
dollars:
1995
----
Minimum lease payments receivable................. $4,161
Estimated residual value of leased property....... 781
Less: Unearned income............................. (2,216)
------
Net investment in sale-type lease................. $2,726
======
Minimum rental receivables due from sale-type leases are $667,000 in each
of the fiscal years ended December 31, 1996 through 2001 and $159,000 due in
2002.
The Company is the lessee under a capital lease for offshore oil boom that
is used in conjunction with its oil spill response activities. The offshore
boom, with gross cost and accumulated depreciation of $1,807,000 and $269,000,
respectively at December 31, 1995, is being depreciated over an estimated useful
life of seven years. Included in current and noncurrent liabilities,
respectively, at December 31, 1995 are $172,000 and $368,000 of obligations
under capital leases. The following is a schedule of future minimum lease
payments due under a capital lease together with the present value of the net
minimum lease payments as of December 31, in thousands of dollars:
1995
----
1996.............................................. $300
1997.............................................. 450
----
Total minimum lease payments...................... 750
Less: amount representing interest................ 210
----
Present value of minimum lease payments........... $540
====
13. MAJOR CUSTOMERS AND SEGMENT DATA:
Two customers accounted for approximately 16% and 10%, respectively, of
revenues in the year ended December 31, 1995; two customers accounted for
approximately 19% and 15%, respectively, of revenues in the
F-22
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
year ended December 31, 1994; and three customers accounted for approximately
18%, 12% and 10%, respectively, of revenues in the year ended December 31, 1993.
Operations are conducted through two business segments, offshore vessel
and environmental services. On March 14, 1995, the remaining outstanding stock
that the Company did not already own, in corporations now comprising the
Company's environmental segment, was acquired, and from that date forward, the
Company has reflected the financial condition and results of operations of those
environmental subsidiaries in its consolidated financial statements. Prior to
March 14, 1995, the Company reported its interest in the environmental
subsidiaries as an investment in 50% or less owned companies which were
accounted for under the equity method. The Company's offshore service vessel
segment operates in different geographical areas; whereas, the environmental
segment's primary operations are in the United States. Information by business
segment and geographical area is as follows for the years ended December 31, in
thousands of dollars:
1995 1994 1993
---- ---- ----
OPERATING REVENUE:
MARINE-(a)
United States........................ $72,964 $63,283 $54,864
North Sea............................ 13,523 16,222 20,007
West Africa.......................... 14,637 10,189 12,374
Other Foreign........................ 3,770 4,291 4,923
-------- ------- -------
104,894 93,985 92,168
ENVIRONMENTAL............................ 21,765 - -
-------- ------- -------
$126,659 $93,985 $92,168
======== ======= =======
OPERATING PROFIT
MARINE-(a)
United States........................ $17,529 $14,040 $14,598
North Sea............................ (2,952) 7 3,085
West Africa.......................... 3,840 2,582 1,683
Other Foreign........................ 1,843 1,667 1,816
------- ------- -------
20,060 18,296 21,182
ENVIRONMENTAL............................ 1,626 - -
------- ------- -------
21,886 18,296 21,182
Other income (expense) (c)............... 190 (73) 116
General corporate administration......... (2,123) (2,139) (2,268)
Net interest expense..................... (4,311) (3,548) (3,719)
Minority interest in loss (income)
of a subsidiary...................... 321 184 (51)
Equity in earnings of 50% or less
owned companies...................... 872 975 287
Income tax expense....................... (5,510) (4,368) (5,339)
------- ------- -------
Income before extraordinary item......... $11,325 $ 9,327 $10,208
======= ======= =======
IDENTIFIABLE ASSETS:
MARINE-
United States (c).................... $208,424 $140,185 $109,317
North Sea............................ 24,105 32,004 36,860
West Africa (e)...................... 69,022 41,476 29,428
Other Foreign (b).................... 9,850 15,093 42,009
-------- -------- --------
311,401 228,758 217,614
ENVIRONMENTAL............................ 32,652 - -
CORPORATE (d)............................ 7,132 9,387 839
-------- -------- --------
$351,185 $238,145 $218,453
======== ======== ========
F-23
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
PROVISION FOR DEPRECIATION AND AMORTIZATION:
MARINE-
United States (c).................... $ 8,623 $ 7,304 $ 6,575
North Sea............................ 3,621 3,490 3,522
West Africa (e)...................... 2,931 2,151 1,220
Other Foreign (d).................... 664 976 692
------- ------- -------
15,839 13,921 12,009
ENVIRONMENTAL 2,875 - -
CORPORATE (d) 128 187 98
------- ------- -------
$18,842 $14,108 $12,107
======= ======= =======
CAPITAL EXPENDITURES:
MARINE-
United States........................ $75,782 $ 2,852 $ 7,900
North Sea............................ 45 225 1,934
West Africa.......................... 21,722 70 1,020
Other Foreign........................ 38 18 32,163
------- ------- -------
97,587 3,165 43,017
======= ======= =======
ENVIRONMENTAL 688 - -
CORPORATE 75 206 14
------- ------- -------
$98,350 $ 3,371 $43,031
======= ======= =======
- --------------------
(a) "West Africa" and "Other Foreign" include the results of vessels bareboat
chartered-out to CNN from December 1993 through September 1995, at which
time the bareboat charters were canceled and the Company resumed operation
of the vessels.
(b) In 1993, identifiable assets include vessels acquired from CNN that
operated only during December.
(c) Other income (expense) excludes gain/(loss) from equipment sales or
retirements of property and certain other expenses that were reclassified
to operating profit in geographical areas of the Marine segment.
(d) The Company's corporate assets include investments in 50% or less owned
companies.
(e) In 1995, identifiable assets include the effect of the Graham and CNN
Acquisitions.
14. COMMON STOCK:
In March 1993, SEACOR issued 125,000 shares of common stock at $15.00 per
share or $1,875,000 pursuant to the acquisition of seven supply vessels.
On March 14, 1995, pursuant to the NRC Merger, SEACOR acquired the
remaining 57.1% of the outstanding common stock of NRC Holdings that it did not
already own through a merger of NRC Holdings with and into CRN. SEACOR issued
292,965 shares of its common stock pursuant to the transaction that was valued
at $5,707,000.
On October 27, 1995, SEACOR and its primary environmental subsidiary, NRC,
amended certain existing agreements with Coastal. Those agreements, among other
things, eliminated certain options held by Coastal to purchase up to 20% of the
fully diluted common stock of NRC. SEACOR issued 311,357 shares of common stock,
having a value at time of issuance of $7,500,000, in exchange for the
cancellation of Coastal's stock options in NRC.
F-24
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
On November 4, 1995, pursuant to the CNN Acquisition, SEACOR issued 59,948
shares of common stock that was valued at $11,300,000 at the date of issuance to
acquire three towing supply vessels.
In December 1995, SEACOR completed a public offering of its common stock
that resulted in the sale of 1,612,500 shares. The proceeds received from this
sale, net of underwriting discount, totaled $36,942,000. The Company incurred
$644,000 in expenses associated with this stock offering (other than
underwriting discount) which was charged against additional paid-in capital
arising from the sale. The public offering included 1,550,000 shares of common
stock sold by several of SEACOR's stockholders.
15. MINORITY INTEREST:
In December 1991, the managing agent of the Company's vessels operating
the North Sea invested approximately $1,278,000 of cash in VEESEA. In return for
this investment and for services rendered to the VEESEA Group, which were
included in mobilization expenses, the agent received 9% of the equity of
VEESEA, and SEACOR, through another subsidiary, assigned to the agent a $679,000
participation in debt due to the SEACOR subsidiary from the VEESEA Group. The
obligation due the agent, including accrued interest at 12% per annum, was
subordinated to the Nedship Bank loans to the VEESEA Group and is reported in
the consolidated balance sheet as other noncurrent liabilities.
A fee is paid the minority stockholder for managing the Company's vessels
in the North Sea. The U.S. dollar equivalent of fees paid in pounds sterling
under this arrangement approximated $960,000 in each of the years ended December
31, 1995, 1994, and 1993.
16. BENEFIT PLANS:
NON-QUALIFIED STOCK OPTION PLAN-
SEACOR's 1992 Non-Qualified Stock Option Plan (the "Plan") provides for
the grant of non-qualified options to purchase shares of common stock to
officers and key employees of the Company. Under the Plan, 500,000 shares of
common stock have been reserved for sale. The exercise price per share of
options granted under the Plan cannot be less than 75% or greater than 100% of
the "Fair Market Value" (as defined in the Plan) of one share of common stock on
the date of the grant.
Options granted under the Plan expire no later than the tenth anniversary
of the date of grant. Recipients of options must remain employed for at least
two years from date of grant before options become exercisable, subject to the
earlier exercise under certain circumstances. The exercise price per share of
each option may be paid in cash, shares of common stock owned by the grantee in
a combination of cash and common stock or by delivery of a promissory note not
to exceed 90% of the total exercise price.
The following transactions occurred in the stock option plan during the
years ended December 31:
1995 1994 1993
---- ---- ----
Options outstanding, at beginning of year.. 309,250 266,750 50,000
Options granted............................ 117,747 42,500 267,500
Options exercised.......................... - - -
Options canceled........................... (1,800) - (50,750)
------- ------- -------
Options outstanding, at end of year........ 425,197 309,250 266,750
======= ======= =======
F-25
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
16. BENEFIT PLANS: (continued)
Price range of options exercised....... $ - $ - $ -
Price range of options outstanding,
end of year.......................... $9.64-21.25 $14.75-21.25 $14.75-21.00
At December 31, 1995, 74,803 shares were available for future grant and
264,950 options were exercisable. At December 31, 1994 and 1993, there were no
exercisable options.
On March 14, 1995, the Executive Compensation and Stock Option Committee
of the Board of Directors granted two officers of SEACOR and three key employees
of NRC options to purchase a total of 102,192 shares of common stock of SEACOR
at an exercise price of $18.75 per share. Furthermore, as part of the NRC
Merger, the Company assumed the obligations of the NRC Holdings 1994
Non-Qualified Stock Option Plan. As a result, the Company converted existing
options for shares of NRC Holdings into options for 15,555 shares of SEACOR's
common stock at an exercise price of $9.64 per share. The exercise price per
share for options issued or converted in 1995 equaled the market price at the
original dates the options were granted.
SEACOR SAVINGS PLAN-
The Company established the SEACOR Savings Plan ("SEACOR Plan"), effective
July 1, 1994. This defined contribution plan provides eligible employees with an
opportunity to accumulate retirement savings. Requirements for eligibility
include, (i) one year of full time employment, (ii) attainment of 21 years of
age, and (iii) residency in the United States.
Participants may contribute up to 15% of their pre-tax annual
compensation. During 1995 and 1994, the Company matched 50% up to the first 4%
of an employee's contribution to the SEACOR Plan, and the Board of Directors of
the Company determine the Company's matching contribution annually. The
participant's and Company's contributions are funded to the SEACOR Plan monthly.
Participants are fully vested in the Company's contribution upon (i)
attaining the age of 65, (ii) death, (iii) becoming disabled, or (iv) completing
five years of employment service. Forfeitures of Company contributions for
non-vested and terminated employees will be used to reduce future contributions
of the Company or pay administrative expenses of the SEACOR Plan.
In connection with the NRC Merger, the Company assumed the obligations of
a tax-deferred savings plan that was implemented by NRC in 1993. Under the terms
of the NRC Plan, eligible employees can elect to contribute up to 15% of their
compensation, and NRC matches 100% up to the first 3% of the employee's
contribution.
In connection with the McCall acquisition, the Company assumed the
obligations of a defined contribution plan that was implemented by McCall in
1995. Under the terms of the McCall plan, eligible employees can elect to
contribute up to 15% of their compensation. During 1995, McCall matched 1/3 of
the first 6% of an employee's contribution to the plan. The Board of Directors
of McCall determine the matching contribution annually.
The combined Companies' contributions to the plans were $215,000 and
$51,000 for the years ended December 31, 1995 and 1994, respectively.
F-26
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
16. BENEFIT PLANS: (continued)
EMPLOYEE RESTRICTED STOCK AWARD-
On March 14, 1995, in recognition of an executive officer's commitment to
the continued growth and financial success of the Company, the executive officer
was granted 11,500 restricted shares of SEACOR's common stock. The market value
of the restricted shares was $216,000 at time of grant and was recorded as
unamortized restricted stock compensation in a separate component of
stockholders' equity. This compensation will be amortized to expense over a
three year vesting period. Notwithstanding the forgoing, 100% beneficial
ownership of the restricted stock shall vest immediately upon death, disability,
termination of the employee without "cause" or the occurrence of a "change in
control" of the Company.
17. QUARTERLY FINANCIAL INFORMATION (UNAUDITED):
QUARTER ENDED
-------------
DEC 31 SEPT. 30 JUNE 30 MARCH 31
------ -------- ------- --------
(THOUSANDS OF DOLLARS, EXCEPT PER
SHARE AMOUNT)
1995
Revenue...................................$44,550 $36,422 $25,504 $20,183
Gross Profit.............................. 13,039 7,886 5,077 3,387
Net income................................ 5,334 2,144 2,310 1,537
Earnings per common share; Assuming no
dilution................................ 0.66 0.29 0.31 0.21
Assuming full dilution.................... 0.56 0.28 0.29 0.22
F-27
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
18. SUPPLEMENTAL INFORMATION FOR STATEMENTS OF CASH FLOWS:
YEAR ENDED DECEMBER 31
----------------------
1995 1994 1993
---- ---- ----
Cash income taxes paid.................................. $4,942 $4,300 $3,619
Cash interest paid...................................... 6,132 6,773 3,209
Schedule of Non-Cash Investing and Financing Activities:
Property exchanged for investment in and notes
receivable from 50% or less owned company....... - 2,045 -
Joint venture investment increase related to deferred gain 315 718 -
Common stock issued in exchange for stock options in NRC 7,500 - -
Purchase of vessels with-long-term notes, net of discount - - 13,185
-common stock..................................... 11,300 - 1,875
-2.5% notes, net of discount...................... - - 3,665
-accounts receivable.............................. - - 112
19. SUBSEQUENT EVENTS:
Effective May 31, 1996, the Company acquired the McCall Affiliated
Companies ("McCall") in exchange for 1,306,550 shares of the Company's common
stock. The acquisition was accounted for as a pooling of interests; accordingly,
prior period financial information has been restated to include this
acquisition. On December 31, 1995, McCall had $37,882,000 of assets. Selected
separate and combined financial information of the Company and McCall for the
years ended December 31, 1995, 1994 and 1993 is presented below (in thousands).
The Company McCall Adjustments(1) Combined
----------- ------ -------------- --------
Operating Revenue
1995.............. $106,269 $20,029 $361 $126,659
1994.............. 74,366 19,619 - 93,985
1993.............. 73,720 18,448 - 92,168
Net Income
1995.............. 10,226 1,099 - 11,325
1994.............. 7,906 1,421 - 9,327
1993.............. 7,410 1,705 - 9,115
- -----------
(1) In August 1995, the Company and an affiliate of McCall formed SEAMAC
OFFSHORE, L.L.C. ("SEAMAC"), which was jointly owned and which operated two
vessels in Nigeria. Prior to the McCall Acquisition, SEACOR recorded its
interest in this venture based upon its 50% equity interest. As a result of the
McCall Acquisition, this venture is to be dissolved and the assets will be
wholly-owned by the Company. This adjustment consolidates 100% of SEAMAC with
SEACOR.
On June 6, 1996, the Company notified the Trustee of its 6.0% Notes of
election to call the 6.0% Notes for redemption on July 12, 1996. Holders of the
6.0% Notes have the right to convert the 6.0% Notes into shares of Common Stock
at a ratio of 39.024 shares of Common Stock per $1,000 principal amount of the
6.0% Notes (representing a conversion price of $25.625 per share) prior to the
date of redemption. If the entire $55,250,000
F-28
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
principal amount outstanding of the 6.0% Notes were converted, 2,156,076 shares
of Common Stock would be issued.
On June 6, 1996, the Company and CNN entered into an agreement (the "1996
CNN Agreement") pursuant to which the Company agreed to acquire six vessels from
CNN for an aggregate purchase price of $22,675,000, with the understanding that
three of such vessels will be bareboat chartered to CNN. The 1996 CNN Agreement
also provides for the Company to prepay the promissory notes issued to CNN by a
subsidiary of the Company on December 17, 1993 in connection with the Company's
acquisition on such date of certain vessels from CNN. In addition, CNN has
notified the Company of its election to convert $4.75 million principal amount
of the Company's 2.5% Notes issued to CNN in connection with such acquisition of
vessels into 156,650 shares of Common Stock in accordance with the terms of the
2.5% Notes. Pursuant to the 1996 CNN Agreement, the Company agreed to include
459, 948 shares of Common Stock owned by CNN on June 6, 1996 and the 156,650
additional shares of Common Stock to be issued to CNN upon the conversion of the
2.5% Notes in Offering for resale to the public. The 1996 CNN Transaction is
conditioned upon the sale of such 616,598 shares of Common Stock pursuant to
this offering and is intended to occur substantially simultaneously with such
sale. In connection with this transaction, the Company expects to record an
extraordinary loss in connection with the prepayment of the promissory note of
approximately $861,000, net of tax.
On June 7, 1996, the Company filed a Registration Statement with the
Securities and Exchange Commission, covering the sale of 750,000 shares of its
common stock to the public and registering additional shares to be sold by
selling shareholders, including the CNN shares discussed above.
F-29
<PAGE>
<TABLE>
<CAPTION>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE DATA, UNAUDITED)
SEPTEMBER 30, DECEMBER 31,
1996 1995
------------- ------------
<S> <C> <C>
ASSETS
Current Assets:
Cash and temporary cash investments .............................................. $ 28,484 $ 28,786
Marketable securities ............................................................ 307 623
Trade and other receivables, net of allowance for
doubtful accounts of $459 and $380, respectively .............................. 44,479 32,900
Affiliate receivables ............................................................ 304 872
Inventories ...................................................................... 1,487 1,602
Prepaid expenses and other ....................................................... 2,131 3,490
--------- ---------
Total current assets ............................................................. 77,192 68,273
--------- ---------
Investments in, at Equity, and Receivables from 50%
or Less Owned Companies .......................................................... 7,306 6,484
--------- ---------
Property and Equipment ............................................................. 374,521 337,946
Less-Accumulated depreciation .................................................... (92,392) (75,038)
--------- ---------
Net property and equipment ....................................................... 282,129 262,908
--------- ---------
Other Assets ....................................................................... 11,944 13,218
--------- ---------
$ 378,571 $ 350,883
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Current portion of long-term debt ................................................ 276 2,489
Accounts payable - trade ......................................................... 12,190 7,742
Accounts payable - affiliates .................................................... 1,983 --
Other current liabilities ........................................................ 11,933 9,519
--------- ---------
Total current liabilities ..................................................... 26,382 19,750
--------- ---------
Long-Term Debt, Less Debt Discount of $2,188 in 1995 ............................... 7,955 108,066
Deferred Income Taxes .............................................................. 38,071 36,182
Deferred Gain and Other Liabilities ................................................ 1,980 1,474
Minority Interest and Indebtedness to Shareholder .................................. 1,853 1,947
Stockholders' Equity:
Common stock, $.01 par value, 13,155,250 and
9,886,393 shares issued at September 30, 1996,
and December 31, 1995, respectively ........................................... 131 99
Additional paid-in capital ......................................................... 223,853 127,317
Retained earnings .................................................................. 80,539 57,852
Less 55,768 shares held in treasury at September 30,
1996, and December 31, 1995, at cost ............................................. (576) (576)
Less unamortized restricted stock compensation ..................................... (747) (159)
Currency translation adjustments ................................................... (870) (1,069)
--------- ---------
Total stockholders' equity .................................................... 302,330 183,464
--------- ---------
$ 378,571 $ 350,883
========= =========
</TABLE>
The accompanying notes are an integral part of the financial statements
and should be read in conjunction herewith.
F-30
<PAGE>
<TABLE>
<CAPTION>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT SHARE DATA, UNAUDITED)
Three Months Ended Nine Months Ended
September 30, September 30,
--------------------------------- --------------------------------
1996 1995 1996 1995
--------------- --------------- --------------- --------------
<S> <C> <C> <C> <C>
Operating Revenue:
Marine ..............................................$ 50,307 $ 24,368 $ 138,043 $ 65,957
Environmental-
Oil spill response................................. 2,628 7,728 8,547 8,367
Retainer and other services........................ 4,610 3,930 13,703 7,721
--------------- --------------- -------------- -------------
57,545 36,026 160,293 82,045
--------------- --------------- -------------- -------------
Costs and Expenses:
Costs of oil spill response........................... 2,263 6,956 7,655 7,117
Operating expenses -
Marine............................................. 27,110 15,818 77,137 42,819
Environmental...................................... 1,747 1,303 4,511 2,874
Administrative and general............................ 5,759 3,592 16,876 8,249
Depreciation and amortization......................... 6,249 4,665 17,791 12,773
--------------- --------------- -------------- -------------
43,128 32,334 123,970 73,832
--------------- --------------- -------------- -------------
Operating Income.......................................... 14,417 3,692 36,323 8,213
--------------- --------------- -------------- -------------
Other (Expense) Income:
Interest on debt...................................... (555) (1,250) (4,007) (4,149)
Interest income....................................... 689 269 1,731 1,789
Gain (loss) from equipment sales or retirements....... 926 (359) 1,448 1,814
McCall acquisition costs.............................. (37) - (509) -
Other, net............................................ (299) 21 11 248
--------------- ------------- ------------ ------------
724 (1,319) (1,326) (299)
--------------- ------------- ------------ ------------
Income Before Income Taxes, Minority
Interest, Equity in Net Earnings of
50% or Less Owned Companies and Extraordinary
Item .............................................. 15,141 2,373 34,997 7,914
Income Tax Expenses....................................... 5,240 863 12,445 2,852
--------------- --------------- -------------- -------------
Income Before Minority Interest, Equity in Net
Earnings of 50% or Less Owned Companies and
Extraordinary Item.................................... 9,901 1,510 22,552 5,062
Minority Interest in Loss of a Subsidiary................. 29 81 176 250
Equity in Net Earnings of 50% or Less Owned
Companies............................................. 325 246 766 746
--------------- --------------- -------------- -------------
Income Before Extraordinary Item...................... 10,255 1,837 23,494 6,058
Extraordinary Item - Loss on Extinguishment
of Debt............................................ 807 - 807 -
--------------- --------------- -------------- -------------
Net Income............................................ $ 9,448 $ 1,837 $ 22,687 $ 6,058
=============== =============== ============== ==============
Earnings Per Common Share - Assuming No Dilution:
Income before Extraordinary Item...................... $ 0.78 $ 0.25 $ 2.15 $ 0.82
Extraordinary Item.................................... (0.06) - (0.07) -
-------------- --------------- -------------- --------------
Net Income......................................... $ 0.72 $ 0.25 $ 2.08 $ 0.82
=============== =============== ============== ==============
Earnings Per Common Share - Assuming Full Dilution:
Income before Extraordinary Item...................... $ 0.77 $ 0.24 $ 1.93 $ 0.80
Extraordinary Item.................................... (0.06) - (0.06) -
-------------- --------------- -------------- --------------
Net Income......................................... $ 0.71 $ 0.24 $ 1.87 $ 0.80
=============== =============== ============== ==============
Weighted Average Common Shares:
Assuming No Dilution.................................. 13,074,963 7,435,320 10,923,340 7,358,055
Assuming Full Dilution................................ 13,347,014 9,890,728 12,725,616 9,813,463
</TABLE>
The accompanying notes are an integral part of the financial statements
and should be read in conjunction herewith.
F-31
<PAGE>
<TABLE>
<CAPTION>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS, UNAUDITED)
Nine Months Ended September 30,
1996 1995
---- ----
<S> <C> <C>
Net Cash Provided by Operating Activities .......................................... $ 40,455 $ 5,378
-------- --------
Cash Flows from Investing Activities:
Purchase of property and equipment .............................................. (37,382) (1,767)
Purchase of marketable securities ............................................... (326) --
Proceeds from sale of marketable securities ..................................... 642 --
Investments in and advances to 50% or less owned
companies ....................................................................... (293) (870)
Cash acquired in a business combination ......................................... -- 1,966
Assets acquired from John E. Graham & Sons ...................................... -- (72,854)
Principal payments received under a sale-type lease ............................. 133 --
Principal payments on notes due from 50% or less
owned companies .............................................................. 747 --
Proceeds from sale of equipment ................................................. 2,318 4,076
Other ........................................................................... 288 --
-------- --------
Net cash used in investing activities ........................................ (33,873) (69,449)
-------- --------
Cash Flows from Financing Activities:
Principal payments on long-term debt ............................................ (50,733) (19,052)
Payments of public offering costs ............................................... (448) --
Net proceeds from sale of common stock .......................................... 37,679
(Payments) proceeds on stockholders' loans ...................................... (1,596) 242
Proceeds from issuance of long-term debt ........................................ 7,711 74,000
Proceeds from exercise of stock options ......................................... 489 --
Purchase of 6% convertible subordinated notes ................................... -- (1,980)
-------- --------
Net cash (used) provided in financing activities ............................. (6,898) 53,210
-------- --------
Effect of Exchange Rate Changes
on Cash and Cash Equivalents .................................................... 14 (2)
-------- --------
Net Decrease in Cash and Cash Equivalents .......................................... (302) (10,863)
Cash and Cash Equivalents, Beginning of Period ..................................... 28,786 44,332
-------- --------
Cash and Cash Equivalents, End of Period ........................................... $ 28,484 $ 33,469
======== ========
</TABLE>
The accompanying notes are an integral part of the financial statements
and should be read in conjunction herewith.
F-32
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION -
The condensed consolidated financial information for the three and nine-month
periods ended September 30, 1996, and the three and nine-month periods ended
September 30, 1995, has been prepared by the Company and was not audited by its
independent public accountants. In the opinion of management, all adjustments
(which include only normal recurring adjustments) necessary to present fairly
the financial position, results of operations, and cash flows at September 30,
1996, and for all periods presented have been made. Results of operations for
the interim periods presented are not necessarily indicative of the operating
results for the full year or any future periods.
On May 31, 1996, the Company acquired McCall Enterprises, Inc. and affiliated
companies pursuant to a series of merger and share exchange agreements. This
acquisition has been accounted for as a pooling-of-interests. The financial
statements included herein are based upon the assumption that the companies were
combined for the nine-months ended September 30, 1996, and the financial
statements of the prior year have been restated to give effect to the business
combination.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted. These condensed consolidated financial
statements should be read in conjunction with the financial statements and
related notes thereto included in the Company's Annual Report on Form 10-K for
the fiscal year ended December 31,1995 and the Company's Current Report on Form
8-K dated May 31, 1996 and filed with the Securities and Exchange Commission on
June 14, 1996.
2. EARNINGS PER SHARE -
Earnings per common share assuming no dilution were computed based on the
weighted average number of unrestricted and restricted common shares issued and
outstanding during the relevant periods. The additional common stock assumed to
be outstanding to reflect the dilutive effect of common stock equivalents was
excluded from the computation as insignificant.
Earnings per common share assuming full dilution were computed based on the
weighted average number of unrestricted and restricted common shares issued and
outstanding, additional shares assumed to be outstanding to reflect the dilutive
effect of common stock equivalents using the treasury stock method, and the
assumption that all convertible subordinated notes were converted to common
stock. Net income has been adjusted for interest expense and debt discount
amortization (net of income tax) associated with the convertible subordinated
notes. During July 1996, all of the Company's then outstanding Convertible
Subordinated Notes Were converted into shares of the Company's common stock.
3. LONG-TERM DEBT -
During the nine months ended September 30, 1996, indebtedness of the Company's
borrowing subsidiaries to Den norske Bank A/S ("DnB") under the revolving credit
facility dated September 15, 1995, as amended, was reduced by $32.3 million, the
net result of $40.0 million in repayments offset by $7.7 million in borrowings.
The Company has guaranteed the obligations of its borrowing subsidiaries to DnB
under such credit facility.
F-33
<PAGE>
4. 1996 COMMON STOCK OFFERING -
On July 3, 1996, the Company sold in an underwritten public offering 909,235
shares of its common stock at $43.50 per share (the "1996 Common Stock
Offering"). In conjunction therewith, 842,355 shares of common stock were sold
by certain of the Company's stockholders. The Company received net proceeds of
approximately $37.7 million of which $26.0 million was used to purchase four
vessels acquired from Compagnie Nationale de Navigation, a French corporation
("CNN"), pursuant to the 1996 CNN Transaction (defined below) and to prepay $9.6
million of indebtedness then owed by the Company to CNN, and the remainder of
which has been allocated for general corporate purposes.
5. 1996 CNN TRANSACTION -
On July 3, 1996, pursuant to an agreement entered into by the Company and CNN in
June 1996, the Company consummated a transaction providing for the acquisition
from CNN of six vessels for $22.65 million in cash. At closing, the Company
prepaid $9.6 million aggregate principal amount of the indebtedness outstanding
under promissory notes previously issued to CNN by a subsidiary of the Company.
In addition, CNN converted $4.75 million principal amount of the Company's then
outstanding 2.5% Convertible Subordinated Notes due January 1, 2004 (the "2.5%
Notes") into 156,650 shares of the Company's common stock (in accordance with
the terms of the 2.5% Notes), and subsequently sold all 616,598 shares of the
Company's common stock then owned by it (including the shares of the Company's
common stock received by CNN upon such conversion) in the 1996 Common Stock
Offering.
The Company's common stock issued upon conversion of the 2.5% Notes has been
recorded in stockholders' equity at $3.9 million, the net carrying value of the
2.5% Notes based on the $4.75 million principal amount outstanding on the
conversion date and $0.8 million of related debt discount. The difference
between the $9.6 million paid to extinguish the promissory notes due to CNN and
their $8.4 million net carrying value has been recorded by the Company as an
$0.8 million extraordinary loss ($0.06 per primary share), net of a $0.4 million
income tax benefit.
6. 6.0% NOTE CONVERSION -
On July 12, 1996, following notice from the Company of the redemption on such
date of all $55.25 million principal amount of its then outstanding 6.0%
Convertible Subordinated Notes due July 1, 2003 (the "6.0% Notes"), the holders
thereof converted all of such 6.0% Notes into an aggregate of 2,156,083 shares
of the Company's common stock. The conversion of these shares has been recorded
in stockholders' equity at $53.79 million, the net carrying value of the 6.0%
Notes based on the $55.25 million outstanding principal amount thereof on the
conversion date and $1.46 million related debt issuance costs.
7. CAPITAL COMMITMENTS -
The Company has committed to build nine vessels over the next two years for an
aggregate capital expenditure of approximately $74.25 million and has total
commitments for vessel construction and vessel upgrades of $78.8 million. Of
these amounts, approximately $8.4 million has been funded to date by the
Company. The Company intends to receive approximately $9.4 million from
Transportation Maritima Mexicana ("TMM"), pursuant to a Memorandum of
Understanding dated September 25, 1996 between TMM and the Company, in exchange
for a minority interest in three vessels under construction.
F-34
<PAGE>
8. SUBSEQUENT EVENTS -
SMIT TRANSACTION
On October 14, 1996, the Company signed a letter of intent (the "Smit Letter of
Intent") providing for the contemplated acquisition of certain of the offshore
vessel assets and joint venture interests owned by Smit Internationale N.V. and
its affiliated companies ("Smit") for a purchase price of (i) approximately
$140.2 million of consideration payable at closing, consisting of $84.0 million
in cash, 712,000 shares of the Company's common stock (which, based on the
closing sale price of the Company's common stock on the Nasdaq Stock Market's
National Market on October 11, 1996, had a value of approximately $35.2 million)
and an amount of the Company's convertible subordinated notes (which the Company
expects will have payment, conversion and other terms substantially similar to
the Notes as defined and described below under the caption "5-3/8% Convertible
Subordinated Notes Offering") having a value of $21.0 million at the time of
issuance and (ii) up to $50.0 million of additional consideration (payable to
Smit in fiscal 1999 in the form of cash and debt securities of the Company)
determined by and conditioned upon the earnings performance of the assets
acquired from Smit exceeding certain threshold amounts (the "Smit Transaction").
Based on vessel ownership and fleet information received from Smit, which the
Company has not independently verified to date, the Company intends to acquire
from Smit 14 anchor handling vessels and 12 towing supply vessels, and Smit's
joint venture interests in 9 anchor handling vessels, 13 towing supply vessels,
and one maintenance vessel.
The Smit Transaction, which is intended to be consummated on or before December
31, 1996, is subject to the completion of due diligence, the negotiation and
execution of definitive transaction documentation, and the receipt of requisite
foreign and domestic regulatory approvals (including early termination or
expiration of the applicable waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and compliance
with certain domestic and foreign regulatory procedures). The terms of the Smit
Transaction are preliminary in nature and there can be no assurance that any
definitive documentation will be entered into or, if entered into, that the Smit
Transaction will be consummated. If the Smit Transaction Is consummated, the
Company may use up to $84.0 million of the net proceeds from its recent sale of
the Notes to pay the cash consideration in such transaction.
COMMON STOCK LISTING ON NYSE
On October 23, 1996, the Company's common stock commenced trading on the New
York Stock Exchange, Inc. under the trading symbol "CKH." From December 1992
until October 23, 1996, the Company's common stock was traded on the Nasdaq
Stock Market's National Market under the trading symbol "CKOR."
GALAXIE TRANSACTION
On October 24, 1996, the Company signed a letter of intent (the "Galaxie Letter
of Intent") providing for the contemplated acquisition of substantially all the
offshore marine assets, including 24 vessels, owned by Galaxie Marine Services,
Inc., Moonmaid Marine, Inc., Waveland Marine Services, Inc. and Triangle Marine,
Inc. (collectively, "Galaxie"), for approximately $21.0 million, including $18.2
million in cash and 50,000 shares of the Company's common stock (which, based on
the closing price of the Company's common stock on the New York Stock Exchange,
Inc. on October 26, 1996, had a value of approximately $2.8 million) (the
"Galaxie Transaction"). The assets proposed to be acquired include three supply
vessels (including one supply vessel under construction), five crew vessels, 17
utility vessels and other related tangible and intangible assets. In addition,
the Galaxie Letter of Intent contemplates that the Company will lease from
Galaxie, for an initial five-year term following the closing (subject to
renewal), Galaxie's waterfront and warehouse facilities in Patterson, Louisiana.
The acquisition, which is intended to be consummated in January 1997, is subject
to the completion of due
F-35
<PAGE>
diligence, the negotiation and execution of definitive transaction
documentation, and the receipt of requisite regulatory approvals (including
early termination or expiration of the applicable waiting period under the HSR
Act and approvals from the U.S. Maritime Administration). The terms of the
Galaxie Transaction are preliminary in nature and there can be no assurance that
any definitive documentation will be entered into or, if entered into, that the
Galaxie Transaction will be consummated. If the Galaxie Transaction is
consummated, the Company may use up to $18.2 million of the net proceeds from
its recent sale of the Notes to pay the cash consideration in such transaction.
5-3/8% CONVERTIBLE SUBORDINATED NOTES OFFERING
On November 5, 1996, the Company completed the sale of $172.5 million aggregate
principal amount of its 5- 3/8% Convertible Subordinated Notes due November 15,
2006 (the "Notes"). The Notes are convertible, in whole or in part, at the
option of the holder at any time from and after January 5, 1997 and prior to the
close of business on the business day next preceding November 15, 2006, unless
previously redeemed, into shares of the Company's common stock at a conversion
price of $66.00 per share (equivalent to a conversion rate of 15.1515 shares of
the Company's common stock per $1,000 principal amount of Notes), subject to
adjustment in certain circumstances. The Notes are redeemable at the Company's
option at any time from and after November 24, 1999 at the redemption prices
specified therein, together with accrued and unpaid interest to the date of
repurchase. Moreover, if a "Change-in-Control" (as defined in the Indenture for
the Notes) of the Company were to occur, the holder of Notes would be entitled
to require the Company to repurchase its Notes, in whole or in part, at a
purchase price equal to 100% of the principal amount thereof, together with
accrued and unpaid interest through the date of repurchase. No sinking fund is
provided for the Notes; which are general unsecured obligations of the Company,
subordinated in right of payment to all "Senior Indebtedness" (as defined in the
Indenture for the Notes) of the Company and effectively subordinated in right of
payment to all indebtedness of the Company's subsidiaries.
The Notes were sold by the Company to CS First Boston Corporation, Salomon
Brothers Inc and Wasserstein Perella Securities, Inc., as initial purchasers
(the "Initial Purchasers"), in an unregistered private placement conducted
pursuant to Section 4(2) of the Securities Act of 1933, as amended (the
"Securities Act"). The discount to the Initial Purchasers was 2.25% per $100
principal amount of Notes (or an aggregate of approximately $3.88 million). The
Initial Purchasers subsequently resold the Notes in the United States to
"qualified institutional buyers" in reliance on Rule 144A under the Securities
Act and to a limited number of institutional "accredited investors" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act), and outside of the
United States in offshore transactions to investors in reliance on Regulation S
under the Securities Act. Approximately $148.88 million principal amount of the
Notes were resold by the Initial Purchasers to qualified institutional buyers in
reliance on Rule 144A, approximately $3.27 million principal amount of the Notes
were resold by the Initial Purchasers to institutional accredited investors, and
approximately $22.35 million principal amount of the Notes were resold by the
Initial Purchasers in offshore transactions to investors in reliance on
Regulation S under the Securities Act.
The net proceeds to the Company from the sale of the Notes to the Initial
Purchasers was approximately $168.3 million (after the deduction of certain
transaction expenses paid by the Company). The Company intends to use such net
proceeds to fund its capital expansion program, including the construction of
new vessels (described above under the caption "Capital Commitments"), and for
general corporate purposes, including acquisitions.
F-36
<PAGE>
VESSEL ACQUISITION
Subsequent to September 30, 1996, the Company acquired one vessel from CNN for a
purchase price of $2.65 million in cash that was provided from the Company's
existing cash balances. The vessel was acquired pursuant to the terms of an
agreement entered into by the Company and CNN in June 1996, see Note 5.
F-37
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY ANY SECURITY OTHER THAN THE SHARES OF
COMMON STOCK OFFERED HEREBY, NOR DOES IT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF ANY OFFER TO BUY SHARES OF COMMON STOCK BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED, OR IN WHICH
THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO
ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT INFORMATION CONTAINED HEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
PAGE
Available Information........................................................2
Incorporation of Certain Information
by Reference...............................................................3
Summary......................................................................4
Risk Factors.................................................................8
Use of Proceeds.............................................................13
Dividend Policy.............................................................13
Selected Historical Financial
Information ..............................................................14
Selling Stockholders........................................................16
Plan of Distribution........................................................19
Legal Matters...............................................................20
Experts.....................................................................20
Index to Financial
Statements...............................................................F-1
SEACOR HOLDINGS, INC.
790,736 SHARES
Common Stock
PROSPECTUS
__________ __, 1997
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The table below sets forth the expenses expected to be incurred and borne
solely by the Company in connection with the registration of the shares of
Common Stock offered hereby.(1)
SEC Registration Fee...............................................$13,988.84
Legal Fees and Expenses............................................ 50,000.00
Blue Sky Fees and Expenses......................................... 5,000.00
Miscellaneous...................................................... 6,011.16
----------
Total................................................ $75,000
==========
- ------------------
(1) The Selling Stockholders have not paid any portion of the registration
expenses.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As more fully described below, Section 145 of the DGCL permits
Delaware corporations to indemnify each of their present and former directors or
officers under certain circumstances, provided that such persons acted in good
faith and in a manner which they reasonably believed to be in, or not opposed
to, the best interests of the corporation. Article Eight of the By-laws provides
that the Company shall indemnify, to the fullest extent permitted by Section 145
of the DGCL, as the same may be amended from time to time, all persons whom it
may indemnify pursuant thereto.
Specifically, Section 145 of the DGCL provides that a corporation
may 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. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, or, with respect to any criminal action or proceeding, that he had
reasonable cause to believe that his conduct was unlawful.
Section 145 of the DGCL also provides that a corporation may
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 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 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) actually and reasonably incurred by him in
connection with the defense
II-1
<PAGE>
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 and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged 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 adjudication 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.
Any such indemnification (unless ordered by a court) shall be made
by the corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because such person has met the applicable standard of conduct
set forth above.
Section 145 of the DGCL permits a Delaware business corporation to
purchase and maintain insurance on behalf of any person who 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 any liability asserted against such person 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 such person.
Section 102(b) of the DGCL enables a Delaware corporation to
include a provision in its certificate of incorporation limiting a director's
liability to the corporation or its stockholders for monetary damages for
breaches of fiduciary duty as a director. The Certificate of Incorporation
contains provisions that limit the personal liability of each director to the
Registrant or its stockholders for monetary damages for breach of the fiduciary
duty of care as a director. These provisions eliminate personal liability to the
fullest extent permitted by the DGCL.
ITEM 16. EXHIBITS AND FINANCIAL SCHEDULES
(a) Exhibits
<TABLE>
<S> <C>
2.0 Asset Purchase Agreement, dated as of December 19, 1996, by and among
SEACOR Holdings, Inc. and certain of its subsidiaries, and Smit
Internationale N.V. and certain of its subsidiaries (incorporated
herein by reference to Exhibit 2.0 to the Company's Current Report on
Form 8-K dated December 19, 1996 and filed with the Commission on
December 24, 1996).
2.1 Purchase Agreement, dated as of December 3, 1996, among SEACOR Holdings, Inc., Acadian
Offshore Services, Inc., Galaxie Marine Service, Inc., Moonmaid Marine, Inc., Triangle
Marine, Inc., F.C. Felterman, Ernest Felterman, D. Lee Felterman and Daniel C. Felterman.*
2.2 Purchase Agreement, dated as of December 3, 1996, among SEACOR Holdings, Inc.,
Waveland Marine Service, Inc., F.C. Felterman, Ernest Felterman, D. Lee Felterman and
Daniel C. Felterman.*
4.0 Amended and Restated Stockholders' Agreement, dated December 16, 1992, by and among the
Company and the stockholders party thereto (incorporated herein by reference to Exhibit 10.12
of the Company's Registration Statement on Form S-1 (No. 33-53744) filed with the
Commission on November 10, 1992, as amended).
4.1 Investment and Registration Rights Agreement, dated as of March 14,
1995, by and among SEACOR Holdings, Inc., Miller Family Holdings,
Inc., Charles Fabrikant, Mark Miller, Donald Toenshoff, Alvin Wood,
Granville Conway and Michael Gellert (incorporated herein by reference
to Exhibit 4.0 of the Company's Current Report on Form 8-K dated March
14, 1995, as amended).
II-2
<PAGE>
4.2 Investment and Registration Rights Agreement, dated as of May 31,
1996, among SEACOR Holdings, Inc. and the persons listed on the
signature pages thereto (incorporated herein by reference to Exhibit
10.8 to the Company's Current Report on Form 8-K dated May 31, 1996
and filed with the Commission on June 7, 1996).
4.3 Indenture, dated as of November 1, 1996, between First Trust National
Association, as trustee, and SEACOR Holdings, Inc. (including therein
forms of 5-3/8% Convertible Subordinated Notes due November 15, 2006
of SEACOR Holdings, Inc.) (incorporated herein by reference to Exhibit
4.0 to the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1996 and filed with the Commission on
November 14, 1996).
4.4 Registration Rights Agreement, dated November 5, 1996, between SEACOR
Holdings, Inc. and Credit Suisse First Boston Corporation, Salomon Brothers Inc
and Wasserstein Perella Securities, Inc. (incorporated herein by
reference to Exhibit 4.1 to the Company's Quarterly Report on Form
10-Q for the fiscal quarter ended September 30, 1996 and filed with
the Commission on November 14, 1996).
4.5 Investment and Registration Rights Agreement, dated as of December 19, 1996, by and
between SEACOR Holdings, Inc. and Smit International Overseas B.V. (incorporated herein by
reference to Exhibit 4.0 to the Company's Current Report on Form 8-K dated December 19,
1996 and filed with the Commission on December 24, 1996).
4.6 Investment and Registration Rights Agreement, dated as of January 3, 1997, among SEACOR
Holdings, Inc., Acadian Offshore Services, Inc., Galaxie Marine Service, Inc., Moonmaid
Marine, Inc. and Triangle Marine, Inc.*
5.0 Opinion of Weil, Gotshal & Manges LLP.*
23.0 Consent of Arthur Andersen LLP.*
23.1 Consent of Coopers & Lybrand L.L.P.*
23.2 Consent of Weil, Gotshal & Manges LLP (included in its opinion filed as Exhibit 5.1).*
24.0 Powers of Attorney.*
</TABLE>
- -----------------
* Filed herewith.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (the "Securities Act"), each such
post-effective amendment 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
II-3
<PAGE>
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, of 1934, as amended (the
"Exchange Act"), each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the registration
statement 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.
(h) Insofar as indemnification for liabilities arising under the Securities Act
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 Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on January 31, 1997.
SEACOR HOLDINGS, INC.
By: /s/ Randall Blank
------------------------------
Randall Blank
Executive Vice President,
Chief Financial Officer
and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below on this Registration Statement hereby constitutes and appoints Charles
Fabrikant and Randall Blank and each of them, with full power to act without the
other, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution for him and in his name, place and stead, in any
and all capacities (until revoked in writing), to sign any and all amendments or
supplements (including post-effective amendments thereto) to this Form S-3
Registration Statement of SEACOR Holdings, Inc. and any registration statement
filed pursuant to Rule 462 and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto each said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite and necessary
fully to all intents and purposes as he might or could do in person, thereby
ratifying and confirming all that each of said attorneys-in-fact and agents, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
/s/ Charles Fabrikant Chairman of the Board of January 31, 1997
- ------------------------ Directors, President and
Charles Fabrikant Chief Executive Officer
/s/ Randall Blank Executive Vice President, January 31, 1997
- ------------------------ Chief Financial Officer
Randall Blank and Secretary (Principal
Financial Officer)
/s/ Granville E. Conway Director January 31, 1997
- ------------------------
Granville E. Conway
/s/ Michael E. Gellert Director January 31, 1997
- ------------------------
Michael E. Gellert
/s/ Robert J. Pierot Director January 31, 1997
- ------------------------
Robert J. Pierot
/s/ Stephen Stamas Director January 31, 1997
- ------------------------
Stephen Stamas
II-5
<PAGE>
Director
- ----------------------------
Richard M. Fairbanks III
/s/ Pierre de Demandolx Director January 31, 1997
- ----------------------------
Pierre de Demandolx
/s/ Lenny P. Dantin Vice President and January 31, 1997
- ---------------------------- Treasurer (Principal
Lenny P. Dantin Accounting Officer
and Controller)
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
2.0 Asset Purchase Agreement, dated as of December 19, 1996, by and among
SEACOR Holdings, Inc. and certain of its subsidiaries, and Smit
Internationale N.V. and certain of its subsidiaries (incorporated
herein by reference to Exhibit 2.0 to the Company's Current Report on
Form 8-K dated December 19, 1996 and filed with the Commission on
December 24, 1996).
2.1 Purchase Agreement, dated as of December 3, 1996, among SEACOR Holdings, Inc., Acadian
Offshore Services, Inc., Galaxie Marine Service, Inc., Moonmaid Marine, Inc., Triangle
Marine, Inc., F.C. Felterman, Ernest Felterman, D. Lee Felterman and Daniel C. Felterman.*
2.2 Purchase Agreement, dated as of December 3, 1996, among SEACOR Holdings, Inc.,
Waveland Marine Service, Inc., F.C. Felterman, Ernest Felterman, D. Lee Felterman and
Daniel C. Felterman.*
4.0 Amended and Restated Stockholders' Agreement, dated December 16, 1992, by and among the
Company and the stockholders party thereto (incorporated herein by reference to Exhibit 10.12
of the Company's Registration Statement on Form S-1 (No. 33-53744) filed with the
Commission on November 10, 1992, as amended).
4.1 Investment and Registration Rights Agreement, dated as of March 14,
1995, by and among SEACOR Holdings, Inc., Miller Family Holdings,
Inc., Charles Fabrikant, Mark Miller, Donald Toenshoff, Alvin Wood,
Granville Conway and Michael Gellert (incorporated herein by reference
to Exhibit 4.0 of the Company's Current Report on Form 8-K dated March
14, 1995, as amended).
4.2 Investment and Registration Rights Agreement, dated as of May 31,
1996, among SEACOR Holdings, Inc. and the persons listed on the
signature pages thereto (incorporated herein by reference to Exhibit
10.8 to the Company's Current Report on Form 8-K dated May 31, 1996
and filed with the Commission on June 7, 1996).
4.3 Indenture, dated as of November 1, 1996, between First Trust National
Association, as trustee, and SEACOR Holdings, Inc. (including therein
forms of 5-3/8% Convertible Subordinated Notes due November 15, 2006
of SEACOR Holdings, Inc.) (incorporated herein by reference to Exhibit
4.0 to the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1996 and filed with the Commission on
November 14, 1996).
4.4 Registration Rights Agreement, dated November 5, 1996, between SEACOR
Holdings, Inc. and Credit Suisse First Boston Corporation, Salomon Brothers Inc
and Wasserstein Perella Securities, Inc. (incorporated herein by
reference to Exhibit 4.1 to the Company's Quarterly Report on Form
10-Q for the fiscal quarter ended September 30, 1996 and filed with
the Commission on November 14, 1996).
4.5 Investment and Registration Rights Agreement, dated as of December 19, 1996, by and
between SEACOR Holdings, Inc. and Smit International Overseas B.V. (incorporated herein by
reference to Exhibit 4.0 to the Company's Current Report on Form 8-K dated December 19,
1996 and filed with the Commission on December 24, 1996).
4.6 Investment and Registration Rights Agreement, dated as of January 3, 1997, among SEACOR
Holdings, Inc., Acadian Offshore Services, Inc., Galaxie Marine Service, Inc., Moonmaid
Marine, Inc. and Triangle Marine, Inc.*
5.0 Opinion of Weil, Gotshal & Manges LLP.*
23.0 Consent of Arthur Andersen LLP.*
23.1 Consent of Coopers & Lybrand L.L.P.*
23.2 Consent of Weil, Gotshal & Manges LLP (included in its opinion filed as Exhibit 5.1).*
24.0 Powers of Attorney.*
</TABLE>
- -----------------
* Filed herewith.
II-7
PURCHASE AGREEMENT
AGREEMENT OF PURCHASE AND SALE dated as of December 3, 1996,
among (A) ACADIAN OFFSHORE SERVICES, INC., a Louisiana corporation
("Purchaser"), (B) SEACOR HOLDINGS, INC., a Delaware corporation
("SEACOR Holdings"), (C) GALAXIE MARINE SERVICE, INC., a Louisiana
corporation ("Galaxie"), MOONMAID MARINE, INC., a Louisiana
corporation ("Moonmaid"), and TRIANGLE MARINE, INC., a Louisiana
corporation ("Triangle") (Galaxie, Moonmaid, and Triangle are herein
sometimes individually called a Seller and collectively called the
"Sellers"), and (D) F.C. Felterman, Ernest Felterman, D. Lee
Felterman, and Daniel C. Felterman (each individually a Stockholder
and collectively the "Stockholders").
1. SALE OF ASSETS AND BUSINESS OF THE SELLERS.
(a) Upon the terms and subject to the provisions of Section
7(f) hereof and subject to the other provisions set forth in this
Agreement, the Sellers will sell, convey, assign, transfer and deliver
to Purchaser, and Purchaser will purchase from the Sellers, all the
assets set forth in Schedule 1.1 hereto (such assets, excluding the
"Excluded Assets" (as hereinafter defined), being hereinafter called
the "Purchased Assets"). The Purchased Assets include, without
limitation, those assets referred to and listed in Schedules 1.1, 2.1,
3.1, 7.1, 7.2, 7.3, and 9.7 (except for the names of "Galaxie,"
"Moonmaid," and "Triangle," and the logo of Galaxie).
<PAGE>
(b) Anything hereinabove contained to the contrary
notwithstanding, the Purchased Assets shall not include any assets of
the Sellers not listed on one of the aforementioned Schedules,
including the following (hereinafter collectively called the "Excluded
Assets"):
(i) cash on hand and cash equivalents;
(ii) cash value of life insurance;
(iii) accounts and notes receivable;
(iv) prepaid expenses, utility and similar deposits;
(v) any insurance policies;
(vi) any capital construction fund accounts; and
(vii) any interest in real property.
(c) After the Closing, all books and records of Sellers
related to the Purchased Assets shall be maintained at the office
building to be leased by Purchaser pursuant to this Agreement (the
"Office Building") and shall be available at all times for inspection
and copying by officers, attorneys, accountants and other authorized
representatives of Purchaser. If Sellers shall desire to dispose of
any such books and records (which they shall have the right to do
after the expiration of six years after the Closing Date) or remove
any such books and records from the Office Building, Sellers shall,
before making such disposition or so removing such books and records,
give Purchaser a reasonable opportunity, at Purchaser s cost and
expense, to copy such books and records as it may select.
<PAGE>
2. PURCHASE PRICE, PAYMENT, ALLOCATION, RISK OF LOSS.
(a) Upon the terms and subject to the conditions set forth
in this Agreement, Purchaser will pay to Sellers at the closing on the
Closing Date, subject to the provisions of Section 7(c) hereof, as the
aggregate purchase price for the Purchased Assets listed on Schedule
1.1 hereof, cash in the amount of $2,812,500 (which shall be paid by
wire transfer received before the close of banking business on the
Closing Date to an account or accounts designated by Sellers to
Purchaser in writing prior to the Closing Date), and 50,000 shares of
the common stock, $0.01 par value (the "Common Stock"), of SEACOR
Holdings (subject to adjustment in the event of any stock split, stock
dividend, or similar transaction affecting the outstanding SEACOR
Holdings common stock from the date hereof until the Closing Date),
allocated among each of the Sellers according to the provisions of
Section 2(b) hereof and subject to adjustment, credit and reserves as
follows:
(i) the purchase price shall be increased by the fair
market value, as determined by a physical audit or
inventory to be conducted jointly by Purchaser and
Sellers on or before December 31, 1996, of those
assets that are not on Sellers books but that
Purchaser believes will be necessary to operate
the business of Sellers, including engine parts,
supplies and spares (other than the spares carried
aboard the Vessels), vehicles, heavy equipment,
and other equipment. At the Closing, a list of
the assets of Sellers to be
<PAGE>
acquired pursuant to this Section 2(a)(i) and a
statement of the fair market value of those assets
shall be attached as an exhibit to a letter
substantially in the form of Schedule 2.1 hereto,
which letter shall be signed by authorized
representatives of the Purchaser and the Sellers,
affirming the parties agreement to the results of
the joint inventory; provided that, the purchase
-------- ----
price shall be further adjusted on the Closing
Date to account for any reduction or increase in
the above inventory (except for replacement with
comparable, serviceable parts) after the
completion of the physical audit;
(ii) the purchase price shall be adjusted for certain
events of loss as provided in Section 2(c) hereof;
and
(iii) the fifty thousand dollars ($50,000) earnest
money deposit made by Purchaser to Sellers
shall be credited against payment of the
aggregate purchase price.
In addition, as to all personal property taxes which have actually
been prepaid by Sellers, the Purchaser shall reimburse each Seller on
the Closing Date for all such prepaid property taxes, prorated from
the Closing Date to reflect the fact that Purchaser shall be
responsible for such taxes from and as of the Closing Date and Sellers
shall be responsible for such taxes to the
<PAGE>
Closing Date. Purchaser shall be responsible for all sales, use, and
ad valorem taxes arising as a consequence of the purchase of the
Purchased Assets.
(b) The Purchaser and Sellers have agreed upon the
allocation of the purchase price to the various assets included in the
Purchased Assets, as set forth in Schedules 1.1 and 2.1 hereto.
Subject to the adjustments, credit and reserves provided in Section
2(a) hereof, Purchaser will make payments to each Seller for the
Purchased Assets being sold by it as set forth in said Schedules.
(c) As of and after the time at which the transactions
contemplated by this Agreement are consummated (the "Closing"), risk
of loss of the Purchased Assets purchased by Purchaser shall be borne
by Purchaser. Prior to the Closing, risk of loss of the Purchased
Assets shall be borne by Sellers. In the event of an actual,
constructive, agreed or compromised total loss ("Total Loss") of any
Purchased Asset prior to the Closing, the purchase price shall be
reduced by the allocated purchase price of the asset so lost as set
forth in Schedule 1.1 hereto, which Schedule 1.1 shall be conclusive
for the purposes of allocating purchase price in the event of a Total
Loss, and a pro rata portion of the value of the goodwill of the
Sellers. In such event, all insurance proceeds in connection with
such casualty shall be for the sole account of Sellers, and Purchaser
shall have no claim whatsoever to same. The purchase price shall not
be reduced in the event any of the Purchased Assets sustains a loss or
other casualty other than a Total Loss prior to the Closing, it being
understood and agreed that the sale and purchase of the Purchased
Assets shall be, except as otherwise set forth in this
<PAGE>
Agreement, on an as is, where is basis at the time of inspection of
such assets (as set forth on Schedule 10.1 hereto), subsequent
ordinary wear and tear excepted. However, in the event of a loss of
or casualty to a Purchased Asset other than a Total Loss prior to the
Closing, the Seller of such asset agrees to arrange and pay for any
repair to such asset, or if appropriate and with the consent of
Purchaser, assign to Purchaser any claim relating to such asset under
such Seller s insurance policies, any insurance proceeds received by
or owed to such Seller on account of such asset, and any other claim
or cause of action relating to such asset, together with funds
sufficient to cover any self-insured or deductible amount payable in
connection with such casualty or loss. Purchaser shall have the
opportunity to make a full investigation of each Purchased Asset prior
to the Closing Date, and Purchaser accepts title to the Purchased
Assets without any warranty on the part of Sellers as to fitness for
any intended purpose, merchantability, or condition except as
otherwise provided herein.
3. ASSUMPTION OF CERTAIN CONTRACTS AND INDEMNITIES.
(a) Upon the terms and subject to the conditions set forth
in this Agreement, Purchaser will assume on the Closing Date by
appropriate instruments and will pay, perform and discharge, or cause
to be paid, performed and discharged, only such debts, obligations,
contracts and liabilities of each of the Sellers incurred up to and
including the Closing Date (A) arising under uncompleted orders
entered into by such Seller for the purchase of materials, supplies
and equipment for the requirements of the Sellers business in the
ordinary course and which are ordinarily expended, (B) arising under
such contracts, leases, plans and other
<PAGE>
commitments set forth in Schedule 3.1 hereto, and (C) arising under
contracts the assignments of which are subject to the provisions of
Section 7(f) hereof, but only to the extent that, under the terms of
any such completed orders or other instruments referred to in (A), (B)
and (C), payment or performance by Sellers under the terms thereof is
required after (and not prior to) the Closing Date (such assumed
obligations to the extent so assumed, being hereinafter referred to
collectively as the "Assumed Liabilities"). Sellers shall be fully
indemnified by Purchaser against any such Assumed Liabilities in
accordance with the provisions of Section 15 of this Agreement. It is
expressly understood and agreed that, except for the Assumed
Liabilities, Purchaser has not agreed to and shall not assume any
other debts, obligations, contracts, or liabilities of any of the
Sellers (the "Retained Liabilities"), including but not limited to,
any of the following:
(i) any obligations or liabilities of Sellers under
this Agreement;
(ii) any debts, obligations, contracts or liabilities
for expenses, taxes and fees incident to the
preparation of this Agreement or the consummation
of the transactions contemplated hereby (other
than as provided elsewhere in this Agreement)
including, without limitation, all counsel and
special auditing fees and brokerage commissions,
if any;
<PAGE>
(iii) any debts, obligations, contracts or
liabilities in respect of taxes, and reserves
for deferred taxes, in each case relating
only to periods ending on or before the
Closing Date;
(iv) any Environmental Costs and Liabilities (as that
term is defined in Section 9) of Sellers or any
predecessors or affiliated companies of Sellers
resulting from, caused by, or arising out of,
directly or indirectly, the conduct of the
business of the Sellers or the Sellers ownership,
operation, or lease of any properties or assets or
any assets previously used in the business by
Sellers or any predecessor or affiliated companies
of Sellers at any time prior to or on the Closing
Date, provided that, nothing herein is intended to
-------- ----
affect any rights that Sellers may have against
any predecessor of Sellers;
(v) any and all liabilities and obligations of Sellers
arising from or relating to the employment or
termination of employment of any person with
respect to the business on or prior to the Closing
Date;
(vi) any liability or obligation of Sellers arising
under or in respect of any agreements,
undertakings or commitments to the extent that
<PAGE>
payment or performance thereof is required, by the
terms thereof, prior to the Closing Date;
(vii) any liabilities of the business of the
Sellers relating to the Purchased Assets or
arising out of the operation of Sellers
business prior to the Closing Date; and
(viii) any debt, contract, liability, or obligation
of any Seller not expressly assumed by
Purchaser pursuant to this Section 3 and any
matter not to be assumed as expressly set
forth in any of the Schedules hereto.
(b) All debts, obligations, contracts and liabilities of
the Sellers not specifically assumed by the Purchaser pursuant to the
first sentence of Section 3(a) hereof shall remain the sole
responsibility of the Sellers, and Purchaser shall be fully
indemnified against such debts, obligations, contracts, and
liabilities by Sellers in accordance with the provisions of Section 15
of this Agreement.
4. ALTERNATE FORMS OF TRANSACTION; GUARANTEE.
(a) Purchaser may elect, by written notice to Sellers prior
to the Closing Date, to effect the purchase of assets and assumption
of obligations as contemplated by this Agreement through one or more
direct or indirect subsidiaries (either presently existing or
established for that purpose) of SEACOR Holdings, the parent of
Purchaser. In such event,
<PAGE>
any transfers to and assumptions by the Purchaser contemplated hereby
shall, to the extent specified in such election, be made to and by
such subsidiaries.
(b) In the event of an election pursuant to paragraph (a)
above, the provisions of this Agreement shall be deemed to be amended
to the extent necessary to permit the carrying out of such election.
(c) SEACOR Holdings consents, acknowledges, and agrees that
50,000 shares of its common stock, $0.01 par value, are included as
part of the purchase price of the Purchased Assets. Notwithstanding
any election or lack of election made pursuant to this Section 4,
SEACOR Holdings agrees to guarantee the obligations of the Purchaser
to Sellers with respect to the delivery of the Common Stock as
provided in Section 2(a) hereof, and SEACOR Holdings further agrees to
guarantee the indemnification obligations of the Purchaser to Sellers
pursuant to Section 15 hereof; provided, however, that, Sellers shall
-----------------------
not seek to enforce either of the above guarantees of SEACOR Holdings
unless and until Sellers have first sought performance of those
obligations from Purchaser and Purchaser shall have refused or been
unable to fulfill those obligations.
5. ACCESS TO PLANTS, PROPERTIES AND RECORDS.
(a) From and after the date of this Agreement, Sellers
shall afford to the Purchaser and its officers, attorneys,
accountants, environmental consultants, and other authorized
representatives of Purchaser reasonable access to all offices, plants,
properties, equipment, files, contracts, agreements, books of account,
tax returns of Sellers, and other
<PAGE>
books and records of Sellers in order that Purchaser may have the
opportunity to make such further investigation as it shall desire to
make of the affairs of Sellers, and Purchaser shall be permitted to
make extracts from, or copies of, such books and records; and Sellers
shall furnish or cause to be furnished to Purchaser such financial and
operating data and other information as to the businesses and
properties of Sellers, including, but not limited to, current
operating information, financial statements, capital budgets,
management forecasts, ledgers, marketing reports, customer
sales/revenue breakdowns, compensation levels of all employees and
employment agreements, personnel files and records, vessel charter
contracts, and basic and master agreements and owner operating
agreements as Purchaser shall reasonably request. Notwithstanding the
foregoing, Sellers shall not be obliged to provide access to Purchaser
to any contracts which they are contractually bound to keep
confidential, provided that Sellers shall inform Purchaser as to the
existence of such contractual requirement and shall use best efforts
to obtain a release from the same for the benefit of Purchaser. If
the transactions contemplated by this Agreement shall, for any reason,
not be consummated, then Purchaser will treat as confidential all
information received from Sellers pursuant to this Section 5 or
otherwise and will return to Sellers all documents received or copies
made by Purchaser in accordance herewith.
(b) The Sellers agree to replace or repair spare parts
customarily carried aboard the Vessels which are taken out of spare
and used as a replacement on any Vessel prior to delivery of such
Vessel to Purchaser hereunder. The Sellers and Purchaser agree to
conduct
<PAGE>
a joint inventory of all engine parts, supplies and spares (other than
spares customarily carried aboard the Vessels), vehicles, heavy
equipment, and other equipment that Purchaser intends to acquire from
Sellers, which joint inventory shall be completed by December 31,
1996. The results of the aforesaid joint inventory shall be set forth
on Schedule 2.1 and shall be used to make the adjustment to the
purchase price called for in Section 2(a)(i) hereof.
6. CLOSING DATE.
The purchase and sale provided for in this Agreement shall take
place at the offices of Phelps Dunbar, L.L.P., counsel for Sellers, at
10:00 a.m., Central time, on January 3, 1997 (such time and date being
herein called the Closing Date), or such earlier date as the parties
may mutually agree. Notwithstanding the foregoing, the Closing Date
may be postponed to 10:00 a.m., Central time, on a date on or before
January 31, 1997, at the request of Purchaser if Purchaser is unable
to comply by the Closing Date with any of the conditions referred to
in Section 12 or 13 hereof, as the case may be, or at the request of
Sellers if they are, after the exercise of best efforts, unable, by
January 3, 1997, to obtain the consent of the Maritime Administration
to the sale of any Vessels that are subject to restrictions under a
Capital Construction Fund, which are conditions precedent to the
obligation of the other parties to close the transaction (unless such
conditions are waived by such other parties).
7. INSTRUMENTS OF TRANSFER, ETC.
(a) Subject to the provisions of Section 7(c) hereof, the
sale and transfer of the Purchased Assets shall be made at Purchaser s
expense (except as otherwise provided in
<PAGE>
this Agreement) on the Closing Date by bills of sale, assignments and
other instruments of conveyance and transfer as shall be appropriate
to carry out the intent of this Agreement and as shall be sufficient
to convey to Purchaser all the right, title and interest of Sellers
to, and the right to full custody and control of, the Purchased
Assets, free and clear of any and all liens, charges, mortgages,
encumbrances and security interests whatsoever. All sales, use, and
ad valorem taxes and all filing and recording fees in connection with
such instruments of transfer shall be borne by Purchaser. In the case
of assignment of any right, contract, license, lease or other
instrument requiring the consent of another party thereto, Sellers
will use their best efforts to obtain such consent prior to the
Closing Date, subject to the provisions of Section 7(f) hereof.
(i) Without limiting the generality of the foregoing,
each Seller shall deliver the documents described
below, more specifically described and enumerated
in Schedules 7.1 (Galaxie), 7.2 (Moonmaid), and
7.3 (Triangle) hereto:
A. Customary bills of sale in recordable form,
transferring ownership of the Vessels owned
by it, including all appurtenances, stores,
outfitting, lubes, and fuel on board or on
shore or on order, broached or unbroached,
all navigational aids, and all spares on
board, warranting title to such Vessels, free
and clear of liens, mortgages, rights
<PAGE>
in rem or any other encumbrances whatsoever
-- ---
other than certain trading restrictions as
specified in the respective schedules
attached hereto;
B. Customary forms required to transfer
ownership of the Vehicles owned by it,
warranting title free and clear of liens,
mortgages, security interests or any other
encumbrances whatsoever; and
C. Such other customary bills of sale,
assignments, documents and instruments as
more fully set forth in each respective
Schedule 7.1, 7.2, and 7.3 attached hereto.
(ii) The Sellers shall deliver any and all consents,
including resolutions and shareholder consents,
necessary for the sale and transfer of the
respective Purchased Assets owned by them as
listed on Schedules 7.1, 7.2, and 7.3, and any and
all consents, permits, licenses, and other
authorizations held by Sellers that are necessary
for the continuing use and operation of the
Purchased Assets by the Purchaser as contemplated
hereby.
(b) On the Closing Date, Purchaser will deliver an
instrument substantially in the form of Schedule 7.4 hereto evidencing
its assumption of the obligations being assumed by it hereunder.
<PAGE>
(c) Notwithstanding the foregoing, each Vessel to be
delivered hereunder shall be delivered to Purchaser at the time of
Closing on the Closing Date immediately following the receipt by
Sellers of the funds to be wire transferred by Purchaser pursuant to
Section 2(a) of this Agreement, wherever the Vessel shall then be
located, provided, however, that should such delivery be impossible or
-------- ------- ----
unsafe due to adverse weather conditions or some damage casualty to
the Vessel in question, such delivery shall be delayed until such
adverse weather subsides or such damage casualty is repaired.
Sellers warrant that all of the Vessels are presently documented with
the United States Coast Guard. At the time of Closing, each Vessel
owner shall furnish to counsel for Sellers, viz: Phelps Dunbar,
L.L.P., the original and one copy of a duly executed Bill of Sale on
the standard U.S. Coast Guard form (CG-1340), in recordable form,
which document shall be held in escrow and in trust with respect to
each respective Vessel pending receipt of the cash consideration as
specified in this contract with respect to that Vessel. Phelps Dunbar,
L.L.P., shall, upon receipt by Sellers of the stated consideration
with respect to each such Vessel, be fully authorized to deliver the
documents with respect to that particular Vessel in whatever manner
and fashion and to whomever they deem appropriate. The original
Certificate of Documentation of each Vessel should either be aboard
the Vessel or in the possession of Phelps Dunbar, L.L.P., at the time
of Delivery and each such Certificate of Documentation shall become
the property of Purchaser at the time of Delivery, with the
understanding and agreement that such Certificates of Documentation
will be surrendered to the United States Coast Guard at the time each
Vessel is redocumented in the
<PAGE>
name of Purchaser. In addition, the applicable Seller of each Vessel
shall provide to Purchaser an opinion of counsel for Sellers in form
and substance satisfactory to Purchaser.
(d) On the Closing Date, Sellers will by appropriate
instrument constitute and appoint Purchaser, its successors and
assigns, and its true and lawful attorney or attorneys, with full
power of substitution, in the name of Sellers but on behalf of and for
the benefit of and at the expense of Purchaser, to institute,
prosecute, defend, and compromise any and all actions, suits, or
proceedings in respect of any Purchased Asset, but only if and to the
extent that Sellers do not or cannot, after demand and presentment,
indemnify Purchaser against any occurrence indemnifiable pursuant to
Section 15(b) hereof. The foregoing power is coupled with an interest
and shall be irrevocable by any Seller or by its dissolution or in any
manner or for any reason. Purchaser shall retain for its own account
any amounts collected pursuant to the foregoing powers, including any
sums payable as interest in respect thereof, and Sellers will pay to
Purchaser, when received, any amounts which shall be received by
Sellers in respect of Purchaser's efforts pursuant to this paragraph.
(e) At any time and from time to time after the Closing
Date, Sellers will, upon the request and at the expense of Purchaser
(except as to subsequent deeds as provided in paragraph (c) above),
do, execute, acknowledge and deliver, or will cause to be done,
executed, acknowledged or delivered, all such further acts, deeds,
assignments, transfers, conveyances, powers of attorney or assurances
as may be required for the better assigning, transferring, granting,
conveying, assuring and confirming to Purchaser, or for aiding and
<PAGE>
assisting in the collection of or reducing to possession by Purchaser,
any of the Purchased Assets.
(f) Nothing contained in this Agreement shall be construed
as an attempt to assign (i) any contract which is in law nonassignable
without the consent of the other party or parties thereto unless such
consent shall have been given, or (ii) any contract or claim as to
which all the remedies for the enforcement thereof enjoyed by Sellers
would not, as a matter of law, pass to Purchaser as an incident of the
assignments provided for by this Agreement. In order, however, that
the full value of every contract and claim of the character described
in clauses (i) and (ii) of the preceding sentence and all claims and
demands on such contracts may be realized, each Seller, by itself or
by its agents, will, at the request and expense and under the
direction of Purchaser, in the name of such Seller or otherwise as
Purchaser shall specify and as shall be permitted by law, take all
such actions and do or cause to be done all such things as shall in
the opinion of Purchaser be necessary or proper (x) in order that the
rights and obligations of each respective Seller under such contracts
shall be preserved and (y) for, and to facilitate, the collection of
the moneys due and payable, and to become due and payable, to such
Seller in and under every such contract and claim and in respect of
every such claim and demand, and such Seller shall hold the same for
the benefit of and shall pay the same over to Purchaser. The
foregoing covenant shall survive indefinitely.
<PAGE>
8. OTHER ACTIONS BY THE SELLERS AND THE STOCKHOLDERS.
Sellers agree that, on and as of the Closing Date, Purchaser
and its affiliates shall have the right to use the name Galaxie and
the logo of Galaxie in the marine transportation business, and Sellers
shall deliver to Purchaser on the Closing Date a written statement
addressed to the Secretary of State of the State of Louisiana
authorizing Purchaser and its affiliates to use the name Galaxie and
the logo of Galaxie in the marine transportation business. Sellers
further agree that, so long as Purchaser or its affiliates continue to
use the name Galaxie or the logo of Galaxie commercially in the
marine transportation business, Sellers shall not use the name
Galaxie or the logo of Galaxie in the marine transportation
business. The Purchaser reserves the right to retain the names of all
acquired Vessels.
9. REPRESENTATIONS AND WARRANTIES OF SELLERS.
Each of the Sellers, jointly and severally, hereby represents and
warrants to, and covenants and agrees with, Purchaser, as of the date
hereof and as of the Closing Date, that:
(a) Each of the Sellers is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Louisiana, having its principal place of business and its registered
office at 115 Landry Street, P.O. Box 189, Patterson, Louisiana 70392.
Each of the Sellers has full power and authority to own or hold its
properties and to conduct its business as presently conducted. Each
Seller is licensed or qualified to do business as a foreign
corporation or entity, as the case may be, and in good standing in all
jurisdictions
<PAGE>
wherein (i) it owns or leases property to be leased by Purchaser from
that Seller, or (ii) its failure to be so licensed or qualified would
have a material adverse effect on the Purchased Assets.
(b) The execution and delivery of this Agreement by each
Seller, the performance by each Seller of its covenants and agreements
hereunder and the consummation by each Seller of the transactions
contemplated hereby have been duly authorized by all necessary actions
(corporate and other) of such Seller. This Agreement has been duly
executed and delivered by each of the Sellers and Stockholders and
constitutes a valid and legally binding obligation of each Seller and
Stockholder, enforceable against each Seller and Stockholder in
accordance with its terms.
(c) Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, violates
any provision of the articles of incorporation or by-laws of the
Sellers or any applicable statute, ordinance, regulation, order,
judgment or decree of any court or governmental agency, or conflicts
with or will result in any breach of, or accelerate the performance
required by, any of the terms of or constitute a default under or
result in the termination of or the creation of any lien pursuant to
the terms of any contract or agreement to which any of the Sellers is
a party or by which any of them or any of the Purchased Assets is
bound.
(d) All of the issued and outstanding shares of capital
stock of Galaxie and Moonmaid are owned by one or more of the
Stockholders. Ninety-six percent (96%) of the
<PAGE>
issued and outstanding shares of capital stock of Triangle is owned by
the Stockholders. All of the outstanding shares of capital stock of
each of the Sellers have been validly issued and are fully paid and
non-assessable. There are no subscriptions, warrants, options, calls,
commitments or agreements to which any of those Sellers is bound
relating to the issuance or sale of shares of its capital stock or
other securities.
(e) The Purchased Assets include all of the vessels of
Sellers, along with the related operating assets of Sellers, excluding
real property, used in or related in any way to the offshore service
business of Sellers as presently conducted, and such assets constitute
substantially all of the assets used by Sellers during the last three
fiscal years in the conduct of such business. Each Seller has good
and marketable title to the Purchased Assets owned by it, free and
clear of any defect in title and free and clear of all liens, charges,
encumbrances, mortgages or security interests whatsoever, except as
set forth in Schedules 7.1, 7.2, and 7.3. Each Seller has the right
to sell and transfer its Purchased Assets to Purchaser, and upon
transfer of the Purchased Assets to Purchaser pursuant hereto,
Purchaser will acquire good and marketable title and all of Sellers
right, title, and interest in and to the Purchased Assets, free and
clear of any defect in title and free and clear of all liens, charges,
encumbrances, mortgages, or security interests whatsoever. All of the
Vessels have valid USCG Certificates of Inspection, and the Vessels
designated in Part II of Schedules 7.1, 7.2, and 7.3 as ABS classed,
are in class as provided in said Schedules, free of recommendations.
None of the other Purchased Assets (or the uses to which they are put)
fails to conform with any applicable
<PAGE>
law, ordinance or regulation in a manner which is likely to be
material to the operations of the Sellers business or the continuing
use and operation of those Purchased Assets by the Purchaser as they
have been used by Sellers.
(f) Each of the Sellers delivered to Purchaser its balance
sheet as of December 31, 1995, together with the related statements of
operations, retained earnings and changes in financial position,
including the notes thereto, if any, all for the year then ended,
which audited financial statements have been reported on by
Wegmann-Dazet and Company, the certified public accountants for
Sellers (such financial statements are herein referred to as the
"Financial Statements"). The Financial Statements are true and
correct in all material respects and have been prepared in accordance
with generally accepted accounting principles applied consistently
throughout the periods involved. The Financial Statements fully and
fairly present the financial condition of the Sellers in all material
respects as of the dates thereof and the results of the operations of
Sellers for the periods indicated. The balance sheets constituting a
part of each of the Financial Statements fairly reflects all
liabilities of the Sellers of the types normally reflected in balance
sheets as at the date thereof. True, correct and complete copies of
each of the Financial Statements have been delivered to Purchaser.
(g) Except as set forth in Schedule 9.1 or, as to events
occurring after the date of this Purchase Agreement, in an addendum to
Schedule 9.1 to be filed on the Closing Date, subsequent to September
30, 1996, and, in the case of Purchased Assets, since the date that
Purchaser inspected those Purchased Assets, there has not been any (i)
material adverse
<PAGE>
change or prospective change in the condition of the Sellers,
financial or otherwise, or in the results of its operations; (ii)
material damage or destruction (whether or not insured) affecting the
Purchased Assets or the business operations of Sellers; (iii) labor
dispute or, to the best of the knowledge of any of the Sellers,
threatened labor dispute involving any of the employees of any of the
Sellers; (iv) actual or, to the best of the knowledge of any of the
Sellers, threatened dispute pertaining to the business with any major
supplier or customer of Sellers; or (v) other event or condition of
any character, known to any of the Sellers or which in the exercise of
reasonable diligence should be known to any of them, not disclosed in
this Agreement pertaining to and materially adversely affecting the
business.
(h) Each Seller has filed or caused to be filed all
Federal, state, municipal and other tax returns, reports and
declarations required to be filed by it and, where applicable, has
paid or reserved (as reflected on the balance sheet in accordance with
generally accepted accounting principles) for any and all taxes,
imposts, assessments, levies, or other governmental charges of any
kind whatsoever, including, but not limited to, income, franchise,
sales, use, ad valorem, unemployment, withholding, social security,
worker s compensation and estimated income and franchise taxes
(including any interest, penalty, fine or addition thereto) ("Taxes")
which have been or shall become due with respect to all taxable
periods ending at or prior to the date hereof (and will pay or reserve
(in accordance with generally accepted accounting principles) for all
taxes which shall become due with respect to all taxable periods, or
portion thereof, ending at or prior to the Closing Date). No
deficiency in payment
<PAGE>
of any Taxes for any period, except as listed on Schedule 9.2(a) and
for which scheduled deficiencies the Sellers have set aside adequate
reserves, has been asserted by any taxing authority which remains
unsettled at the date hereof. No Seller has been (or with notice or
lapse of time or both, would be) in violation of any applicable law
relating to the payment or withholding of Taxes. Each Seller has duly
and timely withheld from (x) all employee salaries, wages, and other
compensation and (y) all other payments, and paid over to the
appropriate taxing authorities, all amounts required to be so withheld
and paid over for all periods under all applicable laws. None of the
Purchased Assets is an asset or property that is or will be required
to be treated as being (i) owned by any Person (other than the
Purchaser) pursuant to the provisions of Section 168(f)(8) of the
Internal Revenue Code of 1954, as amended and in effect immediately
before the enactment of the Tax Reform Act of 1986, or (ii) tax-exempt
use property within the meaning of Section 168(h)(1) of the Internal
Revenue Code of 1986, as amended. Set forth in Schedule 9.2(b) is an
itemization of all taxes other than income taxes which are due or
shall become due with respect to all taxable periods ending on or
prior to the Closing Date.
(i) Annexed hereto as Schedule 9.3 is a list of all
policies of liability, theft, environmental liability, fidelity, life,
fire, casualty, hull, marine protection and indemnity and other forms
of insurance held by Sellers and relating to their business
(specifying the type of coverage, insurer, policy number, policy
period and named insured). All such policies are in full force and
effect and all premiums due thereon prior to or on the Closing Date
have been
<PAGE>
paid. Sellers have complied in all material respects with the
provisions of such policies. Sellers have endeavored to place all
policies of insurance held by them with solvent underwriters.
(j) Set forth in Schedule 3.1 are a list and brief
description of (i) all charters, contracts, agreements, licenses,
leases, arrangements (written or oral) and other documents to which
any Seller is a party or by which any Seller or any of its assets is
bound and which are to be assigned to, and assumed by, Purchaser
pursuant to this Agreement; and (ii) obligations and liabilities of
Sellers pursuant to uncompleted orders for the purchase of materials,
supplies, equipment and services for the requirements of the conduct
of business with respect to which the remaining obligation of any of
Sellers is in excess of $5,000 in the aggregate and which are to be
assigned to, and assumed by, Purchaser pursuant to this Agreement
(which Schedule shall be updated as of December 31, 1996, as
appropriate. None of Sellers is in default in the performance of any
covenant or condition under any of the aforementioned contracts and,
to the knowledge of any of the Sellers after reasonable inquiry, no
claim of such a default has been made. To the knowledge of the
Sellers, no other party thereto is in default in the performance of
any covenant or condition under any of the aforementioned agreements.
(k) Set forth in Schedule 9.4(a) is a list of all
agreements between Sellers and the employees of Sellers with regard to
compensation, whether individually or collectively, except oral
agreements terminable by Sellers on not more than 30 days notice
without penalty,
<PAGE>
and set forth in Schedule 9.4(b) attached hereto is a list of all (i)
employees of Sellers and their respective positions, job categories,
years of service, and salaries; and (ii) agents or other
representatives retained or utilized by Sellers and the basis on which
they are compensated. All employees who are absent from active
employment (by reason of disability, leave of absence, maintenance and
cure, or otherwise) are separately listed on Schedule 9.4(c). There
are no collective bargaining, employment, consultancy or similar
agreements with respect to current or former employees of the
business. No union or other collective bargaining unit has been
certified or recognized by Sellers as representing any of its
employees.
(l) Except as set forth on Schedule 9.5, there are no
pending or, to the best knowledge of the Sellers, threatened (A)
strikes, work stoppages, slowdowns, grievances or other labor disputes
with respect to any employees of the Sellers or (B) complaints or
charges with any federal, state or local governmental agency or court,
with respect to any employees of the business.
(m) (i) Set forth in Schedule 9.6(a) is a list of all
Environmental Permits held by Sellers pursuant to or required by any
Environmental Law to operate the Purchased Assets and operations of
the Sellers in the manner in which they have heretofore been operated.
(ii) Except as set forth in Schedule 9.6(b): (A) the
Purchased Assets and operations of the Sellers that are being
purchased by the Purchaser comply with all such Environmental Permits
and the Environmental Laws; (B) neither any of the Purchased Assets
<PAGE>
nor any of the operations of the Sellers that are being purchased by
Purchaser is subject to or has given or, insofar as Sellers can
reasonably foresee, may give rise to Environmental Costs and
Liabilities; (C) neither any of the Sellers nor any predecessor of the
Sellers nor any Purchased Asset or operation of the Sellers purchased
by the Purchaser is subject to any outstanding written Order or
Contract respecting any Environmental Laws; (D) there are no
investigations or judicial or administrative proceedings under any
Environmental Law pending or, to Sellers knowledge after reasonable
inquiry, threatened against any of the Sellers or any of the Purchased
Assets or any of the operations of any of the Sellers; (E) neither any
of the Sellers nor any operator, lessee, or prior owner or operator of
any of the Purchased Assets or operations of the Sellers being
purchased by the Purchaser has stored, treated, disposed of,
transported, or arranged for the disposal of any Hazardous Material;
(F) there are not now, nor, to the knowledge of the Sellers, have
there ever been, any underground storage tanks, aboveground storage
tanks, dikes or impoundments, any asbestos-containing materials, any
polychlorinated biphenyls, or any radioactive substances on, in or
under any real property owned, leased or operated by any of the
Sellers or any of their predecessors; and (G) no lien in favor of any
governmental authority for any liability under any Environmental Law,
or for damages arising from or costs incurred by such governmental
authority in response to a Release of a Hazardous Material into the
environment, has been filed or attached to any of the Purchased Assets
or any of the locations upon which the operations of the Sellers are
conducted. Purchasers shall not incur Environmental Costs and
Liabilities in excess of $5,000
<PAGE>
in the aggregate to obtain the stormwater permit, oil spill
contingency plan, or hazard communication program listed on Schedule
9.6(b).
(iii) For the purpose of this Section 9(m):
(A) Contract means any oral or written contract,
agreement, or other arrangement;
(B) Environmental Costs and Liabilities means any
and all losses, liabilities, whether known or
unknown, liquidated or contingent, obligations,
damages, fines, penalties, judgments, actions,
claims, costs and expenses (including, without
limitation, fees, disbursements and expenses of
legal counsel, experts, engineers and consultants
and the costs of investigation and feasibility
studies and remedial action under any
Environmental Law) arising from or under any
Environmental Law;
(C) Environmental Law means any federal, state,
local, or foreign law (including common law),
relating to the environment, natural resources, or
public or employee health and safety and includes,
but is not limited to, the Comprehensive
Environmental Response, Compensation and Liability
Act ("CERCLA"), 42 U.S.C. ss. 9601 et seq., the
-- ----
Hazardous Materials Transportation Act, 49 U.S.C.
ss. 1801 et seq., the Resource Conservation and
-- ----
<PAGE>
Recovery Act ("RCRA"), 42 U.S.C. ss. 6901 et seq.,
-- ----
the Clean Water Act, 33 U.S.C. ss. 1251 et seq., the
-- ----
Clean Air Act, 42 U.S.C. ss. 7401 et seq., the Toxic
-- ----
Substances Control Act, 15 U.S.C. ss. 2601 et seq.,
-- ----
the Oil Pollution Act of 1990, 33 U.S.C. ss. 2701
et seq., the Federal Insecticide, Fungicide, and
-- ----
Rodenticide Act, 7 U.S.C. ss. 136 et seq., and the
-- ----
Occupational Safety and Health Act, 29 U.S.C. ss.
651 et seq., as such laws have been amended or
-- ----
supplemented, and the regulations promulgated
pursuant thereto, and all analogous state, local
or foreign statutes;
(D) Environmental Lien means any lien in favor of
any governmental authority arising under
Environmental Laws;
(E) Environmental Permit means any permit, approval,
authorization, license, variance, registration, or
permission required under any applicable
Environmental Law or Order;
(F) Hazardous Material means any substance, material
or waste which is regulated by any governmental
authority, including, without limitation, any
material, substance or waste which is defined as a
hazardous waste, hazardous material,
hazardous substance, extremely hazardous
waste, restricted
<PAGE>
hazardous waste, contaminant, toxic waste or
toxic substance or any analogous term under any
provision of Environmental Law, which includes,
but is not limited to, petroleum, asbestos, and
polychlorinated biphenyls;
(G) Order means any order, injunction, judgment,
decree, ruling, assessment or arbitration award;
(H) Release means any release, spill, emission,
leaking, pumping, pouring, dumping, emptying,
injection, deposit, disposal, discharge,
dispersal, leaching, or migration on or into the
indoor or outdoor environment or into or out of
any property.
(n) Set forth in Schedule 9.7(a) is a list and brief
description of all of the patents, registered and common law
trademarks, service marks, trade names, copyrights, licenses and other
similar rights of Sellers and applications for each of the foregoing
(the "Intellectual Property"). The Sellers, individually or
collectively, as appropriate, own all right, title and interest in and
to all the Intellectual Property. The Intellectual Property so listed
constitute all the proprietary rights necessary to the conduct of the
business of Sellers as currently conducted; no adverse claims have
been made and no dispute has arisen with respect to any of the
Intellectual Property; and the operations of Sellers and the use by
Sellers of such Intellectual Property do not involve claimed
infringement of any patent, trademark, service mark, trade name,
copyright, license or similar right. Except as set forth in Schedule
9.7(b),
<PAGE>
there are no other Persons or businesses having the right to use or,
to the knowledge of Sellers and the Stockholders after reasonable
inquiry, using the name of Galaxie Marine Service, Inc., or any
variation thereof in the businesses conducted by Sellers, and no
persons or businesses otherwise using any of the Intellectual
Property, including without limitation, the name of Galaxie Marine
Service, Inc., or any variant thereof, have ever attempted to restrain
Sellers from using such name or variant thereof.
(o) Set forth in Schedule 9.8 is a list and brief
description of all pending litigation involving any Seller or any of
the Purchased Assets. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of the officers of Sellers
after reasonable inquiry, threatened against or affecting any of
Sellers, at law, or in equity or admiralty, or before or by any
Federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, or the
likelihood of any injunction or order which, individually or in the
aggregate, may result in any material adverse change in the business,
operations or properties of Sellers or which could result in a lien,
claim, or judgment against any Purchased Asset (except for lawsuits
and threatened lawsuits listed on Schedule 9.8 involving claims that
could result in a lien on a Vessel by operation of law) or which
could prevent or jeopardize the transactions contemplated hereby.
None of the Sellers is, to the knowledge of any officer thereof after
reasonable inquiry, in violation of or default with respect to any
statute, ordinance, regulation, permit, order, writ, injunction or
decree of any court or Federal, state or local governmental agency or
instrumentality, violation of which
<PAGE>
would result in a material adverse change in the business, operations
or properties of Sellers or which could prevent or jeopardize the
transactions contemplated hereby. In the operation of their business,
the Sellers have complied with all laws relating to the employment of
labor, including any provisions thereof relating to wages, hours,
collective bargaining and the payment of social security and similar
taxes, and Sellers are not liable for any arrearages of wages or any
taxes or penalties for failure to comply with any of the foregoing.
(p) Each of the Sellers is a citizen of the United States
within the meaning of Section 2 of the Shipping Act, 1916, as amended,
qualified to engage in the coastwise trade, and is not a foreign
person within the meaning of Sections 897 and 1445 of the Internal
Revenue Code of 1986, as amended.
(q) No consent, approval or authorization of, or
declaration or filing with any governmental authority is required on
the part of Sellers in connection with the execution, delivery and
performance of this Agreement and consummation of the transactions
contemplated hereby, except the consent of all appropriate agencies to
the assignment of any permits necessary for use of the Purchased
Assets or operation of the business of the Sellers, as listed in
Schedule 9.9. No Seller is a party to a Capital Construction Fund
Agreement.
(r) Sellers have provided to Purchaser within the time
required by the Letter of Intent dated as of October 24, 1996, between
the Purchaser and Sellers all information required to be provided
pursuant to said Letter of Intent and such additional information as
Purchaser has requested, including the following information:
<PAGE>
(i) a list of all drydockings due and the date due
within twelve months following October 24, 1996;
(ii) a summary of all maintenance and repair expenses
for the last three (3) years, reports or
information on drydockings performed in the last
three (3) years, and a list by vessel of engine
change outs ;
(iii) a list of all spares, fuel, lubricants, and
inventories both on the Vessels and ashore,
primarily relating to, but not limited to,
vessels and vehicles, and the vessel charter
agreements that set forth the fuel and
lubricants owned by Sellers with respect to
each such Vessel;
(iv) notice of any lawsuits;
(v) a description of current insurance policies,
including the premiums and deductibles under such
policies and a schedule of all claims made against
such policies for the three years prior to the
date of this Agreement;
(vi) complete copies of all Capital Construction Fund
Agreements to which any of the Sellers are party;
(vii) copies of United States Coast Guard
Certificates of Inspection and ABS Loadline
and Hull and Machinery Certificates for each
<PAGE>
Vessel having such certificates, and a list of all
Vessels that do not have such certificates;
(viii) any orders, permits, or licenses;
(ix) a list of customers for each vessel, and customer
rankings by revenue for 1994, 1995, and 1996
through October 31;
(x) lost time accident statistics for the three (3)
year period ending on the date of this Agreement;
(xi) a schedule of administrative employees (i.e., non-
seagoing employees) of each of the Sellers, listed
by name, position, years of service, and location;
(xii) copies of the Sellers medical and dental
plans;
(xiii) a schedule of vehicles included in the
Purchased Assets, including description,
vehicle ID number, and mileage;
(xiv) the 1993, 1994, and 1995 audited financial
statements for each of the Sellers;
(xv) copies of any equipment or other lease agreements
to which any of the Sellers is party;
(xvi) copies of all pleadings relating to any
outstanding lawsuits, copies of any
outstanding judgments, copies of any
settlement agreements or court or
administrative orders requiring continuing
<PAGE>
or future action or payment by any of the Sellers,
copies of any notices of potential litigation or
notices of actual or potential violations of any
law or regulation by any of the Sellers;
(xvii) copies of all permits, licenses, or other
papers required by any governmental authority
and held by any Seller;
(xviii) a schedule setting forth all employees of the
Seller who are presently either unfit for
duty, restricted to light duty, or who have
lawsuits pending against the Sellers;
(xix) a schedule setting forth all non-employees
who have health insurance coverage through
one of the Sellers;
(xx) copies of all current vessel charter parties and a
schedule of all written or verbal charter rate
commitments for each Vessel and the length of time
each rate is held firm; and
(xxi) all agreements regarding options on further
vessels.
(s) No representation or warranty made under any Section
hereof and none of the information furnished by Sellers or the
Stockholders set forth herein, in the exhibits hereto or in any
document delivered by Sellers or the Stockholders to Purchaser, or any
authorized representative of Purchaser, pursuant to this Agreement
contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements herein or therein not
misleading.
<PAGE>
(t) Investment Intention
--------------------
(i) Each of the Sellers is acquiring the shares of
Common Stock of SEACOR (to be acquired by it pursuant to this
Agreement) for its own account, for investment purposes only and not
with a view to or in connection with the public resale or distribution
(as such term is used in Section 2(11) of the Securities Act of 1933,
as amended (the "Securities Act") thereof, and except as contemplated
by this Agreement and the Investment and Registration Rights Agreement
(defined below), such Seller is not a party to any agreement,
undertaking, arrangement, obligation or commitment providing for any
such resale or distribution. Each Seller understands that the shares
of Common Stock of SEACOR Holdings to be received by it will not have
been registered under the Securities Act and cannot be sold unless
subsequently registered under the Securities Act or an exemption from
such registration is available. Each Seller hereby acknowledges that
the certificates delivered to it evidencing its shares of Common Stock
of SEACOR Holdings shall be legended substantially to the effect
provided in the previous sentence and as provided in the Investment
and Registration Rights Agreement. Each Seller and each Stockholder
is an accredited investor within the meaning of Rule 501(a) of
Regulation D under the Securities Act, or alone or together with such
Seller s or Stockholder s purchaser representative, has such knowledge
and experience in financial and business matters that such Seller or
Stockholder is capable of evaluating the relative merits and risks of
the prospective investment in the shares of Common Stock and able to
bear the economic consequences thereof.
<PAGE>
(ii) Each of the Sellers acknowledges and is aware that
no representations or warranties as to the shares of Common Stock of
SEACOR Holdings are made other than as expressly set forth in this
Agreement.
(u) Sales and Use Taxes: Any sales or use taxes payable as
a result of the sale of the Purchased Assets pursuant to this
Agreement shall be for Purchaser s account. Sellers represent and
warrant that they are engaged primarily in the offshore service vessel
industry, and that they are not now nor have they been in the past,
engaged in the business of purchase and sale of vessels and related
equipment. Any previous sales of vessels and related property made by
Sellers have been sales of depreciated, obsolete, or surplus vessels
or equipment as an incident of the business described above, and
Sellers have never been assessed, or required to remit, sales taxes in
connection with any such sale.
10. REPRESENTATIONS AND COVENANTS OF PURCHASER.
Purchaser represents and warrants to, and covenants and agrees
with, Sellers, as of the date hereof and as of the Closing Date, that:
(a) Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Louisiana, and has full corporate power and authority to acquire the
Purchased Assets and to assume the obligations provided for in this
Agreement.
(b) The execution and delivery of this Agreement by
Purchaser, the performance by Purchaser of its covenants and
agreements hereunder and the consummation by Purchaser of the
transactions contemplated hereby have been duly authorized by all
necessary
<PAGE>
corporate action on the part of Purchaser. This Agreement has been
duly executed and delivered by Purchaser and constitutes a valid and
legally binding obligation of Purchaser, enforceable against Purchaser
in accordance with its terms.
(c) Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, violates
any provision of the articles of incorporation or by-laws of Purchaser
or any applicable statute, ordinance, regulation, order, judgment or
decree of any court or governmental agency, or conflicts with or will
result in any breach of, or accelerate the performance required by,
any of the terms of or constitute a default under or result in the
termination of or the creation of any lien pursuant to the terms of
any contract or agreement to which Purchaser is a party or by which
Purchaser or any of its assets is bound.
(d) Purchaser is a citizen of the United States within the
meaning of Section 2 of the Shipping Act, 1916, as amended.
(e) No consent, approval or authorization of, or
declaration or filing with any governmental authority is required on
the part of Purchaser in connection with the execution, delivery and
performance of this Agreement, except for the filing by SEACOR
Holdings of its Registration Statement on Form S-3 with the SEC, any
filings, consents, or approvals in connection therewith, and the
declaration of effectiveness thereof by the SEC, all as contemplated
by the Investment and Registration Rights Agreement referred to in
Section 25 of this Agreement.
<PAGE>
(f) Purchaser has provided to Sellers, in connection with
Sellers performance of due diligence, copies of Purchaser s annual
reports on Form 10-K for the years ended December 31, 1993, 1994, and
1995, quarterly reports on Form 10-Q for the first three fiscal
quarters of 1996, and all current reports of Form 8-K filed by
Purchaser with the SEC since December 31, 1995. Purchaser has also
provided Sellers with copies of all press releases, SEC filings,
publicly available financial statements, and other material
announcements issued by the Purchaser between October 24, 1996, and
December 3, 1996, that describe the activities of the Purchaser. The
annual, quarterly, and current reports are hereinafter referred to as
Purchaser Reports. Purchaser represents and warrants that the
Purchaser Reports did not on their respective dates of filing by the
Purchaser with the SEC contain any misstatements of any material fact
or omit to state a material fact necessary in order to make the
statements made therein, in light of the circumstances in which they
were made, not misleading.
(g) Purchaser will cooperate fully with Sellers to obtain
any and all approvals and consents necessary to effect the
transactions contemplated by this Agreement.
(h) Purchaser either has, or has firm commitments to
obtain, all of the cash portion of the purchase price.
(i) Subsequent to the date of the last Purchaser Report,
there has not been any material adverse change in the financial
condition, results of operations, or business of the Purchaser.
<PAGE>
(j) Subsequent to the date of the latest balance sheet of
Purchaser included in the Purchaser Reports, there has been no stock
split, stock dividend, reorganization, or similar transaction
affecting the number of outstanding shares of common stock of SEACOR
Holdings.
(k) Purchaser has inspected those Vessels listed on
Schedule 10.1 hereto as of the dates indicated on the foregoing
schedule and, at the Closing, shall indicate in an addendum to
Schedule 10.1 the dates of inspection of all other Vessels to be
acquired from Sellers.
11. SELLERS COVENANTS PRIOR TO CLOSING.
Prior to the Closing Date, Sellers covenant and agree with
Purchaser as follows:
(a) Sellers shall conduct their business and operations in
the ordinary course and in substantially the same manner in which they
have in the past been conducted and will use their reasonable efforts
to maintain, preserve and protect the Purchased Assets (including good
will) until closing; such conduct shall include but not be limited to:
(i) each Seller will follow all normal drydock and
maintenance practices and replacement of spares in
operating its fleet and will not defer any
maintenance;
(ii) each Seller will maintain continuity in its
personnel practices and procedures and will
promptly notify Purchaser if a key employee gives
notice of leave;
<PAGE>
(iii) each Seller will provide prior notification
to Purchaser in the event a Vessel will be
drydocked;
(iv) each Seller will notify Purchaser of its knowledge
after reasonable inquiry of the occurrence of any
insurable event;
(v) each Seller will notify Purchaser promptly if it
learns of any actual or potential lawsuit, court
order, settlement, investigation by any
governmental authority, or administrative action,
including any notice of violation or potential
violation of any law or regulation that may
materially affect any of the assets of or the
value of any of the assets of any of the Sellers;
(vi) no Seller will incur liabilities other than
in the ordinary course of business or enter
into charters for its Vessels which have a
term of longer than six months without first
obtaining the prior written agreement of
Purchaser, which consent will not be
unreasonably withheld;
(vii) Sellers will use their best efforts to
preserve their respective present business
organizations intact and keep available the
services of their present employees, but
Sellers will not materially change the
employment arrangements for those employees
other than in the ordinary course;
<PAGE>
(viii) no Seller will make any material changes in
its customary method of operations, including
marketing and pricing policies and
maintenance of business premises, fixtures,
furniture, equipment and Vessels, except that
Sellers shall terminate their vacation policy
effective on the close of business on
December 31, 1996;
(ix) no Seller will modify, amend or cancel any
existing contracts or leases which are included in
Purchased Assets or which are to be assumed by
Purchaser in accordance with this Agreement;
(x) each Seller will pay all amounts payable by it
under any contract, order or other undertaking
timely and in the ordinary course of business;
(xi) each Seller agrees not to use any proceeds of any
Capital Construction Fund for any vessel presently
under construction or for any other new vessel;
and
(xii) no Seller will take any action which would
make any of the representations and
warranties in this Agreement untrue at
Closing Date.
Each Seller further agrees that it will not enter into any
contract for the sale, refinancing or chartering for more than six
months of any of the Purchased Assets without first obtaining
Purchaser s prior written consent, which consent shall not be
unreasonably withheld.
<PAGE>
Each Seller shall maintain its books and records in a manner that
fairly represents its income, expenses and liabilities and make those
books and records available to Purchaser during reasonable business
hours.
(b) Each Seller shall permit Purchaser and its
representatives access to inspect and survey the Vessels upon
reasonable notice and at times reasonably convenient to each Seller
and its customers. Each Seller agrees to cooperate to make any Vessel
available on a reasonable basis and cooperate in accessing voids and
other reasonable areas customarily inspected on vessels and to make
the Vessels current log books available for Purchaser s inspection.
(c) Purchaser and Sellers agree that Purchaser and its
representatives intend to drydock vessels constituting not more than
20% of the Sellers fleet. If Purchaser wishes to drydock a Vessel or
Vessels not already scheduled to be drydocked in the normal course of
Sellers business, then Sellers agree to cooperate with Purchaser.
The cost of such drydocking shall be for Purchaser s account but the
cost of moving such Vessel or Vessels to the dock shall be for the
Seller s account. Whenever practicable, drydockings will be performed
at facilities customarily utilized by Sellers for drydocking vessels.
(d) Sellers shall permit Purchaser to conduct such due
diligence following the date of execution of this Agreement and
continuing until the Closing Date as Purchaser deems necessary in
either of the following events: (i) on or after October 24, 1996,
there has been a material change in the business of any of the Sellers
or an event has occurred that could
<PAGE>
reasonably be expected to have a material effect on the Sellers
business or on the value of any of the assets to be acquired by
Purchaser; or (ii) Purchaser is required to obtain further information
from Sellers in order to obtain any government approval necessary for
the consummation of the transactions contemplated by this Agreement or
for Purchaser s use of the assets to be acquired from Sellers.
Sellers shall cooperate with Purchaser in the conduct of any due
diligence under this subsection (d) by providing to Purchaser, as soon
as practicable following a request for information, such information
as is reasonably available to it.
(e) Sellers shall maintain in full force and effect through
the Closing Date all of their presently existing insurance coverage,
or insurance comparable to such existing coverage.
(f) On or before the Closing Date, as required by law or
regulation, Sellers shall have notified the appropriate authorities of
their intent to transfer to the Purchaser any permits necessary for
the operation and use of the Purchased Assets and the business of the
Sellers. Sellers agree to cooperate with Purchaser in (i) identifying
any and all permits required by Purchaser to operate the business of
the Sellers from and after the Closing Date and (ii) either
transferring such existing permits of Sellers to Purchaser or
obtaining such new permits as Purchaser requires. Sellers shall use
their best efforts to obtain, prior to the Closing Date, all necessary
permits, approvals and consents required in order to effect the
transactions contemplated hereby and to permit Purchaser to use the
Purchased Assets as they have heretofore been used, including but not
limited to consents or approvals required by the
<PAGE>
U.S. Maritime Administration, U.S. Environmental Protection Agency,
and any other governmental authority, lessors or any other parties to
contracts, leases, permits, licenses or agreements to be assigned
pursuant to this Agreement. Sellers agree to cooperate fully with
Purchaser to ensure that any consent required from the U.S. Maritime
Administration is satisfactory to Purchaser.
12. CONDITIONS TO OBLIGATIONS OF PURCHASER.
The obligations of Purchaser under this Agreement are, at the
option of Purchaser, subject to the conditions that:
(a) All the terms, covenants and conditions of this
Agreement to be complied with and performed by Sellers on or before
the Closing Date shall have been fully complied with and performed in
all material aspects.
(b) The representations and warranties made by Sellers
herein shall be correct in all respects, on and as of the Closing
Date, with the same force and effect as though such representations
and warranties had been made on and as of the Closing Date.
(c) On or before the Closing Date, Sellers shall have
obtained all approvals or consents necessary for the consummation of
the transactions contemplated hereby, including:
(i) the consent of Marad to the transfer of any
Vessels which are subject to a Capital
Construction Fund Agreement with Marad;
<PAGE>
(ii) the consent of all appropriate agencies to the
assignment or transfer to the Purchaser of any
permits necessary for use of the Purchased Assets
or operation of the business of the Sellers. Also
on or before the Closing Date, any waiting period
prescribed by Title II of the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, 15 U.S.C.A.
Section 18a(c)(8), as amended ("H-S-R") filed with
respect to the purchase by SEACOR Marine, Inc., or
its designee of vessels from Waveland Marine
Service, Inc. (the "Waveland Transaction"), shall
have been waived by the United States or shall
have expired without further investigation or
commencement of judicial proceedings, provided,
--------
however, that if any such investigation or
-------
judicial proceedings are initiated, the same shall
have been finally concluded and resolved to the
satisfaction of both parties, provided further,
-------- -------
however, that, if the United States conditions
------- ----
approval of the Waveland Transactions upon the
taking of any additional actions, including but
not limited to divestiture of any vessels or other
assets, by Purchaser or any affiliated entity,
then Purchaser, at its option, shall either:
<PAGE>
(A) notify Sellers of its intent not to go
forward with the transactions contemplated by
this Agreement, in which case (1) Sellers
shall be released from their obligation under
the Letter of Intent to refrain from
soliciting, encouraging, initiating, or
negotiating any offers or proposals relating
to the Sellers assets from third parties and
(2) the FIFTY THOUSAND DOLLARS ($50,000)
deposit (the "Deposit") held by Sellers shall
be deemed forfeited by Purchaser to Sellers;
or
(B) notify Sellers of its intent to go forward
with the transactions contemplated by this
Agreement; and
(iii) such other consents as are referred to in
Section 7 hereof and in Schedules 7.1, 7.2,
7.3, and 9.9 hereof.
(d) Purchaser shall have received an opinion of Phelps
Dunbar, L.L.P., counsel for Sellers, dated the Closing Date, in form
and substance satisfactory to Purchaser and its counsel.
(e) Each Seller shall have furnished Purchaser with a
certificate, dated the Closing Date, which shall state that (i) all
the terms, covenants and conditions herein to be performed or complied
with by it on or before the Closing Date have been fully performed or
complied with and (ii) the representations and warranties made by it
herein are correct, on and
<PAGE>
as of the Closing Date, with the same force as though such
representations and warranties had been made on and as of the Closing
Date.
(f) No action, suit or proceeding against Sellers, the
Stockholders, or Purchaser relating to the consummation of any of the
transactions contemplated by this Agreement nor any governmental
action seeking to delay or enjoin any such transactions shall be
pending or threatened.
(g) Each of the Sellers shall have executed and delivered
the Investment and Registration Rights Agreement referred to in
Section 25 of this Agreement.
(h) The transactions contemplated by that purchase
agreement, dated of even date herewith, among SEACOR Marine, Inc., and
Waveland Marine Service, Inc., shall have been consummated as of the
Closing Date.
13. CONDITIONS TO OBLIGATIONS OF SELLERS.
The obligations of Sellers under this Agreement are, at their
option, subject to the conditions that:
(a) All the terms, covenants and conditions of this
Agreement to be complied with and performed by Purchaser on or before
the Closing Date shall have been fully complied with and performed in
all material respects.
(b) The representations and warranties made by Purchaser
herein shall be correct in all material respects on and as of the
Closing Date, with the same force and effect as though such
representations and warranties had been made on and as of the Closing
Date.
<PAGE>
(c) On or before the Closing Date, Sellers shall have
obtained all necessary governmental approvals or consents necessary
for the consummation of the transactions contemplated hereby.
(d) Sellers shall have received opinions, dated as of the
Closing Date, from Fort & Schlefer, L.L.P., and Lugenbuehl, Burke,
Wheaton, Peck, Rankin & Hubbard, counsel for Purchaser, in form and
substance satisfactory to Sellers and their counsel.
(e) Purchaser shall have furnished Sellers with a
certificate, dated the Closing Date, which shall state (i) all the
terms, covenants, and conditions herein to be performed or complied
with by Purchaser on or before the Closing Date have been performed or
complied with and (ii) the representations and warranties made by
Purchaser herein are correct, on and as of the Closing Date, with the
same force and effect as though such representations and warranties
had been made on and as of the Closing Date.
(f) No action, suit or proceeding against Sellers, the
Stockholders, or Purchaser relating to the consummation of any of the
transactions contemplated by this Agreement nor any governmental
action seeking to delay or enjoin any such transactions shall be
pending or threatened.
(g) The Purchaser shall have executed and delivered the
Investment and Registration Rights Agreement referred to in Section 25
of this Agreement.
<PAGE>
(h) The transactions contemplated by that purchase
agreement, dated of even date herewith, among SEACOR Marine, Inc., and
Waveland Marine Service, Inc., shall have been consummated as of the
Closing Date.
14. EMPLOYMENT AND CONSULTING AGREEMENTS.
(a) On the Closing Date, Purchaser shall enter into
employment agreements, substantially in the forms of Schedules 14.1,
14.2, and 14.3 hereto with D. Lee Felterman, Daniel C. Felterman, and
Michael Felterman, respectively, and consulting agreements with F.C.
Felterman and Ernest Felterman substantially in the forms of Schedules
14.4 and 14.5 hereto, respectively.
(b) Purchaser does not intend to offer employment contracts
to any other employee of Sellers. Purchaser does intend, however, to
offer employment on an at-will basis to all active employees of
Sellers on the Closing Date. Benefits for all former employees of
Sellers hired by Purchaser, including those under employment contracts
with Purchaser, shall be the same as those offered to all employees of
SEACOR Marine, Inc. Former employees of Sellers hired by Purchaser
shall be given credit under all SEACOR Marine, Inc., employee benefit
plans for all periods of service with Sellers, including, without
limitation, credit for eligibility and vesting purposes under any
employee pension benefit plan maintained by Purchaser and under
Purchaser's vacation policy. Former employees of Sellers who are
hired by Purchaser will be covered immediately after the Closing by
the health insurance plan of SEACOR, without any exclusion for pre-
existing conditions for which coverage was provided
<PAGE>
by Sellers and for which SEACOR provides coverage to its employees.
Purchaser agrees to continue to pay former employees of Sellers hired
by Purchaser the same wages that they earned with Sellers at the time
of the Closing for a transition period of three months from the
Closing Date. Thereafter, such employees will be compensated under
the same wage rates as other employees of SEACOR performing similar
job functions, except that the administrative and shore support staff
shall remain at the salary levels they earned as of the Closing Date
after adjustment for health insurance withholding. Subject to
applicable laws, Purchaser shall have the right to dismiss any or all
of such employees at any time, with or without cause, and to change
the terms of their employment except as otherwise agreed herein.
15. SURVIVAL OF AGREEMENT; DEFENSE OF CLAIMS BY THIRD PARTIES.
(a) This Agreement, including the covenants,
representations and warranties contained herein or in any certificate
delivered pursuant hereto and the indemnities provided for herein,
shall survive the closing hereunder, provided, however, that no claim
-------- -------
for indemnification under Section 15 of this Agreement, except for
claims relating to title to the Purchased Assets or personal injury
claims on which the statute of limitations or repose does not begin to
run until discovery by the person asserting the claim, shall be made
more than six (6) years after the Closing Date.
(b) Sellers Indemnification. The Sellers, jointly and
-----------------------
severally, hereby agree to indemnify the Purchaser and its affiliates
against, and to hold the Purchaser and its affiliates harmless from:
<PAGE>
(i) any and all claims, demands, damage, loss,
liability (whether fixed or contingent, known or
unknown) and expense (including reasonable
expenses of investigation and reasonable
attorneys fees and expenses in connection with
any action, suit or proceeding) (collectively,
"Damages") arising out of or resulting from the
ownership of the Purchased Assets or the operation
of the Sellers business prior to the Closing
Date;
(ii) the failure of any of the representations and
warranties made by any Seller in this Agreement to
have been true when made and as of the Closing
Date;
(iii) the failure of any Seller to comply with or
perform any covenant or agreement made or to
be performed by any Seller pursuant to this
Agreement;
(iv) any and all Environmental Costs and Liabilities
based upon, attributable to, arising out of or
resulting from, property owned, operated, or
leased by any of the Sellers or their facilities
or operations conducted prior to the Closing Date,
or, in the case of Vessels, prior to delivery
thereof pursuant to this Agreement;
(v) the failure of the Sellers to comply with, or to
provide notice with respect to, the bulk transfer
laws of any jurisdiction in
<PAGE>
connection with the transactions contemplated by
this Agreement; and
(vi) any and all Retained Liabilities, including any
and all Taxes with respect to the ownership, use
or leasing of any of the Purchased Assets on or
prior to the Closing Date.
(c) Purchaser Indemnification. The Purchaser hereby agrees
-------------------------
to indemnify the Sellers against, and to hold the Sellers harmless
from (i) any and all Damages arising out of or resulting from the
ownership or operation of the Purchased Assets transferred to the
Purchaser pursuant to this Agreement after the Closing Date; (ii) the
failure of any representation or warranty of the Purchaser contained
in this Agreement to have been true when made and as of the Closing
Date; (iii) the failure of the Purchaser to comply with or perform any
covenant or agreement made or to be performed by the Purchaser
pursuant to this Agreement; and (iv) any and all Assumed Liabilities;
except with respect to Damages incurred after the Closing Date that
were caused by or arose from breaches of any of the Seller s
representations, warranties, covenants or agreements contained in this
Agreement.
(d) Procedures for Claims; Exclusivity.
----------------------------------
(i) The remedy of indemnification provided pursuant to
this Section 15 and the provisions of the Letter of Intent between the
parties relating to the earnest money deposit shall be the sole and
exclusive remedy of the Purchaser and the Sellers for Damages arising
out of any breach of any representation or warranty in this Agreement.
<PAGE>
(ii) A party seeking indemnification pursuant to this
Section 15 (an "Indemnified Party") from or against the assertion of
any claim, or the commencement of any action, suit or proceeding in
respect of which indemnity may be sought under this Section 15 (an
"Assertion") shall (i) give prompt notice to the party from whom
indemnification is sought (the "Indemnifying Party"), and (ii) provide
the Indemnifying Party such information with respect thereto as the
Indemnifying Party may reasonably request, but no failure to give such
notice or copies or provide such information shall relieve the
Indemnifying Party of any liability hereunder (except to the extent
the Indemnifying Party has suffered actual prejudice by such failure).
No Indemnified Party shall settle any Assertion without the prior
written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld or delayed.
(iii) The Indemnifying Party shall have the right,
exercisable by the furnishing of written notice of an Assertion to the
Indemnified Party within 20 days of receipt of notice from the
Indemnified Party pursuant to Section 15(c)(ii) to assume the defense
of such Assertion; provided, however, that
-------- -------
(A) the Indemnifying Party expressly agrees in
its notice to the Indemnified Party that, as
between the Indemnifying Party and the
Indemnified Party, solely the Indemnifying
Party shall be obligated to satisfy and
discharge such Assertion; and
<PAGE>
(B) no other person has the right to assume the
defense of such Assertion pursuant to the
terms of any insurance coverage.
If the Indemnifying Party assumes such defense, the Indemnifying Party
(1) may select counsel, which counsel shall be reasonably acceptable
to the Indemnified Party, and (2) shall be obligated to pay the costs
(including reasonable attorneys fees and expenses) incurred by the
Indemnified Party in defending such Assertion between the date of the
commencement of such Assertion and the date of the Indemnifying
Party s assumption of such defense.
(iv) If the Indemnifying Party shall not have assumed
the defense of any Assertion as provided in Section 15(c)(iii) or if,
at any time after the Indemnifying Party shall have assumed the
defense of any Assertion pursuant to Section 15(c)(iii), any of the
conditions set forth in paragraphs (A) or (B) thereof is no longer
satisfied, then, upon ten days written notice to the Indemnifying
Party, the Indemnified Party may assume the defense of such Assertion
with counsel selected by it and shall have the right to consent to the
entry of judgment with respect to, or otherwise settle, such Assertion
with the prior written consent of the Indemnifying Party (which
consent shall not be unreasonably withheld or delayed), and the costs
of such defense and/or settlement (including reasonable attorneys
fees and expenses) shall be borne by the Indemnifying Party.
(v) The Indemnifying Party, if it shall have assumed
the defense of any Assertion, shall have the right to consent to the
entry of judgment with respect to, or
<PAGE>
otherwise settle, such Assertion; provided, however, that such
-------- -------
judgment or settlement includes an unconditional release of the
Indemnified Party and its affiliates from all liability or
restrictions in respect of claims that are the subject matter of such
Assertion.
(vi) The Indemnifying Party and the Indemnified Party
shall cooperate, and cause their respective affiliates to cooperate,
in the defense or prosecution of any Assertion and shall furnish or
cause to be furnished such records, information and testimony, and
attend such conferences, discovery proceedings, hearings, trials or
appeals, as may be requested in connection therewith. The
Indemnifying Party or the Indemnified Party, as the case may be, shall
have the right to participate, at its own expense, in the defense or
settlement of any Assertion which the other is defending.
16. EXPENSES AND TAXES.
Except as otherwise provided herein, Sellers and Purchaser shall
each pay their own expenses in connection with this Agreement and the
transactions contemplated hereby. Sellers shall provide to Purchaser
a certificate on the Closing Date to the effect that no sales and use
taxes that are required to be collected by Sellers from any third
party are due and owing arising out of the operation of Sellers
business prior to the Closing Date which have not been paid on or
prior to the Closing Date.
17. COOPERATION AND PUBLICITY.
(a) Neither any Seller nor Purchaser shall voluntarily
undertake any course of action inconsistent with satisfaction of the
requirements applicable to it set forth in this
<PAGE>
Agreement, and each shall promptly do all such acts and take all such
measures as may be appropriate to enable it to perform as early as
practicable the obligations herein provided to be performed by it.
(b) No party will issue any press release or make any other
public statement relating to the transactions contemplated hereby
unless required by law, regulation, court order or the rules of any
applicable stock exchange or regulatory authority, and any such
release or statement shall be subject to review by both parties.
18. WAIVER OF COMPLIANCE WITH BULK TRANSFER LAWS.
The Purchaser hereby waives compliance by the Sellers with the
provisions of the bulk transfer laws of any jurisdiction in connection
with the transactions contemplated by this Agreement. Notwithstanding
anything to the contrary in this Agreement, in accordance with the
terms and provisions of Section 15, the Sellers, jointly and
severally, agree to indemnify and hold the Purchaser harmless from and
against all Damages resulting from or arising out of the failure to
comply with, or to provide notice with respect to, the bulk transfer
laws of any jurisdiction in connection with the transactions
contemplated by this Agreement.
19. DEPOSIT.
(a) In the event none of the Sellers is in default
hereunder and this Agreement is terminated or the transactions
contemplated hereby are not consummated, in either event, due to
Purchaser s material breach of this Agreement or material non-
<PAGE>
performance by Purchaser hereunder the FIFTY THOUSAND ($50,000.00)
DOLLARS deposit (the "Deposit") held by Sellers hereunder shall be
deemed forfeited by Purchaser to Sellers. Except as provided in
Section 12(c)(ii) hereof, in the event Purchaser is not in default
hereunder and this Agreement is terminated or the transactions
contemplated hereby are not consummated, the Deposit shall be
refunded, without interest, to Purchaser within five business days
after the termination.
(b) In the event the closing of the transaction
contemplated hereby occurs, the Deposit held by Sellers in accordance
with this Agreement shall be applied to the Purchase Price.
20. MISCELLANEOUS.
(a) Each party represents and warrants that there are no
claims for brokerage commissions or finders fees in connection with
the transactions contemplated by this Agreement resulting from any
action taken by it. Each of the parties will exonerate, indemnify and
hold harmless the other in respect of any and all losses sustained by
the other as a result of liability to any broker or finder on the
basis of any arrangement or agreement made by or on behalf of such
party.
(b) This Agreement cannot be orally changed or terminated.
The parties may, by written supplemental agreement, (i) extend the
time for the performance of any of the obligations or other acts of
the parties hereto, (ii) waive any inaccuracy in any representation
<PAGE>
contained herein or in any Schedule hereto, (iii) waive compliance
with any of the covenants or conditions contained in this Agreement,
and (iv) alter or amend this Agreement in any respect.
(c) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns, provided that neither any of the Sellers nor Purchaser shall
assign any of its rights or privileges hereunder without the prior
written consent of the other; provided, however, that the Sellers may
-------- ------- ----
assign to their shareholders the right to receive the shares issuable
hereunder upon receipt by SEACOR Holdings of an executed undertaking
by such shareholders in the form of Exhibit B to the Investment and
Registration Rights Agreement.
(d) Except as specifically set forth or referred to herein,
nothing herein expressed or implied is intended or shall be construed
to confer upon or give to any Person, firm or corporation, other than
the parties hereto and their respective permitted successors and
assigns or personal representatives, any rights or remedies under or
by reason of this Agreement.
(e) All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal
process in regard hereto shall be validly given, made or served if in
writing and delivered personally (including delivery by messenger) or
sent by telecopier facsimile (provided that answer-back confirmation
is received by the sender), or registered or certified mail (postage
prepaid, return receipt requested), addressed as
<PAGE>
follows or to such other address as a party hereto shall hereafter
specify in writing to the other:
In the case of the Purchaser:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
25th Floor
New York, New York 10019
Fax: (212) 582-8522
Attn: Mr. Randall Blank
Executive Vice President
With a copy to:
Alice N. Gran, Esquire
Fort & Schlefer, L.L.P.
1401 New York Avenue, N.W.
Suite 1200
Washington, D.C. 20005
Fax: (202) 783-6898
In the case of Sellers:
Galaxie Marine Service, Inc.
115 Landry Street
P.O. Box 189
Patterson, Louisiana 70392
Fax: (504) 395-3525
<PAGE>
With a copy to:
Phelps Dunbar, L.L.P
400 Poydras Street
New Orleans, Louisiana 70130
Attn: Virginia Boulet
Fax: (504) 568-9130
(f) This Agreement and the Schedules annexed hereto and
made a part hereof contain the entire agreement between the parties
hereto with respect to the purchase and sale of assets and other
transactions contemplated herein and shall be governed by and
construed in accordance with the laws of the State of Louisiana.
Notwithstanding the foregoing or anything else to the contrary herein,
those provisions of the Letter of Intent between the parties, dated as
of October 24, 1996, and the Term Sheet attached thereto, which by
their terms shall survive until January 31, 1997, shall continue to be
valid and enforceable until those provisions terminate in accordance
with the Letter of Intent, except to the extent that those provisions
are inconsistent with the terms of this Agreement, in which case this
Agreement shall govern.
(g) If any provision of this Agreement shall be rendered
invalid or unenforceable by any body of competent jurisdiction, such
judgment shall not render the remainder of this Agreement invalid or
unenforceable.
(h) Subsequent to the closing hereunder and prior to proper
recordation or filing by or on behalf of Purchaser of all necessary
deeds or other instruments of transfer
<PAGE>
Sellers will cooperate in all respects in assertion by Purchaser of
ownership to such properties and will not do anything inconsistent
with such ownership.
21. POST-CLOSING ACCOUNTING
The parties acknowledge that Sellers are assigning to Purchaser
no accounts receivable, and that, except as expressly provided in the
first sentence of Section 3(a) hereof Purchaser is assuming no
liabilities. Purchaser and Sellers agree, consistent with their
normal business practices, to cooperate in collecting and accounting
for Sellers accounts receivable (including through use of Purchaser's
computer equipment and office personnel as necessary) as of the
Closing Date and to assist Sellers in their efforts to discharge
Sellers liabilities. The parties further agree to develop a
procedure on or prior to the Closing Date to implement the foregoing.
Such procedure shall include provision for (a) matching of payments
received to invoices outstanding and identification of disputed
invoices; and (b) assisting Sellers in accounting for outstanding
payables. It is not intended that Purchaser will disburse or collect
funds for the Sellers, but Purchaser will assist the Sellers in post-
closing accounting for a period of six (6) months from the Closing
Date.
22. STOCKHOLDERS AGREEMENTS.
The Stockholders hereby acknowledge and consent to the terms and
provisions of this Agreement and agree to be bound by the terms and
provisions hereof. The Stockholders also hereby represent that, among
them, they are the owners of more than eighty percent (80%) of the
issued and outstanding shares of stock of each of the Sellers, and
they hereby agree jointly
<PAGE>
and severally that they will not sell, transfer or otherwise encumber
such shares prior to closing.
23. LEASE OF OFFICE BUILDING
Purchaser has agreed to enter into a lease substantially in the
form of Schedule 23.1 hereto under which Purchaser shall lease an
office building at 115 Landry Street, Patterson, Louisiana 70392,
together with certain real estate contiguous to that building.
24. EXPENSES OF CLOSING
Each party to this Agreement will pay its respective legal,
accounting, and other costs incurred in connection with this
transaction.
25. REGISTRATION RIGHTS AGREEMENT
(a) The issuance of shares of common stock of SEACOR
Holdings, Inc. (the "SEACOR Common Stock") to the Sellers pursuant to
this Agreement will not be registered under the Securities Act, or any
state securities laws, in reliance upon certain exemptions from
registration contained therein and, therefore, will be subject to
restrictions on transfer. Pursuant to the terms and conditions of the
Investment and Registration Rights Agreement, in substantially the
form attached hereto as Schedule 25.1 (the "Investment and
Registration Rights Agreement"), Sellers shall have certain rights to
require the registration of the resale by the Sellers of their SEACOR
Common Stock.
<PAGE>
(b) Each certificate representing the shares of SEACOR
Common Stock to be issued to the Sellers pursuant to this Agreement
shall be stamped with a legend in substantially the following form:
The Shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
any state securities law, and may not be transferred, sold,
or otherwise disposed of in the absence of such registration
or an exemption therefrom. Such Shares may be transferred
only in compliance with the conditions specified in the
Investment and Registration Rights Agreement, dated as of
___________________, 1997, between the Issuer and the other
entities and individuals party thereto, a complete and
correct copy of which is available for inspection at the
principal office of the Issuer and will be furnished to the
Holder hereof upon written request and without charge.
26. DEFINITIONS.
Attached hereto as Schedule X is a schedule of definitions of
defined terms used in this Agreement and other terms used herein
without definition.
<PAGE>
IN WITNESS WHEREOF, the parties hereby have caused this Agreement
to be duly executed and their respective corporate seals to be affixed
hereto, all as of the day and year first above written.
ACADIAN OFFSHORE SERVICES, INC.
By: /s/ Timothy McKeand
Vice President
SEACOR HOLDINGS, INC.
By: /s/ Milton Rose
Vice President
GALAXIE MARINE SERVICE, INC.
By: /s/ D. Lee Felterman
President
MOONMAID MARINE, INC.
By: /s/ F. C. Felterman
President
<PAGE>
TRIANGLE MARINE, INC.
By: /s/ Ernest Felterman
President
THE STOCKHOLDERS:
/s/ F. C. Felterman
F.C. Felterman
/s/ Ernest Felterman
Ernest Felterman
/s/ D. Lee Felterman
D. Lee Felterman
/s/ Daniel C. Felterman
Daniel C. Felterman
NYFS11...:\93\73293\0004\1711\EXH1087X.550
PURCHASE AGREEMENT
AGREEMENT OF PURCHASE AND SALE dated as of December 3, 1996,
among (A) SEACOR MARINE, INC., a Delaware corporation ("Purchaser"),
(B) SEACOR HOLDINGS, INC., a Delaware corporation ("SEACOR Holdings"),
(C) WAVELAND MARINE SERVICE, INC., a Louisiana corporation ("Seller"),
and (D) F.C. Felterman, Ernest Felterman, D. Lee Felterman, and Daniel
C. Felterman (each individually a Stockholder and collectively the
"Stockholders").
1. SALE OF ASSETS AND BUSINESS OF THE SELLERS.
(a) Upon the terms and subject to the provisions of Section
7(f) hereof and subject to the other provisions set forth in this
Agreement, the Seller will sell, convey, assign, transfer and deliver
to Purchaser, and Purchaser will purchase from the Seller, all the
assets set forth in Schedule 1.1 hereto (such assets, excluding the
Excluded Assets (as hereinafter defined), being hereinafter called
the "Purchased Assets"). The Purchased Assets include, without
limitation, those assets referred to and listed in Schedules 1.1, 3.1,
7.1, and 9.7 (except for the name "Waveland").
(b) Anything hereinabove contained to the contrary
notwithstanding, the Purchased Assets shall not include any assets of
the Seller not listed on one of the aforementioned Schedules,
including the following (hereinafter collectively called the "Excluded
Assets"):
i) cash on hand and cash equivalents;
ii) cash value of life insurance;
<PAGE>
(iii) accounts and notes receivable;
(iv) prepaid expenses, utility and similar deposits;
(v) any insurance policies;
(vi) the capital construction fund accounts; and
(vii) any interest in real property.
(c) After the Closing, all books and records of Seller
related to the Purchased Assets shall be maintained at the office
building at 115 Landry Street, Patterson, Louisiana, to be leased by
Acadian Offshore Services, Inc. (the "Office Building") and shall be
available at all times for inspection and copying by officers,
attorneys, accountants and other authorized representatives of
Purchaser. If Seller shall desire to dispose of any such books and
records (which it shall have the right to do after the expiration of
six years after the Closing Date) or remove any such books and records
from the Office Building, Seller shall, before making such disposition
or so removing such books and records, give Purchaser a reasonable
opportunity, at Purchaser s cost and expense, to copy such books and
records as it may select.
2. PURCHASE PRICE, PAYMENT, ALLOCATION, RISK OF LOSS.
(a) Upon the terms and subject to the conditions set forth
in this Agreement, Purchaser will pay to Seller at the closing on the
Closing Date, subject to the provisions of Section 7(c) hereof, as the
aggregate purchase price for the Purchased Assets listed on Schedule
1.1 hereof, cash in the amount of $15,400,000 (which shall be paid by
wire transfer
<PAGE>
received before the close of banking business on the Closing Date to
an account or accounts designated by Seller to Purchaser in writing
prior to the Closing Date), subject to adjustment, credit and reserves
as follows:
i) the purchase price shall be adjusted upward to
reflect all of the Seller s costs, to the date of
closing, associated with that certain supply boat,
Shipyard Hull No. 113 (the "Supply Boat"),
currently under construction at Houma Fabricators
shipyard. The adjustment shall consist of:
a) reimbursement for all progress payments made
by or, to the extent that Seller has a
reimbursement obligation with respect to any
payment made on its behalf, on behalf of
Seller under the contract under which the
Supply Boat is being constructed;
b) reimbursement for all reasonable and
documented out-of-pocket costs, as listed on
Schedule 2.1 hereto, incurred by or, to the
extent that Seller has a reimbursement
obligation with respect to any payment made
on its behalf, on behalf of Seller in
connection with the financing and
construction of the Supply Boat;
<PAGE>
c) interest on the amounts reimbursed under (a)
and (b) above, calculated at an annual rate
of 8.5 percent from the date on which the
funds were advanced until the Closing Date;
d) a premium equal to 10 percent of the amounts
reimbursed under (a) and (b) above (but
excluding any funds expended on or after
October 24, 1996).
In exchange, Purchaser shall acquire all of
Seller s right, title and interest in and under
all contracts relating to the construction and
outfitting of said Supply Boat. Purchaser shall
also assume all of Seller s obligations under such
construction and outfitting contracts; and
ii) the purchase price shall be adjusted for
certain events of loss as provided in
Section 2(c) hereof.
In addition, as to all personal property taxes which have actually
been prepaid by Seller, the Purchaser shall reimburse Seller on the
Closing Date for all such prepaid property taxes, prorated from the
Closing Date to reflect the fact that Purchaser shall be responsible
for such taxes from and as of the Closing Date and Seller shall be
responsible for such taxes to the Closing Date. Purchaser shall be
responsible for all sales, use, and ad valorem taxes arising as a
consequence of the purchase of the Purchased Assets.
<PAGE>
(b) The Purchaser and Seller have agreed upon the
allocation of the purchase price to the various assets included in the
Purchased Assets, as set forth in Schedule 1.1 hereto.
(c) As of and after the time at which the transactions
contemplated by this Agreement are consummated (the "Closing"), risk
of loss of the Purchased Assets purchased by Purchaser shall be borne
by Purchaser. Prior to the Closing, risk of loss of the Purchased
Assets shall be borne by Seller. In the event of an actual,
constructive, agreed or compromised total loss ("Total Loss") of any
Purchased Asset prior to the Closing, the purchase price shall be
reduced by 114.29% of the allocated purchase price of the asset so
lost as set forth in Schedule 1.1 hereto, which Schedule 1.1 shall be
conclusive for the purposes of allocating purchase price in the event
of a Total Loss. In such event, all insurance proceeds in connection
with such casualty shall be for the sole account of Seller, and
Purchaser shall have no claim whatsoever to same. The purchase price
shall not be reduced in the event any of the Purchased Assets sustains
a loss or other casualty other than a Total Loss prior to the Closing,
it being understood and agreed that the sale and purchase of the
Purchased Assets shall be, except as otherwise set forth in this
Agreement, on an as is, where is basis at the time of inspection of
such assets (as set forth on Schedule 10.1 hereto), subsequent
ordinary wear and tear excepted. However, in the event of a loss of
or casualty to a Purchased Asset other than a Total Loss prior to the
Closing, the Seller agrees to arrange and pay for any repair to such
asset, or if appropriate and with the consent of Purchaser, assign to
Purchaser any claim
<PAGE>
relating to such asset under Seller s insurance policies, any
insurance proceeds received by or owed to Seller on account of such
asset, and any other claim or cause of action relating to such asset,
together with funds sufficient to cover any self-insured or deductible
amount payable in connection with such casualty or loss. Purchaser
shall have the opportunity to make a full investigation of each
Purchased Asset prior to the Closing Date, and Purchaser accepts title
to the Purchased Assets without any warranty on the part of Seller as
to fitness for any intended purpose, merchantability, or condition
except as otherwise provided herein.
3. ASSUMPTION OF CERTAIN CONTRACTS AND INDEMNITIES.
(a) Upon the terms and subject to the conditions set forth
in this Agreement, Purchaser will assume on the Closing Date by
appropriate instruments and will pay, perform and discharge, or cause
to be paid, performed and discharged, only such debts, obligations,
contracts and liabilities of Seller incurred up to and including the
Closing Date (A) arising under uncompleted orders entered into by
Seller for the purchase of materials, supplies and equipment for the
requirements of the Seller s business in the ordinary course and which
are ordinarily expended, (B) arising under such contracts, leases,
plans and other commitments set forth in Schedule 3.1 hereto, and (C)
arising under contracts the assignments of which are subject to the
provisions of Section 7(f) hereof, but only to the extent that, under
the terms of any such completed orders or other instruments referred
to in (A), (B) and (C), payment or performance by Seller under the
terms thereof is required after (and not prior to) the Closing
<PAGE>
Date (such assumed obligations to the extent so assumed, being
hereinafter referred to collectively as the "Assumed Liabilities").
Seller shall be fully indemnified by Purchaser against any such
Assumed Liabilities in accordance with the provisions of Section 14 of
this Agreement. It is expressly understood and agreed that, except
for the Assumed Liabilities, Purchaser has not agreed to and shall not
assume any other debts, obligations, contracts, or liabilities of any
of the Seller (the "Retained Liabilities"), including but not limited
to, any of the following:
i) any obligations or liabilities of Seller under
this Agreement;
ii) any debts, obligations, contracts or liabilities
for expenses, taxes and fees incident to the
preparation of this Agreement or the consummation
of the transactions contemplated hereby (other
than as provided elsewhere in this Agreement)
including, without limitation, all counsel and
special auditing fees and brokerage commissions,
if any;
iii) any debts, obligations, contracts or liabilities
in respect of taxes, and reserves for deferred
taxes, in each case relating only to periods
ending on or before the Closing Date;
iv) any Environmental Costs and Liabilities (as that
term is defined in Section 9) of Seller or any
predecessors or affiliated companies of Seller
resulting from, caused by, or arising out of,
directly or
<PAGE>
indirectly, the conduct of the business of the
Seller or the Seller s ownership, operation, or
lease of any properties or assets or any assets
previously used in the business by Seller or any
predecessor or affiliated companies of Seller at
any time prior to or on the Closing Date, provided
--------
that, nothing herein is intended to affect any
----
rights that Seller may have against any
predecessor of Seller;
(v) any and all liabilities and obligations of Seller
arising from or relating to the employment or
termination of employment of any person with
respect to the business on or prior to the Closing
Date;
(vi) any liability or obligation of Seller arising
under or in respect of any agreements,
undertakings or commitments to the extent that
payment or performance thereof is required, by the
terms thereof, prior to the Closing Date;
(vii) any liabilities of the business of the Seller
relating to the Purchased Assets or arising out of
the operation of Seller s business prior to the
Closing Date; and
(viii) any debt, contract, liability, or obligation
of Seller not expressly assumed by Purchaser
pursuant to this Section 3 and any matter
<PAGE>
not to be assumed as expressly set forth in any of
the Schedules hereto.
(b) All debts, obligations, contracts and liabilities of
the Seller not specifically assumed by the Purchaser pursuant to the
first sentence of Section 3(a) hereof shall remain the sole
responsibility of the Seller, and Purchaser shall be fully indemnified
against such debts, obligations, contracts, and liabilities by Seller
in accordance with the provisions of Section 14 of this Agreement.
4. ALTERNATE FORMS OF TRANSACTION; GUARANTEE.
(a) Purchaser may elect, by written notice to Seller prior
to the Closing Date, to effect the purchase of assets and assumption
of obligations as contemplated by this Agreement through one or more
direct or indirect subsidiaries (either presently existing or
established for that purpose) of SEACOR Holdings, the parent of
Purchaser. In such event, any transfers to and assumptions by the
Purchaser contemplated hereby shall, to the extent specified in such
election, be made to and by such subsidiaries.
(b) Purchaser may elect, by written notice to Seller prior
to the Closing Date, to effect the purchase of assets and assumption
of obligations as contemplated by this Agreement through one or more
qualified intermediaries, as that term is defined under Section 1031
of the Internal Revenue Code. In such event, any transfers to and
assumptions by the Purchaser contemplated hereby shall, to the extent
specified in such election, be made to and by such qualified
intermediaries.
<PAGE>
(c) In the event of an election pursuant to paragraph (a)
or (b) above, the provisions of this Agreement shall be deemed to be
amended to the extent necessary to permit the carrying out of such
election or exercise.
(d) Notwithstanding any election or lack of election made
pursuant to this Section 4, SEACOR Holdings agrees to guarantee the
indemnification obligations of the Purchaser to Seller pursuant to
Section 14 hereof; provided, however, that Seller shall not seek to
-----------------------
enforce the above guarantee of SEACOR Holdings unless and until Seller
has first sought performance of those obligations from Purchaser and
Purchaser shall have refused or been unable to fulfill those
obligations.
5. ACCESS TO PLANTS, PROPERTIES AND RECORDS.
(a) From and after the date of this Agreement, Seller shall
afford to the Purchaser and its officers, attorneys, accountants,
environmental consultants, and other authorized representatives of
Purchaser reasonable access to all offices, plants, properties,
equipment, files, contracts, agreements, books of account, tax returns
of Seller, and other books and records of Seller in order that
Purchaser may have the opportunity to make such further investigation
as it shall desire to make of the affairs of Seller, and Purchaser
shall be permitted to make extracts from, or copies of, such books and
records; and Seller shall furnish or cause to be furnished to
Purchaser such financial and operating data and other information as
to the businesses and properties of Seller, including, but not limited
to, current operating information, financial statements, capital
budgets, management forecasts, ledgers, marketing
<PAGE>
reports, customer sales/revenue breakdowns, compensation levels of all
employees and employment agreements, personnel files and records,
vessel charter contracts, and basic and master agreements and owner
operating agreements as Purchaser shall reasonably request.
Notwithstanding the foregoing, Seller shall not be obliged to provide
access to Purchaser to any contracts which it is contractually bound
to keep confidential, provided that Seller shall inform Purchaser as
to the existence of such contractual requirement and shall use best
efforts to obtain a release from the same for the benefit of
Purchaser. If the transactions contemplated by this Agreement shall,
for any reason, not be consummated, then Purchaser will treat as
confidential all information received from Seller pursuant to this
Section 5 or otherwise and will return to Seller all documents
received or copies made by Purchaser in accordance herewith.
(b) The Seller agrees to replace or repair spare parts
customarily carried aboard the Vessels which are taken out of spare
and used as a replacement on any Vessel prior to delivery of such
Vessel to Purchaser hereunder.
6. CLOSING DATE.
The purchase and sale provided for in this Agreement shall take
place at the offices of Phelps Dunbar, L.L.P., counsel for Seller, at
10:00 a.m., Central time, on January 3, 1997 (such time and date being
herein called the Closing Date), or such earlier date as the parties
may mutually agree. Notwithstanding the foregoing, the Closing Date
may be postponed to 10:00 a.m., Central time, on a date on or before
January 31, 1997, at the request of Purchaser
<PAGE>
if Purchaser is unable to comply by the Closing Date with any of the
conditions referred to in Section 12 or 13 hereof, as the case may be,
or at the request of Seller if it is, after the exercise of best
efforts, unable, by January 3, 1997, to obtain the consent of the
Maritime Administration to the sale of the Vessels that are subject to
restrictions under a Capital Construction Fund, which are conditions
precedent to the obligation of the other party to close the
transaction (unless such conditions are waived by such other party).
7. INSTRUMENTS OF TRANSFER, ETC.
(a) Subject to the provisions of Section 7(c) hereof, the
sale and transfer of the Purchased Assets shall be made at Purchaser s
expense (except as otherwise provided in this Agreement) on the
Closing Date by bills of sale, assignments and other instruments of
conveyance and transfer as shall be appropriate to carry out the
intent of this Agreement and as shall be sufficient to convey to
Purchaser all the right, title and interest of Seller to, and the
right to full custody and control of, the Purchased Assets, free and
clear of any and all liens, charges, mortgages, encumbrances and
security interests whatsoever. All sales, use, and ad valorem taxes
and all filing and recording fees in connection with such instruments
of transfer shall be borne by Purchaser. In the case of assignment of
any right, contract, license, lease or other instrument requiring the
consent of another party thereto, Seller will use its best efforts to
obtain such consent prior to the Closing Date, subject to the
provisions of Section 7(f) hereof.
<PAGE>
i) Without limiting the generality of the foregoing,
Seller shall deliver the documents described
below, more specifically described and enumerated
in Schedule 7.1 hereto:
A. Customary bills of sale in recordable form,
transferring ownership of the Vessels owned
by it, including all appurtenances, stores,
outfitting, lubes, and fuel on board or on
shore or on order, broached or unbroached,
all navigational aids, and all spares on
board, warranting title to such Vessels, free
and clear of liens, mortgages, rights in rem
-- ---
or any other encumbrances whatsoever other
than certain trading restrictions as
specified in the respective schedules
attached hereto; and
B. Such other customary bills of sale,
assignments, documents and instruments as
more fully set forth in Schedule 7.1 hereto.
(ii) The Seller shall deliver any and all consents,
including resolutions and shareholder consents,
necessary for the sale and transfer of the
Purchased Assets and any and all consents,
permits, licenses, and other authorizations held
by Seller that are
<PAGE>
necessary for the continuing use and operation of
the Purchased Assets by the Purchaser as
contemplated hereby.
(b) On the Closing Date, Purchaser will deliver an
instrument substantially in the form of Schedule 7.2 hereto evidencing
its assumption of the obligations being assumed by it hereunder.
(c) Notwithstanding the foregoing, each Vessel to be
delivered hereunder shall be delivered to Purchaser at the time of
Closing on the Closing Date immediately following the receipt by
Seller of the funds to be wire transferred pursuant to Section 2(a) of
this Agreement, wherever the Vessel shall then be located, provided,
--------
however, that should such delivery be impossible or unsafe due to
------- ----
adverse weather conditions or some damage casualty to the Vessel in
question, such delivery shall be delayed until such adverse weather
subsides or such damage casualty is repaired. Seller warrants that
all of the Vessels are presently documented with the United States
Coast Guard. At the time of Closing, Seller shall furnish to its
counsel, viz: Phelps Dunbar, L.L.P., for each Vessel the original and
one copy of a duly executed Bill of Sale on the standard U.S. Coast
Guard form (CG-1340), in recordable form, which document shall be held
in escrow and in trust with respect to each respective Vessel pending
receipt of the cash consideration as specified in this contract with
respect to that Vessel. Phelps Dunbar, L.L.P., shall, upon receipt by
Seller of the stated consideration with respect to each such Vessel,
be fully authorized to deliver the documents with respect to that
particular Vessel in whatever manner and fashion and to whomever they
<PAGE>
deem appropriate. The original Certificate of Documentation of each
Vessel should either be aboard the Vessel or in the possession of
Phelps Dunbar, L.L.P., at the time of Delivery, and each such
Certificate of Documentation shall become the property of Purchaser at
the time of Delivery, with the understanding and agreement that such
Certificates of Documentation will be surrendered to the United States
Coast Guard at the time each Vessel is redocumented in the name of
Purchaser. In addition, Seller shall provide to Purchaser an opinion
of counsel for Seller in form and substance satisfactory to Purchaser.
(d) On the Closing Date, Seller will by appropriate
instrument constitute and appoint Purchaser, its successors and
assigns, and its true and lawful attorney or attorneys, with full
power of substitution, in the name of Seller but on behalf of and for
the benefit of and at the expense of Purchaser, to institute,
prosecute, defend, and compromise any and all actions, suits, or
proceedings in respect of any Purchased Asset, but only if and to the
extent that Seller does not or cannot, after demand and presentment,
indemnify Purchaser against any occurrence indemnifiable pursuant to
Section 14(b) hereof. The foregoing power is coupled with an interest
and shall be irrevocable by Seller or by its dissolution or in any
manner or for any reason. Purchaser shall retain for its own account
any amounts collected pursuant to the foregoing powers, including any
sums payable as interest in respect thereof, and Seller will pay to
Purchaser, when received, any amounts which shall be received by
Seller in respect of Purchaser's efforts pursuant to this paragraph.
<PAGE>
(e) At any time and from time to time after the Closing
Date, Seller will, upon the request and at the expense of Purchaser
(except as to subsequent deeds as provided in paragraph (c) above),
do, execute, acknowledge and deliver, or will cause to be done,
executed, acknowledged or delivered, all such further acts, deeds,
assignments, transfers, conveyances, powers of attorney or assurances
as may be required for the better assigning, transferring, granting,
conveying, assuring and confirming to Purchaser, or for aiding and
assisting in the collection of or reducing to possession by Purchaser,
any of the Purchased Assets.
(f) Nothing contained in this Agreement shall be construed
as an attempt to assign (i) any contract which is in law nonassignable
without the consent of the other party or parties thereto unless such
consent shall have been given, or (ii) any contract or claim as to
which all the remedies for the enforcement thereof enjoyed by Seller
would not, as a matter of law, pass to Purchaser as an incident of the
assignments provided for by this Agreement. In order, however, that
the full value of every contract and claim of the character described
in clauses (i) and (ii) of the preceding sentence and all claims and
demands on such contracts may be realized, Seller, by itself or by its
agents, will, at the request and expense and under the direction of
Purchaser, in the name of Seller or otherwise as Purchaser shall
specify and as shall be permitted by law, take all such actions and do
or cause to be done all such things as shall in the opinion of
Purchaser be necessary or proper (x) in order that the rights and
obligations of Seller under such contracts shall be preserved and (y)
for, and to facilitate, the
<PAGE>
collection of the moneys due and payable, and to become due and
payable, to Seller in and under every such contract and claim and in
respect of every such claim and demand, and Seller shall hold the same
for the benefit of and shall pay the same over to Purchaser. The
foregoing covenant shall survive indefinitely.
8. OTHER ACTIONS BY THE SELLER AND THE STOCKHOLDERS.
The Purchaser reserves the right to retain the names of all
acquired Vessels.
9. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby represents and warrants to, and covenants and
agrees with, Purchaser, as of the date hereof and as of the Closing
Date, that:
(a) Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Louisiana, having its principal place of business and its registered
office at 115 Landry Street, P.O. Box 189, Patterson, Louisiana 70392.
Seller has full power and authority to own or hold its properties and
to conduct its business as presently conducted. Seller is licensed or
qualified to do business as a foreign corporation or entity, as the
case may be, and in good standing in all jurisdictions wherein its
failure to be so licensed or qualified would have a material adverse
effect on the Purchased Assets.
(b) The execution and delivery of this Agreement by Seller,
the performance by Seller of its covenants and agreements hereunder
and the consummation by Seller of the transactions contemplated hereby
have been duly authorized by all necessary actions (corporate and
other) of Seller. This Agreement has been duly executed and delivered
by Seller and the
<PAGE>
Stockholders and constitutes a valid and legally binding obligation of
Seller and each Stockholder, enforceable against Seller and each
Stockholder in accordance with its terms.
(c) Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, violates
any provision of the articles of incorporation or by-laws of the
Seller or any applicable statute, ordinance, regulation, order,
judgment or decree of any court or governmental agency, or conflicts
with or will result in any breach of, or accelerate the performance
required by, any of the terms of or constitute a default under or
result in the termination of or the creation of any lien pursuant to
the terms of any contract or agreement to which the Seller is a party
or by which it or any of the Purchased Assets is bound.
(d) Ninety-four and one-half percent (94.5%) of the
outstanding shares of capital stock of Seller is owned by the
Stockholders. All of the outstanding shares of capital stock of the
Seller have been validly issued and are fully paid and non-assessable.
There are no subscriptions, warrants, options, calls, commitments or
agreements to which Seller is bound relating to the issuance or sale
of shares of its capital stock or other securities.
(e) The Purchased Assets include all of the vessels of
Seller, along with the related operating assets of Seller, excluding
real property, used in or related in any way to the offshore service
business of Seller as presently conducted, and such assets constitute
substantially all of the assets used by Seller during the last three
fiscal years in the conduct of such business. Seller has good and
marketable title to the Purchased Assets owned by it, free
<PAGE>
and clear of any defect in title and free and clear of all liens,
charges, encumbrances, mortgages or security interests whatsoever,
except as set forth in Schedule 7.1. Seller has the right to sell and
transfer its Purchased Assets to Purchaser, and upon transfer of the
Purchased Assets to Purchaser pursuant hereto, Purchaser will acquire
good and marketable title and all of Seller s right, title, and
interest in and to the Purchased Assets, free and clear of any defect
in title and free and clear of all liens, charges, encumbrances,
mortgages, or security interests whatsoever, except for certain
trading restrictions imposed on some of the Vessels and set forth in
Schedule 7.1. All of the Vessels have valid USCG Certificates of
Inspection, and the Vessels designated in Part II of Schedule 7.1 as
ABS classed, are in class as provided in said Schedule, free of
recommendations.
(f) Seller delivered to Purchaser its balance sheet as of
December 31, 1995, together with the related statements of operations,
retained earnings and changes in financial position, including the
notes thereto, if any, all for the year then ended, which audited
financial statements have been reported on by Wegmann-Dazet and
Company, the certified public accountants for Seller (such financial
statements are herein referred to as the "Financial Statements"). The
Financial Statements are true and correct in all material respects and
have been prepared in accordance with generally accepted accounting
principles applied consistently throughout the periods involved. The
Financial Statements fully and fairly present the financial condition
of the Seller in all material respects as of the dates thereof and the
results of the operations of Seller for the periods indicated. The
balance sheets constituting a part of
<PAGE>
each of the Financial Statements fairly reflects all liabilities of
the Seller of the types normally reflected in balance sheets as at the
date thereof. True, correct and complete copies of each of the
Financial Statements have been delivered to Purchaser.
(g) Except as set forth in Schedule 9.1 or, as to events
occurring after the date of this Purchase Agreement, in an addendum to
Schedule 9.1 to be filed on the Closing Date, subsequent to September
30, 1996, and, in the case of Purchased Assets, since the date that
Purchaser inspected those Purchased Assets, there has not been any (i)
material adverse change or prospective change in the condition of the
Seller, financial or otherwise, or in the results of its operations;
(ii) material damage or destruction (whether or not insured) affecting
the Purchased Assets or the business operations of Seller; (iii) labor
dispute or, to the best of the knowledge of the Seller, threatened
labor dispute involving any of the employees of the Seller; (iv)
actual or, to the best of the knowledge of the Seller, threatened
dispute pertaining to the business with any major supplier or customer
of Seller; or (v) other event or condition of any character, known to
the Seller or which in the exercise of reasonable diligence should be
known to it, not disclosed in this Agreement pertaining to and
materially adversely affecting the business.
(h) Seller has filed or caused to be filed all Federal,
state, municipal and other tax returns, reports and declarations
required to be filed by it and, where applicable, has paid or reserved
(as reflected on the balance sheet in accordance with generally
accepted accounting principles) for any and all taxes, imposts,
assessments, levies, or other
<PAGE>
governmental charges of any kind whatsoever, including, but not
limited to, income, franchise, sales, use, ad valorem, unemployment,
withholding, social security, worker s compensation and estimated
income and franchise taxes (including any interest, penalty, fine or
addition thereto) ("Taxes") which have been or shall become due with
respect to all taxable periods ending at or prior to the date hereof
(and will pay or reserve (in accordance with generally accepted
accounting principles) for all taxes which shall become due with
respect to all taxable periods, or portion thereof, ending at or prior
to the Closing Date). No deficiency in payment of any Taxes for any
period, except as listed on Schedule 9.2(a) and for which scheduled
deficiencies the Seller has set aside adequate reserves, has been
asserted by any taxing authority which remains unsettled at the date
hereof. Seller has not been (nor with notice or lapse of time or
both, would be) in violation of any applicable law relating to the
payment or withholding of Taxes. Seller has duly and timely withheld
from (x) all employee salaries, wages, and other compensation and (y)
all other payments, and paid over to the appropriate taxing
authorities, all amounts required to be so withheld and paid over for
all periods under all applicable laws. None of the Purchased Assets
is an asset or property that is or will be required to be treated as
being (i) owned by any Person (other than the Purchaser) pursuant to
the provisions of Section 168(f)(8) of the Internal Revenue Code of
1954, as amended and in effect immediately before the enactment of the
Tax Reform Act of 1986, or (ii) tax-exempt use property within the
meaning of Section 168(h)(1) of the Internal Revenue Code of 1986, as
amended. Set forth in Schedule 9.2(b) is an itemization of all taxes
other than income taxes
<PAGE>
which are due or shall become due with respect to all taxable periods
ending on or prior to the Closing Date.
(i) Annexed hereto as Schedule 9.3 is a list of all
policies of liability, theft, environmental liability, fidelity, life,
fire, casualty, hull, marine protection and indemnity and other forms
of insurance held by Seller and relating to its business (specifying
the type of coverage, insurer, policy number, policy period and named
insured). All such policies are in full force and effect and all
premiums due thereon prior to or on the Closing Date have been paid.
Seller has complied in all material respects with the provisions of
such policies. Seller has endeavored to place all policies of
insurance held by them with solvent underwriters.
(j) Set forth in Schedule 3.1 are a list and brief
description of (i) all charters, contracts, agreements, licenses,
leases, arrangements (written or oral) and other documents to which
Seller is a party or by which Seller or any of its assets is bound and
which are to be assigned to, and assumed by, Purchaser pursuant to
this Agreement; and (ii) obligations and liabilities of Seller
pursuant to uncompleted orders for the purchase of materials,
supplies, equipment and services for the requirements of the conduct
of business with respect to which the remaining obligation of Seller
is in excess of $5,000 in the aggregate and which are to be assigned
to, and assumed by, Purchaser pursuant to this Agreement (which
Schedule shall be updated as of December 31, 1996, as appropriate).
Seller is not in default in the performance of any covenant or
condition under any of the aforementioned contracts and, to the
knowledge of the Seller after reasonable inquiry, no claim of such a
default has been
<PAGE>
made. To the knowledge of the Seller, no other party thereto is in
default in the performance of any covenant or condition under any of
the aforementioned agreements.
(k) Set forth in Schedule 9.4(a) is a list of all
agreements between Seller and the employees of Seller with regard to
compensation, whether individually or collectively, except oral
agreements terminable by Seller on not more than 30 days notice
without penalty, and set forth in Schedule 9.4(b) attached hereto is a
list of all (i) employees of Seller and their respective positions,
job categories, years of service, and salaries; and (ii) agents or
other representatives retained or utilized by Seller and the basis on
which they are compensated. All employees who are absent from active
employment (by reason of disability, leave of absence, maintenance and
cure, or otherwise) are separately listed on Schedule 9.4(c). There
are no collective bargaining, employment, consultancy or similar
agreements with respect to current or former employees of the
business. No union or other collective bargaining unit has been
certified or recognized by Seller as representing any of its
employees.
(l) Except as set forth on Schedule 9.5, there are no
pending or, to the best knowledge of the Seller, threatened (A)
strikes, work stoppages, slowdowns, grievances or other labor disputes
with respect to any employees of the Seller or (B) complaints or
charges with any federal, state or local governmental agency or court,
with respect to any employees of the business.
(m) i) Set forth in Schedule 9.6(a) is a list of all
Environmental Permits held by Seller pursuant to or required by any
Environmental Law to operate the Purchased
<PAGE>
Assets and operations of the Seller in the manner in which they have
heretofore been operated. ii) Except as set forth in
Schedule 9.6(b): (A) the Purchased Assets and operations of the Seller
that are being purchased by the Purchaser comply with all such
Environmental Permits and the Environmental Laws; (B) neither any of
the Purchased Assets nor any of the operations of the Seller that are
being purchased by Purchaser is subject to or has given or, insofar as
Seller can reasonably foresee, may give rise to Environmental Costs
and Liabilities; (C) neither the Seller nor any predecessor of the
Seller nor any Purchased Asset or operation of the Seller purchased by
the Purchaser is subject to any outstanding written Order or Contract
respecting any Environmental Laws; (D) there are no investigations or
judicial or administrative proceedings under any Environmental Law
pending or, to Seller s knowledge after reasonable inquiry, threatened
against the Seller or any of the Purchased Assets or any of the
operations of the Seller; (E) neither the Seller nor any operator,
lessee, or prior owner or operator of any of the Purchased Assets or
operations of the Seller being purchased by the Purchaser has stored,
treated, disposed of, transported, or arranged for the disposal of any
Hazardous Material; (F) there are not now, nor, to the knowledge of
the Seller, have there ever been, any underground storage tanks,
aboveground storage tanks, dikes or impoundments, any asbestos-
containing materials, any polychlorinated biphenyls, or any
radioactive substances on, in or under any real property owned, leased
or operated by the Seller or any of its predecessors; and (G) no lien
in favor of any governmental authority for any liability under any
Environmental Law, or for damages arising from or costs incurred by
<PAGE>
such governmental authority in response to a Release of a Hazardous
Material into the environment, has been filed or attached to any of
the Purchased Assets or any of the locations upon which the operations
of the Seller are conducted. Purchaser shall not incur Environmental
Costs and Liabilities in excess of $5,000 in the aggregate to obtain
the stormwater permit, oil spill contingency plan, or hazard
communication program listed on Schedule 9.6(b).
(iii) For the purpose of this Section 9(m):
(A) Contract means any oral or written contract,
agreement, or other arrangement;
(B) Environmental Costs and Liabilities means any
and all losses, liabilities, whether known or
unknown, liquidated or contingent, obligations,
damages, fines, penalties, judgments, actions,
claims, costs and expenses (including, without
limitation, fees, disbursements and expenses of
legal counsel, experts, engineers and consultants
and the costs of investigation and feasibility
studies and remedial action under any
Environmental Law) arising from or under any
Environmental Law;
(C) Environmental Law means any federal, state,
local, or foreign law (including common law),
relating to the environment, natural resources, or
public or employee health and safety and includes,
<PAGE>
but is not limited to, the Comprehensive
Environmental Response, Compensation and Liability
Act ("CERCLA"), 42 U.S.C. ss. 9601 et seq., the
-- ----
Hazardous Materials Transportation Act, 49 U.S.C.
ss. 1801 et seq., the Resource Conservation and
-- ----
Recovery Act ("RCRA"), 42 U.S.C. ss. 6901 et seq.,
-- ----
the Clean Water Act, 33 U.S.C. ss. 1251 et seq., the
-- ----
Clean Air Act, 42 U.S.C. ss. 7401 et seq., the Toxic
-- ----
Substances Control Act, 15 U.S.C. ss. 2601 et seq.,
-- ----
the Oil Pollution Act of 1990, 33 U.S.C. ss. 2701
et seq., the Federal Insecticide, Fungicide, and
-- ----
Rodenticide Act, 7 U.S.C. ss. 136 et seq., and the
-- ----
Occupational Safety and Health Act, 29 U.S.C. ss.
651 et seq., as such laws have been amended or
-- ----
supplemented, and the regulations promulgated
pursuant thereto, and all analogous state, local
or foreign statutes;
(D) Environmental Lien means any lien in favor of
any governmental authority arising under
Environmental Laws;
(E) Environmental Permit means any permit, approval,
authorization, license, variance, registration, or
permission required under any applicable
Environmental Law or Order;
<PAGE>
(F) Hazardous Material means any substance, material
or waste which is regulated by any governmental
authority, including, without limitation, any
material, substance or waste which is defined as a
hazardous waste, hazardous material,
hazardous substance, extremely hazardous
waste, restricted hazardous waste,
contaminant, toxic waste or toxic substance
or any analogous term under any provision of
Environmental Law, which includes, but is not
limited to, petroleum, asbestos, and
polychlorinated biphenyls;
(G) Order means any order, injunction, judgment,
decree, ruling, assessment or arbitration award;
(H) Release means any release, spill, emission,
leaking, pumping, pouring, dumping, emptying,
injection, deposit, disposal, discharge,
dispersal, leaching, or migration on or into the
indoor or outdoor environment or into or out of
any property.
(n) Set forth in Schedule 9.7(a) is a list and brief
description of all of the patents, registered and common law
trademarks, service marks, trade names, copyrights, licenses and other
similar rights of Seller and applications for each of the foregoing
(the "Intellectual Property"). The Seller owns all right, title and
interest in and to all the Intellectual Property. The Intellectual
Property so listed constitute all the proprietary rights
<PAGE>
necessary to the conduct of the business of Seller as currently
conducted; no adverse claims have been made and no dispute has arisen
with respect to any of the Intellectual Property; and the operations
of Seller and the use by Seller of such Intellectual Property do not
involve claimed infringement of any patent, trademark, service mark,
trade name, copyright, license or similar right. Except as set forth
in Schedule 9.7(b), no persons or businesses otherwise using any of
the Intellectual Property have ever attempted to restrain Seller from
using the Intellectual Property.
(o) Set forth in Schedule 9.8 is a list and brief
description of all pending litigation involving Seller or any of the
Purchased Assets. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of the officers of Seller
after reasonable inquiry, threatened against or affecting Seller, at
law, or in equity or admiralty, or before or by any Federal, state,
municipal or other governmental department, commission, board, bureau,
agency or instrumentality, or the likelihood of any injunction or
order which, individually or in the aggregate, may result in any
material adverse change in the business, operations or properties of
Seller or which could result in a lien, claim, or judgment against any
Purchased Asset (except for lawsuits and threatened lawsuits listed on
Schedule 9.8 involving claims that could result in a lien on a Vessel
by operation of law) or which could prevent or jeopardize the
transactions contemplated hereby. Seller is not, to the knowledge of
any officer thereof after reasonable inquiry, in violation of or
default with respect to any statute, ordinance, regulation, permit,
order, writ, injunction or decree of any court or
<PAGE>
Federal, state or local governmental agency or instrumentality,
violation of which would result in a material adverse change in the
business, operations or properties of Seller or which could prevent or
jeopardize the transactions contemplated hereby. In the operation of
its business, the Seller has complied with all laws relating to the
employment of labor, including any provisions thereof relating to
wages, hours, collective bargaining and the payment of social security
and similar taxes, and Seller is not liable for any arrearages of
wages or any taxes or penalties for failure to comply with any of the
foregoing.
(p) The Seller is a citizen of the United States within the
meaning of Section 2 of the Shipping Act, 1916, as amended, qualified
to engage in the coastwise trade, and is not a foreign person within
the meaning of Sections 897 and 1445 of the Internal Revenue Code of
1986, as amended.
(q) No consent, approval or authorization of, or
declaration or filing with any governmental authority is required on
the part of Seller in connection with the execution, delivery and
performance of this Agreement and consummation of the transactions
contemplated hereby, except (i) for any asset transfer notification
filings required by Title II of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, 15 U.S.C.A. Section 18a(c)(8), as amended,
which have been filed; (ii) the consent of the Maritime Administration
("Marad") to the transfer of any vessels which are subject to a
Capital Construction Fund Agreement with Marad; and (iii) the consent
of all appropriate agencies to the assignment of any permits necessary
for use of the Purchased Assets or operation of the business of the
Seller, as listed in
<PAGE>
Schedule 9.9. Seller is in compliance with each Capital Construction
Fund Agreement to which it is a party without default thereunder.
Schedule 9.10 sets forth for each Vessel subject to a trading
restriction under any Capital Construction Fund Agreement or related
agreement by Vessel, the expiration date of the trading restriction,
the number of years each such trading restriction applies to said
Vessel and the aggregate amount of qualified withdrawals applicable to
each such Vessel.
(r) Seller has provided to Purchaser within the time
required by the Letter of Intent dated as of October 24, 1996,
between, inter alia, the Purchaser and Seller all information required
----- ----
to be provided pursuant to said Letter of Intent and such additional
information as Purchaser has requested, including the following
information:
(i) a list of all drydockings due and the date due
within twelve months following October 24, 1996;
(ii) a summary of all maintenance and repair expenses
for the last three (3) years, reports or
information on drydockings performed in the last
three (3) years, and a list by vessel of engine
change outs ;
(iii) a list of all spares, fuel, lubricants, and
inventories both on the Vessels and ashore,
primarily relating to, but not limited to, the
vessels, and the vessel charter agreements that
set forth the fuel and lubricants owned by Seller
with respect to each such Vessel;
<PAGE>
(iv) notice of any lawsuits;
(v) a description of current insurance policies,
including the premiums and deductibles under such
policies and a schedule of all claims made against
such policies for the three years prior to the
date of this Agreement;
(vi) complete copies of all Capital Construction Fund
Agreements to which the Seller is party;
(vii) copies of United States Coast Guard
Certificates of Inspection and ABS Loadline
and Hull and Machinery Certificates for each
Vessel having such certificates, and a list
of all Vessels that do not have such
certificates;
(viii) any orders, permits, or licenses;
(ix) a list of customers for each vessel, and customer
rankings by revenue for 1994, 1995, and 1996
through October 31;
(x) lost time accident statistics for the three (3)
year period ending on the date of this Agreement;
(xi) a schedule of administrative employees (i.e., non-
seagoing employees) of the Seller, listed by name,
position, years of service, and location;
(xii) copies of the Seller s medical and dental
plans;
<PAGE>
(xiii) a schedule of vehicles, if any, included in
the Purchased Assets, including description,
vehicle ID number, and mileage;
(xiv) the 1993, 1994, and 1995 audited financial
statements for the Seller;
(xv) copies of any equipment or other lease agreements
to which the Seller is party;
(xvi) copies of all pleadings relating to any
outstanding lawsuits, copies of any
outstanding judgments, copies of any
settlement agreements or court or
administrative orders requiring continuing or
future action or payment by the Seller,
copies of any notices of potential litigation
or notices of actual or potential violations
of any law or regulation by the Seller;
(xvii) copies of all permits, licenses, or other
papers required by any governmental authority
and held by Seller;
(xviii) a schedule setting forth all employees of the
Seller who are presently either unfit for
duty, restricted to light duty, or who have
lawsuits pending against the Seller;
(xix) a schedule setting forth all non-employees
who have health insurance coverage through
the Seller;
<PAGE>
(xx) copies of all current vessel charter parties and a
schedule of all written or verbal charter rate
commitments for each Vessel and the length of time
each rate is held firm; and
(xxi) a copy of the Supply Boat s construction
contract and copies of all paid invoices,
written change orders, all vessel drawings
and specifications, and all agreements
regarding options on further vessels.
(s) No representation or warranty made under any Section
hereof and none of the information furnished by Seller or the
Stockholders set forth herein, in the exhibits hereto or in any
document delivered by Seller or the Stockholders to Purchaser, or any
authorized representative of Purchaser, pursuant to this Agreement
contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements herein or therein not
misleading.
(t) Sales and Use Taxes: Any sales or use taxes payable as
a result of the sale of the Purchased Assets pursuant to this
Agreement shall be for Purchaser s account. Seller represents and
warrants that it is engaged primarily in the offshore service vessel
industry, and that it is not now nor has it been in the past, engaged
in the business of purchase and sale of vessels and related equipment.
Any previous sales of vessels and related property made by Seller have
been sales of depreciated, obsolete, or surplus vessels or equipment
as an
<PAGE>
incident of the business described above, and Seller has never been
assessed, or required to remit, sales taxes in connection with any
such sale.
10. REPRESENTATIONS AND COVENANTS OF PURCHASER.
Purchaser represents and warrants to, and covenants and agrees
with, Seller, as of the date hereof and as of the Closing Date, that:
(a) Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
and has full corporate power and authority to acquire the Purchased
Assets and to assume the obligations provided for in this Agreement.
(b) The execution and delivery of this Agreement by
Purchaser, the performance by Purchaser of its covenants and
agreements hereunder and the consummation by Purchaser of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Purchaser. This Agreement
has been duly executed and delivered by Purchaser and constitutes a
valid and legally binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms.
(c) Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, violates
any provision of the certificate of incorporation or by-laws of
Purchaser or any applicable statute, ordinance, regulation, order,
judgment or decree of any court or governmental agency, or conflicts
with or will result in any breach of, or accelerate the performance
required by, any of the terms of or constitute a default under or
result in the termination of or the creation of any lien pursuant to
the terms
<PAGE>
of any contract or agreement to which Purchaser is a party or by which
Purchaser or any of its assets is bound.
(d) Purchaser is a citizen of the United States within the
meaning of Section 2 of the Shipping Act, 1916, as amended.
(e) No consent, approval or authorization of, or
declaration or filing with any governmental authority is required on
the part of Purchaser in connection with the execution, delivery and
performance of this Agreement, except for any asset transfer
notification filings required by Title II of the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, 15 U.S.C.A. Section 18a(c)(8) as
amended, which have been filed.
(f) Purchaser will cooperate fully with Seller to obtain
any and all approvals and consents necessary to effect the
transactions contemplated by this Agreement.
(g) Purchaser either has, or has firm commitments to
obtain, all of the cash to be used for the purchase price.
(h) Purchaser has inspected those Vessels listed on
Schedule 10.1 hereto as of the dates indicated on the foregoing
schedule and, at the Closing, shall indicate in an addendum to
Schedule 10.1 the dates of inspection of all other Vessels to be
acquired from Seller.
11. SELLER S COVENANTS PRIOR TO CLOSING.
Prior to the Closing Date, Seller covenants and agrees with
Purchaser as follows:
<PAGE>
(a) Seller shall conduct its business and operations in the
ordinary course and in substantially the same manner in which they
have in the past been conducted and will use its reasonable efforts to
maintain, preserve and protect the Purchased Assets (including
goodwill) until closing; such conduct shall include but not be limited
to:
(i) Seller will follow all normal drydock and
maintenance practices and replacement of spares in
operating its fleet and will not defer any
maintenance;
(ii) Seller will maintain continuity in its personnel
practices and procedures and will promptly notify
Purchaser if a key employee gives notice of leave;
(iii) Seller will provide prior notification to
Purchaser in the event a Vessel will be
drydocked;
(iv) Seller will notify Purchaser of its knowledge
after reasonable inquiry of the occurrence of any
insurable event;
(v) Seller will notify Purchaser promptly if it learns
of any actual or potential lawsuit, court order,
settlement, investigation by any governmental
authority, or administrative action, including any
notice of violation or potential violation of any
law or regulation that may materially affect any
of the assets of or the value of any of the assets
of the Seller;
<PAGE>
(vi) Seller will not incur liabilities other than
in the ordinary course of business or enter
into charters for its Vessels which have a
term of longer than six months without first
obtaining the prior written agreement of
Purchaser, which consent will not be
unreasonably withheld;
(vii) Seller will use its best efforts to preserve
its respective present business organizations
intact and keep available the services of its
present employees, but Seller will not
materially change the employment arrangements
for those employees other than in the
ordinary course;
(viii) Seller will not make any material changes in
its customary method of operations, including
marketing and pricing policies and
maintenance of business premises, fixtures,
furniture, equipment and Vessels, except that
Seller shall terminate its vacation policy
effective on the close of business on
December 31, 1996;
(ix) Seller will not modify, amend or cancel any
existing contracts or leases which are included in
Purchased Assets or which are to be assumed by
Purchaser in accordance with this Agreement;
<PAGE>
(x) Seller will pay all amounts payable by it under
any contract, order or other undertaking timely
and in the ordinary course of business;
(xi) Seller agrees not to use any proceeds of any
Capital Construction Fund for any vessel presently
under construction or for any other new vessel;
and
(xii) Seller will not take any action which would
make any of the representations and
warranties in this Agreement untrue at
Closing Date.
Seller further agrees that it will not enter into any contract
for the sale, refinancing or chartering for more than six months of
any of the Purchased Assets without first obtaining Purchaser s prior
written consent, which consent shall not be unreasonably withheld.
Seller shall maintain its books and records in a manner that fairly
represents its income, expenses and liabilities and make those books
and records available to Purchaser during reasonable business hours.
(b) Seller shall permit Purchaser and its representatives
access to inspect and survey the Vessels upon reasonable notice and at
times reasonably convenient to Seller and its customers. Seller
agrees to cooperate to make any Vessel available on a reasonable basis
and cooperate in accessing voids and other reasonable areas
customarily inspected on vessels and to make the Vessels current log
books available for Purchaser s inspection.
<PAGE>
(c) Purchaser and Seller agree that Purchaser and its
representatives intend to drydock vessels constituting not more than
20% of the Seller s fleet. If Purchaser wishes to drydock a Vessel or
Vessels not already scheduled to be drydocked in the normal course of
Seller s business, then Seller agrees to cooperate with Purchaser.
The cost of such drydocking shall be for Purchaser s account but the
cost of moving such Vessel or Vessels to the dock shall be for the
Seller s account. Whenever practicable, drydockings will be performed
at facilities customarily utilized by Seller for drydocking vessels.
(d) Seller shall permit Purchaser to conduct such due
diligence following the date of execution of this Agreement and
continuing until the Closing Date as Purchaser deems necessary in
either of the following events: (i) on or after October 24, 1996,
there has been a material change in the business of the Seller or an
event has occurred that could reasonably be expected to have a
material effect on the Seller s business or on the value of any of the
assets to be acquired by Purchaser; or (ii) Purchaser is required to
obtain further information from Seller in order to obtain any
government approval necessary for the consummation of the transactions
contemplated by this Agreement or for Purchaser s use of the assets to
be acquired from Seller. Seller shall cooperate with Purchaser in the
conduct of any due diligence under this subsection (d) by providing to
Purchaser, as soon as practicable following a request for information,
such information as is reasonably available to it.
<PAGE>
(e) Seller shall maintain in full force and effect through
the Closing Date all of its presently existing insurance coverage, or
insurance comparable to such existing coverage.
(f) On or before the Closing Date, as required by law or
regulation, Seller shall have notified the appropriate authorities of
its intent to transfer to the Purchaser any permits necessary for the
operation and use of the Purchased Assets and the business of the
Seller. Seller agrees to cooperate with Purchaser in (i) identifying
any and all permits required by Purchaser to operate the business of
the Seller from and after the Closing Date and (ii) either
transferring such existing permits of Seller to Purchaser or obtaining
such new permits as Purchaser requires. Seller shall use its best
efforts to obtain, prior to the Closing Date, all necessary permits,
approvals and consents required in order to effect the transactions
contemplated hereby and to permit Purchaser to use the Purchased
Assets as they have heretofore been used, including but not limited to
consents or approvals required by the U.S. Maritime Administration,
U.S. Environmental Protection Agency, and any other governmental
authority, lessors or any other parties to contracts, leases, permits,
licenses or agreements to be assigned pursuant to this Agreement.
Seller agrees to cooperate fully with Purchaser to ensure that any
consent required from the U.S. Maritime Administration is satisfactory
to Purchaser.
<PAGE>
12. CONDITIONS TO OBLIGATIONS OF PURCHASER.
The obligations of Purchaser under this Agreement are, at the
option of Purchaser, subject to the conditions that:
(a) All the terms, covenants and conditions of this
Agreement to be complied with and performed by Seller on or before the
Closing Date shall have been fully complied with and performed in all
material aspects.
(b) The representations and warranties made by Seller
herein shall be correct in all respects, on and as of the Closing
Date, with the same force and effect as though such representations
and warranties had been made on and as of the Closing Date.
(c) On or before the Closing Date, Seller shall have
obtained all approvals or consents necessary for the consummation of
the transactions contemplated hereby, including:
(i) the consent of Marad to the transfer of any
Vessels which are subject to a Capital
Construction Fund Agreement with Marad;
(ii) the consent of all appropriate agencies to the
assignment or transfer to the Purchaser of any
permits necessary for use of the Purchased Assets
or operation of the business of the Seller. Also
on or before the Closing Date, any waiting period
prescribed by Title II of the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, 15 U.S.C.A.
Section 18a(c)(8), as amended ("H-S-R"), shall
have been waived by the United States or shall
have expired
<PAGE>
without further investigation or commencement of
judicial proceedings, provided, however, that if
-------- -------
any such investigation or judicial proceedings are
initiated, the same shall have been finally
concluded and resolved to the satisfaction of both
parties, provided further, however, that, if the
-------- ------- ------- ----
United States conditions approval of the
transactions contemplated by this Agreement upon
the taking of any additional actions, including
but not limited to divestiture of any vessels or
other assets, by Purchaser or any affiliated
entity, then Purchaser, at its option, shall
either:
(A) notify Seller of its intent not to go forward
with the transactions contemplated by this
Agreement, in which case Seller shall be
released from its obligation under the Letter
of Intent to refrain from soliciting,
encouraging, initiating, or negotiating any
offers or proposals relating to the Seller s
assets from third parties; or
(B) notify Seller of its intent to go forward
with the transactions contemplated by this
Agreement; and
(iii) such other consents as are referred to in
Section 7 hereof and in Schedule 7.1 and 9.9
hereof.
<PAGE>
(d) Purchaser shall have received an opinion of Phelps
Dunbar, L.L.P., counsel for Seller, dated the Closing Date, in form
and substance satisfactory to Purchaser and its counsel.
(e) Seller shall have furnished Purchaser with a
certificate, dated the Closing Date, which shall state that (i) all
the terms, covenants and conditions herein to be performed or complied
with by it on or before the Closing Date have been fully performed or
complied with and (ii) the representations and warranties made by it
herein are correct, on and as of the Closing Date, with the same force
as though such representations and warranties had been made on and as
of the Closing Date.
(f) No action, suit or proceeding against Seller, the
Stockholders, or Purchaser relating to the consummation of any of the
transactions contemplated by this Agreement nor any governmental
action seeking to delay or enjoin any such transactions shall be
pending or threatened.
(g) The transactions contemplated by that purchase agreement,
dated of even date herewith, among Acadian Offshore Services, Inc.,
Galaxie Marine Service, Inc., Moonmaid Marine, Inc., and Triangle
Marine, Inc., shall have been consummated as of the Closing Date.
13. CONDITIONS TO OBLIGATIONS OF SELLER.
The obligations of Seller under this Agreement are, at its
option, subject to the conditions that:
(a) All the terms, covenants and conditions of this
Agreement to be complied with and performed by Purchaser on or before
the Closing Date shall have been fully complied with and performed in
all material respects.
<PAGE>
(b) The representations and warranties made by Purchaser
herein shall be correct in all material respects on and as of the
Closing Date, with the same force and effect as though such
representations and warranties had been made on and as of the Closing
Date.
(c) On or before the Closing Date, Seller shall have
obtained all necessary governmental approvals or consents necessary
for the consummation of the transactions contemplated hereby.
(d) Seller shall have received opinions, dated as of the
Closing Date, from Fort & Schlefer, L.L.P., and Lugenbuehl, Burke,
Wheaton, Peck, Rankin & Hubbard, counsel for Purchaser, in form and
substance satisfactory to Seller and its counsel.
(e) Purchaser shall have furnished Seller with a
certificate, dated the Closing Date, which shall state (i) all the
terms, covenants, and conditions herein to be performed or complied
with by Purchaser on or before the Closing Date have been performed or
complied with and (ii) the representations and warranties made by
Purchaser herein are correct, on and as of the Closing Date, with the
same force and effect as though such representations and warranties
had been made on and as of the Closing Date.
(f) No action, suit or proceeding against Seller, the
Stockholders, or Purchaser relating to the consummation of any of the
transactions contemplated by this Agreement nor any governmental
action seeking to delay or enjoin any such transactions shall be
pending or threatened.
<PAGE>
(g) The transactions contemplated by that purchase agreement,
dated of even date herewith, among Acadian Offshore Services, Inc.,
Galaxie Marine Service, Inc., Moonmaid Marine, Inc., and Triangle
Marine, Inc., shall have been consummated as of the Closing Date.
14. SURVIVAL OF AGREEMENT; DEFENSE OF CLAIMS BY THIRD PARTIES.
(a) This Agreement, including the covenants,
representations and warranties contained herein or in any certificate
delivered pursuant hereto and the indemnities provided for herein,
shall survive the closing hereunder, provided, however, that no claim
-------- -------
for indemnification under Section 14 of this Agreement, except for
claims relating to title to the Purchased Assets or
personal injury claims on which the statute of
limitations or repose does not begin to run until discovery
by the person asserting the claim, shall be made more than six (6)
years after the Closing Date.
(b) Seller Indemnification. The Seller hereby agrees to
----------------------
indemnify the Purchaser and its affiliates against, and to hold the
Purchaser and its affiliates harmless from:
(i) any and all claims, demands, damage, loss,
liability (whether fixed or contingent, known or
unknown) and expense (including reasonable
expenses of investigation and reasonable
attorneys fees and expenses in connection with
any action, suit or proceeding) (collectively,
"Damages") arising out of or resulting from the
ownership of the Purchased Assets or the operation
of the Seller s business prior to the Closing
Date;
<PAGE>
(ii) the failure of any of the representations and
warranties made by Seller in this Agreement to
have been true when made and as of the Closing
Date;
(iii) the failure of Seller to comply with or
perform any covenant or agreement made or to
be performed by Seller pursuant to this
Agreement;
(iv) any and all Environmental Costs and Liabilities
based upon, attributable to, arising out of or
resulting from, property owned, operated, or
leased by Seller or its facilities or operations
conducted prior to the Closing Date, or, in the
case of Vessels, prior to delivery thereof
pursuant to this Agreement;
(v) the failure of the Seller to comply with, or to
provide notice with respect to, the bulk transfer
laws of any jurisdiction in connection with the
transactions contemplated by this Agreement; and
(vi) any and all Retained Liabilities, including any
and all Taxes with respect to the ownership, use
or leasing of any of the Purchased Assets on or
prior to the Closing Date.
(c) Purchaser Indemnification. The Purchaser hereby agrees
-------------------------
to indemnify the Seller against, and to hold the Seller harmless from
(i) any and all Damages arising out of or resulting from the ownership
or operation of the Purchased Assets transferred to the Purchaser
<PAGE>
pursuant to this Agreement after the Closing Date; (ii) the failure of
any representation or warranty of the Purchaser contained in this
Agreement to have been true when made and as of the Closing Date;
(iii) the failure of the Purchaser to comply with or perform any
covenant or agreement made or to be performed by the Purchaser
pursuant to this Agreement; and (iv) any and all Assumed Liabilities;
except with respect to Damages incurred after the Closing Date that
were caused by or arose from breaches of any of the Seller s
representations, warranties, covenants or agreements contained in this
Agreement.
(d) Procedures for Claims; Exclusivity.
----------------------------------
(i) The remedy of indemnification provided pursuant to
this Section 14 shall be the sole and exclusive remedy of the
Purchaser and the Seller for Damages arising out of any breach of any
representation or warranty in this Agreement.
(ii) A party seeking indemnification pursuant to this
Section 14 (an "Indemnified Party") from or against the assertion of
any claim, or the commencement of any action, suit or proceeding in
respect of which indemnity may be sought under this Section 14 (an
"Assertion") shall (i) give prompt notice to the party from whom
indemnification is sought (the "Indemnifying Party"), and (ii) provide
the Indemnifying Party such information with respect thereto as the
Indemnifying Party may reasonably request, but no failure to give such
notice or copies or provide such information shall relieve the
Indemnifying Party of any liability hereunder (except to the extent
the Indemnifying Party has suffered actual prejudice by such failure).
No
<PAGE>
Indemnified Party shall settle any Assertion without the prior written
consent of the Indemnifying Party, which consent shall not be
unreasonably withheld or delayed.
(iii) The Indemnifying Party shall have the right,
exercisable by the furnishing of written notice of an Assertion to the
Indemnified Party within 20 days of receipt of notice from the
Indemnified Party pursuant to Section 14(c)(ii) to assume the defense
of such Assertion; provided, however, that
-------- -------
(A) the Indemnifying Party expressly agrees in its
notice to the Indemnified Party that, as between
the Indemnifying Party and the Indemnified Party,
solely the Indemnifying Party shall be obligated
to satisfy and discharge such Assertion; and
(B) no other person has the right to assume the
defense of such Assertion pursuant to the terms of
any insurance coverage.
If the Indemnifying Party assumes such defense, the Indemnifying Party
(1) may select counsel, which counsel shall be reasonably acceptable
to the Indemnified Party, and (2) shall be obligated to pay the costs
(including reasonable attorneys fees and expenses) incurred by the
Indemnified Party in defending such Assertion between the date of the
commencement of such Assertion and the date of the Indemnifying
Party s assumption of such defense.
(iv) If the Indemnifying Party shall not have assumed
the defense of any Assertion as provided in Section 14(c)(iii) or if,
at any time after the Indemnifying Party shall have assumed the
defense of any Assertion pursuant to Section 14(c)(iii), any of the
conditions set forth
<PAGE>
in paragraphs (A) or (B) thereof is no longer satisfied, then, upon
ten days written notice to the Indemnifying Party, the Indemnified
Party may assume the defense of such Assertion with counsel selected
by it and shall have the right to consent to the entry of judgment
with respect to, or otherwise settle, such Assertion with the prior
written consent of the Indemnifying Party (which consent shall not be
unreasonably withheld or delayed), and the costs of such defense
and/or settlement (including reasonable attorneys fees and expenses)
shall be borne by the Indemnifying Party.
(v) The Indemnifying Party, if it shall have assumed
the defense of any Assertion, shall have the right to consent to the
entry of judgment with respect to, or otherwise settle, such
Assertion; provided, however, that such judgment or settlement
includes an
-------- ------- ----
unconditional release of the Indemnified Party and its affiliates from
all liability or restrictions in respect of claims that are the
subject matter of such Assertion.
(vi) The Indemnifying Party and the Indemnified Party
shall cooperate, and cause their respective affiliates to cooperate,
in the defense or prosecution of any Assertion and shall furnish or
cause to be furnished such records, information and testimony, and
attend such conferences, discovery proceedings, hearings, trials or
appeals, as may be requested in connection therewith. The
Indemnifying Party or the Indemnified Party, as the case may be, shall
have the right to participate, at its own expense, in the defense or
settlement of any Assertion which the other is defending.
<PAGE>
15. EXPENSES AND TAXES.
Except as otherwise provided herein, Seller and Purchaser shall
each pay their own expenses in connection with this Agreement and the
transactions contemplated hereby. Seller shall provide to Purchaser a
certificate on the Closing Date to the effect that no sales and use
taxes that are required to be collected by Seller from any third party
are due and owing arising out of the operation of Seller s business
prior to the Closing Date which have not been paid on or prior to the
Closing Date.
16. COOPERATION AND PUBLICITY.
(a) Neither Seller nor Purchaser shall voluntarily
undertake any course of action inconsistent with satisfaction of the
requirements applicable to it set forth in this Agreement, and each
shall promptly do all such acts and take all such measures as may be
appropriate to enable it to perform as early as practicable the
obligations herein provided to be performed by it.
(b) No party will issue any press release or make any other
public statement relating to the transactions contemplated hereby
unless required by law, regulation, court order or the rules of any
applicable stock exchange or regulatory authority, and any such
release or statement shall be subject to review by both parties.
17. WAIVER OF COMPLIANCE WITH BULK TRANSFER LAWS.
The Purchaser hereby waives compliance by the Seller with the
provisions of the bulk transfer laws of any jurisdiction in connection
with the transactions contemplated by this Agreement. Notwithstanding
anything to the contrary in this Agreement, in accordance with the
<PAGE>
terms and provisions of Section 14, the Seller agrees to indemnify and
hold the Purchaser harmless from and against all Damages resulting
from or arising out of the failure to comply with, or to provide
notice with respect to, the bulk transfer laws of any jurisdiction in
connection with the transactions contemplated by this Agreement.
18. MISCELLANEOUS.
(a) Each party represents and warrants that there are no
claims for brokerage commissions or finders fees in connection with
the transactions contemplated by this Agreement resulting from any
action taken by it. Each of the parties will exonerate, indemnify and
hold harmless the other in respect of any and all losses sustained by
the other as a result of liability to any broker or finder on the
basis of any arrangement or agreement made by or on behalf of such
party.
(b) This Agreement cannot be orally changed or terminated.
The parties may, by written supplemental agreement, (i) extend the
time for the performance of any of the obligations or other acts of
the parties hereto, (ii) waive any inaccuracy in any representation
contained herein or in any Schedule hereto, (iii) waive compliance
with any of the covenants or conditions contained in this Agreement,
and (iv) alter or amend this Agreement in any respect.
(c) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns, provided that neither the Seller nor Purchaser shall assign
any of its rights or privileges hereunder without the prior written
consent of the other.
<PAGE>
(d) Except as specifically set forth or referred to herein,
nothing herein expressed or implied is intended or shall be construed
to confer upon or give to any Person, firm or corporation, other than
the parties hereto and their respective permitted successors and
assigns or personal representatives, any rights or remedies under or
by reason of this Agreement.
(e) All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal
process in regard hereto shall be validly given, made or served if in
writing and delivered personally (including delivery by messenger) or
sent by telecopier facsimile (provided that answer-back confirmation
is received by the sender), or registered or certified mail (postage
prepaid, return receipt requested), addressed as follows or to such
other address as a party hereto shall hereafter specify in writing to
the other:
In the case of the Purchaser:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
25th Floor
New York, New York 10019
Fax: (212) 582-8522
Attn: Mr. Randall Blank
Executive Vice President
With a copy to:
Alice N. Gran, Esquire
Fort & Schlefer, L.L.P.
1401 New York Avenue, N.W.
Suite 1200
Washington, D.C. 20005
Fax: (202) 783-6898
<PAGE>
In the case of Seller:
Waveland Marine Service, Inc.
115 Landry Street
P.O. Box 189
Patterson, Louisiana 70392
Fax: (504) 395-3525
With a copy to:
Phelps Dunbar, L.L.P
400 Poydras Street
New Orleans, Louisiana 70130
Attn: Virginia Boulet
Fax: (504) 568-9130
(f) This Agreement and the Schedules annexed hereto and
made a part hereof contain the entire agreement between the parties
hereto with respect to the purchase and sale of assets and other
transactions contemplated herein and shall be governed by and
construed in accordance with the laws of the State of Louisiana.
Notwithstanding the foregoing or anything else to the contrary herein,
those provisions of the Letter of Intent between the parties, dated as
of October 24, 1996, and the Term Sheet attached thereto, which by
their terms shall survive until January 31, 1997, shall continue to be
valid and enforceable until those provisions terminate in accordance
with the Letter of Intent, except to the extent that those provisions
are inconsistent with the terms of this Agreement, in which case this
Agreement shall govern.
(g) If any provision of this Agreement shall be rendered
invalid or unenforceable by any body of competent jurisdiction, such
judgment shall not render the remainder of this Agreement invalid or
unenforceable.
<PAGE>
(h) Subsequent to the closing hereunder and prior to proper
recordation or filing by or on behalf of Purchaser of all necessary
deeds or other instruments of transfer, Seller will cooperate in all
respects in assertion by Purchaser of ownership to such properties and
will not do anything inconsistent with such ownership.
19. POST-CLOSING ACCOUNTING
The parties acknowledge that Seller is assigning to Purchaser no
accounts receivable, and that, except as expressly provided in the
first sentence of Section 3(a) hereof Purchaser is assuming no
liabilities. Purchaser and Seller agree, consistent with their normal
business practices, to cooperate in collecting and accounting for
Seller s accounts receivable (including through use of Purchaser's
computer equipment and office personnel as necessary) as of the
Closing Date and to assist Seller in its efforts to discharge Seller s
liabilities. The parties further agree to develop a procedure on or
prior to the Closing Date to implement the foregoing. Such procedure
shall include provision for (a) matching of payments received to
invoices outstanding and identification of disputed invoices; and (b)
assisting Seller in accounting for and paying outstanding payables.
It is not intended that Purchaser will disburse or collect funds for
the Seller, but Purchaser will assist the Seller in post-closing
accounting for a period of six (6) months from the Closing Date.
20. STOCKHOLDERS AGREEMENTS.
The Stockholders hereby acknowledge and consent to the terms and
provisions of this Agreement and agree to be bound by the terms and
provisions hereof. The Stockholders also hereby represent that, among
them, they are the owners of more than eighty percent (80%) of the
issued
<PAGE>
and outstanding shares of stock of the Seller, and they hereby agree
jointly and severally that they will not sell, transfer or otherwise
encumber such shares prior to closing.
21. EXPENSES OF CLOSING
Each party to this Agreement will pay its respective legal,
accounting, and other costs incurred in connection with this
transaction.
22. DEFINITIONS.
Attached hereto as Schedule X is a schedule of definitions of
defined terms used in this Agreement and other terms used herein
without definition.
<PAGE>
IN WITNESS WHEREOF, the parties hereby have caused this Agreement
to be duly executed and their respective corporate seals to be affixed
hereto, all as of the day and year first above written.
SEACOR MARINE, INC.
By: /s/ Timothy McKeand
Vice President
SEACOR HOLDINGS, INC.
By: /s/ Milton Rose
Vice President
WAVELAND MARINE SERVICE, INC.
By: /s/ F. C. Felterman
President
<PAGE>
THE STOCKHOLDERS:
/s/ F.C. Felterman
F.C. Felterman
/s/ Ernest Felterman
Ernest Felterman
/s/ D. Lee Felterman
D. Lee Felterman
/s/ Daniel C. Felterman
Daniel C. Felterman
NYFS11...:\93\73293\0004\1711\EXH1087Z.400
INVESTMENT AND REGISTRATION RIGHTS AGREEMENT
INVESTMENT AND REGISTRATION RIGHTS AGREEMENT, dated January
3, 1997 (this "Agreement"), among SEACOR Holdings, Inc., a Delaware
corporation (the "Company"), and the persons listed on the signature
pages hereof (collectively, the "Holders" and each, a "Holder").
W I T N E S S E T H :
-------------------
WHEREAS, pursuant to the asset purchase transactions (the
"Transactions") contemplated by that certain Agreement dated December
3, 1996 (the "Galaxie Purchase Agreement"), among the Company, Galaxie
Offshore Inc. (formerly Acadian Offshore Services, Inc.), a Louisiana
corporation and a direct, wholly-owned subsidiary of the Company, the
Holders and certain stockholders of the Holders, the Company has
agreed to issue to the Holders 50,000 shares of common stock, $0.01
par value, of the Company (the "Shares"); and
WHEREAS, pursuant to the Transactions, each Holder shall
receive the number of Shares of Common Stock (as hereinafter defined)
set forth opposite such Holder's name on Annex I hereto;
WHEREAS, the Shares will be issued and sold to the Holders
pursuant to the Transactions without registration under the Securities
Act in reliance on an applicable exemption from such registration, and
the Company and the Holders desire to provide for the registration of
the resale by the Holders of Registrable Securities (as hereinafter
defined) and by any Galaxie Stockholders (as hereinafter defined) to
whom any Registrable Securities are transferred by the Holders from
time to time, upon the terms and subject to conditions set forth
below; and
WHEREAS, it is intended by the Company and the Holders that
this Agreement shall become effective immediately upon the issuance
and sale to the Holders of Shares pursuant to the Transactions.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants herein contained, the parties hereto, intending to be
legally bound, hereby agree as follows:
<PAGE>
SECTION I. Certain Other Definitions. All capitalized
-------------------------
terms used but not defined in this Agreement shall have the respective
meanings ascribed to such terms in the Galaxie Purchase Agreement. As
used in this Agreement, the following capitalized terms (in their
singular and plural forms, as applicable) have the following meanings:
"Business Day" means any day on which commercial banks
------------
are open for business in the City of New York, Borough of Manhattan.
"Commission" means the United States Securities and
----------
Exchange Commission and any successor United States federal agency or
governmental authority having similar powers.
"Common Stock" means the common stock, $0.01 par value,
------------
of the Company.
"Exchange Act" means the Securities Exchange Act of
------------
1934, as amended, and the rules and regulations of the Commission
thereunder.
"Galaxie Stockholders" shall mean the stockholders of
--------------------
the Holders listed on Exhibit A hereto or, in the event of the death
or legal incapacity of any of such stockholders, such stockholder's
executors, administrators, conservators or other legal
representatives.
The terms "register," "registered" and "registration"
-------- ---------- ------------
means a registration effected by preparing and filing with the
Commission a registration statement on an appropriate form in
compliance with the Securities Act, and the declaration or order of
the Commission of the effectiveness of such registration statement
under the Securities Act.
"Registrable Securities" means the Shares issued to the
----------------------
Holders pursuant to the Transactions and any other securities issued
by the Company after the closing of the Transactions in respect of the
Shares (and in respect of the Common Stock generally) by means of
exchange, reclassification, dividend, distribution, split up,
combination, subdivision, recapitalization, merger, spin-off,
reorganization or otherwise; provided, however, that as to any
-------- -------
Registrable Securities, such securities shall cease to constitute the
same for purposes of this Agreement if and when (i) a registration
statement with respect to the sale of such securities shall have been
declared effective by the Commission and such securities shall have
been sold pursuant thereto in accordance with the intended plan and
method of distribution therefor set forth in the final prospectus
forming part of such registration statement; (ii) such securities
shall have been sold in compliance with all applicable resale
provisions of Rule 144 under the Securities Act; (iii) as expressed in
an opinion of counsel to the Company that is reasonably satisfactory
to the Holders and which is delivered and satisfactory to the Company
<PAGE>
and the transfer agent for the Common Stock, such securities no longer
constitute "restricted securities" within the meaning of Rule 144
under the Securities Act and the transfer of such securities neither
requires registration under the Securities Act nor qualification under
any state securities or "blue sky" law then in effect, or the use of
an applicable exemption therefrom; or (iv) such securities cease to be
issued and outstanding for any reason.
"Registration Expenses" means all expenses incurred by
---------------------
the Company in complying with Section 4 hereof, including, without
limitation, all registration and filing fees (including fees and
expenses associated with filings required to be made with the National
Association of Securities Dealers, Inc. and any national securities
exchange or U.S. automated inter-dealer quotation system of a
registered national securities association on which the Common Stock
is listed or otherwise admitted to unlisted trading privileges),
printing expenses, if any (including expenses of printing certificates
for the Common Stock being registered in a form eligible for deposit
with The Depository Trust Company and of printing registration
statements and prospectuses), fees and disbursements of counsel for
the Company, fees and expenses of compliance with state securities or
"blue sky" laws (including reasonable fees and expenses of one firm of
counsel for underwriters, if any, in connection with "blue sky"
qualifications of the Registrable Securities being registered and the
determination of eligibility for investment under the laws of such
jurisdictions designated by the underwriters, if any), accountants'
fees and expenses (including the expenses of any special audits or
"comfort" letters incident to or required by any such registration),
transfer taxes, fees of transfer agents and registrars, and fees and
disbursements of underwriters customarily paid by issuers or sellers
of securities, but excluding underwriting discounts and commissions
and broker-dealer concessions and allowances and marketing expenses.
"Securities Act" means the Securities Act of 1933, as
--------------
amended, and the rules and regulations of the Commission thereunder.
"Significant Subsidiary" has the meaning ascribed to
----------------------
such term in Rule 1-02(w) of Regulation S-X under the Securities Act
and the Exchange Act.
"Underwritten Offering" means a registration under the
---------------------
Securities Act pursuant to which securities of the Company are sold to
an underwriter for reoffering and distribution to the public.
SECTION II. Representations and Warranties of Holders.
-----------------------------------------
Each Holder severally (and not jointly) hereby represents,
acknowledges, covenants and agrees as follows: (i) the Shares are
being acquired for such Holder's own account for investment purposes
only and not with a view to any public resale, public distribution or
public offering thereof within the meaning of the Securities Act or
any state securities or "blue sky" law; (ii) to the
<PAGE>
knowledge of such Holder, the Shares have not been registered under
the Securities Act or any state securities or "blue sky" law;
(iii) such Holder either is an "accredited investor" within the
meaning of Rule 501 of Regulation D under the Securities Act, or such
Holder has such knowledge and experience in financial and business
matters that such Holder is capable of evaluating the relative merits
and risks of the prospective investment in the Shares and able to bear
the economic consequences thereof; (iv) such Holder will not offer for
sale, sell or otherwise transfer any of the Shares (or any interest
therein) except upon the terms and subject to the conditions specified
herein, and otherwise not in violation of the Securities Act, provided
that such Holder, prior to effecting any transfer of Shares permitted
hereunder, will cause the intended transferee of the Shares to agree
to take and hold such Shares subject to the terms and conditions of
this Agreement (and, in that connection, to execute and deliver to the
Company such agreements and instruments as the Company reasonably may
request to evidence the same), and further acknowledges that the
certificates evidencing such Shares are required to have endorsed
thereon a legend to the effect set forth in Section 3(a) hereof;
(v) in making such Holder's decision to invest in the Registrable
Securities, such Holder has relied upon independent investigations
made by such Holder and, to the extent believed by him or it to be
appropriate, has relied on investigations made by such Holder's
representatives, including such Holder's own legal, accounting,
investment, financial, tax and other professional advisors; (vi) such
Holder has been afforded an opportunity to review and has reviewed all
of the Company's reports filed by the Company under the Exchange Act
since January 1, 1994 (the "Public Filings"); and (vii) such Holder
and such Holder's purchaser representatives, as applicable, have been
given the opportunity to examine all documents, including the Public
Filings, and to ask questions of, and to receive answers from, the
Company and its representatives concerning the terms of the Galaxie
Purchase Agreement and such Holder's investment in the Shares.
SECTION III. Restrictions on Transfer.
------------------------
A. Legend. Each certificate representing the Shares
------
shall have endorsed thereon a legend in substantially the following
form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAW, AND MAY NOT BE TRANSFERRED, SOLD
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
UNLESS PURSUANT TO AN AVAILABLE EXEMPTION THEREFROM. IN ALL
CASES, SUCH SHARES MAY BE TRANSFERRED ONLY IN COMPLIANCE
WITH THE CONDITIONS SPECIFIED IN THE INVESTMENT AND
REGISTRATION RIGHTS AGREEMENT DATED ___________ __, 199__,
<PAGE>
AMONG THE COMPANY AND THE STOCKHOLDERS PARTY THERETO, A COPY
OF WHICH IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE COMPANY AND WILL BE FURNISHED TO
THE HOLDER HEREOF WITHOUT CHARGE, UPON WRITTEN REQUEST TO
SEACOR HOLDINGS, INC., 11200 WESTHEIMER, SUITE 850, HOUSTON,
TEXAS 77042, ATTENTION: SECRETARY."
---------
B. Any Holder may transfer its Shares to the Galaxie
Stockholders who are stockholders of such Holder subject to the
execution and delivery by each such Galaxie Stockholder to the Company
of an agreement in the form of Exhibit B hereto (a "Transfer
Agreement") and, following such transfer of Shares and execution and
delivery of such Transfer Agreement, such Galaxie Stockholder shall
succeed to all of the transferring Holder's rights under this
Agreement with respect to the Shares so transferred.
SECTION IV. Registration under Securities Act, etc.
---------------------------------------
A. Shelf-Registration. 1. General. The Company
------------------ -------
agrees to use its best efforts to prepare and file with the Commission
on or before March 31, 1997, a registration statement on Form S-3 (or
on another appropriate form under the Securities Act then available
for use by the Company in connection with a secondary offering of the
Registrable Securities pursuant to Rule 415 under the Securities Act)
relating to the resale, from time to time, of the Registrable
Securities by the Holders in accordance with the plan and method of
distribution set forth in the prospectus forming part of such
registration statement (a "Shelf Registration Statement"), and shall
use reasonable commercial efforts to cause the Shelf Registration
Statement to be declared effective by the Commission as soon as
reasonably practicable thereafter. It is understood and agreed that
the Shelf Registration Statement may have included therein shares of
Common Stock offered for sale, from time to time, by holders of Common
Stock other than the Holders and also may relate to a primary offering
of Common Stock by the Company.
2. Effective Period. The Company agrees to use
----------------
its best efforts to keep the Shelf Registration Statement continuously
effective until the first to occur of the second anniversary of the
date on which such Shelf Registration Statement was first declared
effective by the Commission (subject to Suspension Periods (defined
below) and extensions coincident with the length of such Suspension
Periods) or the date on which all the Registrable Securities covered
by the Shelf Registration Statement have been sold thereunder in
accordance with the plan and method of distribution intended by each
Holder and as disclosed in the prospectus forming part of the Shelf
Registration Statement (the "Effective Period"). For purposes hereof,
"Suspension Period" shall mean a period of time commencing on the date
on
<PAGE>
which the Company provides notice that the Shelf Registration
Statement is no longer effective, that the prospectus included in the
Shelf Registration Statement no longer complies with the requirements
therefor prescribed by Section 10(a) of the Securities Act, or that
the Company in its reasonable, good faith judgment, for valid business
purposes (including, without limitation, in connection with a proposed
or pending issuance or sale of the Company's debt or equity securities
by the Company or any other person or a proposed or pending merger,
reorganization, consolidation, recapitalization, public offering, sale
of assets or other extraordinary corporate transaction, whether or not
publicly announced, involving the Company or any of its Significant
Subsidiaries) has elected to require the suspension of the sale by
Holders of their Registrable Securities pursuant to the Shelf
Registration Statement, and shall end on the date when each Holder of
Registrable Securities either receives copies of the supplemented or
amended prospectus contemplated by Section 4(c)(v) plus an additional
five Business Days or otherwise is advised in writing by the Company
that use of the prospectus may be resumed. Each Holder agrees that it
will not sell any Registrable Securities pursuant to the Shelf
Registration Statement during any Suspension Period and the Company
agrees to cause each Suspension Period to end as soon as reasonably
practicable. The Company agrees that no other similarly situated
holder of the Company's Common Stock will be permitted to sell Shares
of the Company's Common Stock pursuant to a shelf registration
statement during a Suspension Period. If one or more Suspension
Periods occur, the Effective Period shall be extended by such number
of days coincident with the aggregate number of days included in all
Suspension Periods.
B. Incidental Registration; Right and/or Requirement
-------------------------------------------------
to Include the Shares in a Company Registration: If at any time after
-----------------------------------------------
the date hereof and prior to the filing of the Shelf Registration
Statement, the Company proposes to register under the Securities Act
on any registration form available for the general registration of
securities to be sold for cash, other than on Form S-4 or S-8 (or any
successor form for securities to be offered in a transaction of the
type contemplated by Rule 145 under the Securities Act or to employees
of the Company pursuant to any employee benefit plan) any shares of
Common Stock, whether or not for its own account, the Company promptly
shall furnish written notice to each Holder of its intention to effect
such Securities Act registration, together with a reasonable
description of such Holder's incidental rights under this Section 4(b)
(the "Company Piggyback Notice"). Upon the written request of a
Holder made within 10 business days after the receipt by it of the
Company Piggyback Notice (which request shall specify the number of
Shares intended to be disposed of by the Holder and the method of
distribution intended by the Holder (the "Galaxie Inclusion Notice")),
the Company shall use its best efforts to cause all such Shares
specified in the Galaxie Inclusion Notice to be registered under the
Securities Act, together with the other shares of Common Stock which
the Company at the time proposes to register, all to the extent
practicable to permit the disposition of the Shares pursuant to the
Company's registration statement in accordance with the methods of
distribution intended by each Holder. If the Company thereafter
reasonably shall determine not to register or to delay the
registration
<PAGE>
of its Common Stock, the Company shall provide written notice of such
determination to each Holder and (x) in the case of a determination
not to effect a registration pursuant to this Section 4(b), thereupon
shall be relieved of the obligation to register the Shares pursuant to
this Section 4(b), and (y) in the case of a determination to delay a
registration pursuant to this Section 4(b), thereupon shall be
permitted to delay the registration of the Shares for the period
coincident with the delay in respect of the Common Stock being
registered for the Company's own account (or the account of the other
holder(s), if any, in respect of which the Company registration
contemplated by this Section 4(b) is being effected).
C. Registration Procedures. The Company shall:
-----------------------
1. cause any registration statement filed
pursuant to Section 4 hereof and the related prospectus and any
amendment or supplement thereto, as of the effective date of such
registration statement, amendment or supplement, (A) to comply in all
material respects with the applicable requirements of the Securities
Act and the rules and regulations of the Commission promulgated
thereunder and (B) not to 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, in light of the
circumstances under which they were made, not misleading;
2. prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection with such registration statement as may
be necessary to keep such registration statement effective and to
comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such registration
statement until the earlier of such time as all such Registrable
Securities have been disposed of in accordance with the intended plan
and method of disposition by each Holder of such Registrable
Securities or for the period ending on the second anniversary of the
date on which such Shelf Registration Statement was first declared
effective (subject to Suspension Periods and extensions coincident
with the length of such suspensions) and, in the case of a
registration pursuant to Section 4(b) hereof, 90 days after such
registration statement is declared effective by the Commission; and
will furnish to each Holder a copy of any amendment or supplement to
such registration statement or prospectus prior to filing the same
with the Commission and shall not file any such amendment or supple-
ment to which any such requesting Holder shall reasonably have
objected to in writing on the grounds that such amendment or
supplement does not comply in all material respects with the
requirements of the Securities Act or of the rules or regulations
thereunder or otherwise inaccurately describes information pertaining
to such Holder;
3. furnish to each requesting Holder such number
of conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits
thereto), such number of copies of the prospectus included in
<PAGE>
such registration statement (including each preliminary prospectus),
such number of the documents, if any, incorporated by reference in
such registration statement or prospectus, and such number of other
documents, as such requesting Holder reasonably may request;
4. use its best efforts to register or qualify
the Registrable Securities covered by such registration statement
under such securities or "blue sky" laws of the states of the United
States as each requesting Holder reasonably shall request, to keep
such registration or qualification in effect for so long as such
registration statement remains in effect, and to do any and all other
acts and things which may be necessary or advisable to enable such
requesting Holder to consummate the disposition in such jurisdictions
of his or its Registrable Securities covered by such registration
statement, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation
in any jurisdiction in which it is not and would not, but for the
requirements of this Section 4(c)(iv), be obligated to be so
qualified, or to subject itself to taxation in any such jurisdiction,
or to consent to general service of process in any such jurisdiction;
5. immediately notify each Holder, at any time
when a prospectus or prospectus supplement relating thereto is
required to be delivered under the Securities Act, upon discovery
that, or upon the occurrence of any event as a result of which, the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, which untrue statement or omission requires
amendment of the registration statement or supplementing of the
prospectus, and, at the request of such requesting Holder, prepare and
furnish to such requesting Holder a reasonable number of copies of a
supplement to such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not include 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; provided,
--------
however, that with respect to Registrable Securities registered
-------
pursuant to such registration statement each Holder agrees that such
Holder will not sell any Registrable Securities pursuant to such
registration statement during the time after the furnishing of the
Company's notice that the Company is preparing and filing with the
Commission a supplement to or an amendment of such prospectus or
registration statement and such period shall be a Suspension Period
for purposes of determining the Effective Period hereunder;
6. use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available
to holders of its securities, as soon as reasonably practicable, an
earnings statement covering the period of at least 12 months, but not
more than 18 months, beginning with the first month of the first
fiscal quarter after the
<PAGE>
effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act; and
7. provide and cause to be maintained a transfer
agent and registrar for the Registrable Securities covered by such
registration statement from and after a date not later than the
effective date of such registration statement; it being hereby agreed
that each Holder of Registrable Securities shall furnish to the
Company such information regarding such Holder and the plan and method
of distribution of Registrable Securities intended by such Holder as
the Company may from time to time reasonably request in writing and as
shall be required by law or by the Commission in connection therewith.
D. Underwritten Offerings. 1. Incidental
---------------------- ----------
Underwritten Offerings. If the Company at any time proposes to
----------------------
register any shares of Common Stock under the Securities Act as
contemplated by Section 4(b) hereof and such securities are to be
distributed by or through one or more underwriters, the Company shall
provide 20 days prior written notice to each Holder of such proposal
and will use its best efforts if requested by such Holder in
connection with such incidental registration of Shares to arrange for
such underwriters to include, on the same terms as the other shares of
Common Stock being distributed, the Shares to be offered and sold by
such Holder, together with such other securities to be distributed by
or through such underwriters; provided, however, that, for purposes of
-------- -------
this sentence, best efforts shall not require the Company to reduce
the amount or sale price of such securities proposed to be distributed
on behalf of the Company by or through such underwriters. Each Holder
shall be a party to the underwriting agreement between the Company and
such underwriters and the representations and warranties by, and the
other agreements on the part of, the Company to and for the benefit of
such underwriters shall also be made to and for the benefit of each
Holder and the Company will cooperate with each Holder such that the
conditions precedent to the obligations of each Holder under such
underwriting agreement shall include conditions that are customary in
underwriting agreements and otherwise reasonably satisfactory to such
Holder. Each Holder shall not be required by the Company to make any
representations or warranties to or agreements (including indemnity
agreements customary in secondary offerings) with the Company or the
underwriters other than reasonable representations, warranties or
agreements regarding the Holder, its ownership of the Shares and its
intended method or methods of distribution.
2. Holdback Agreements; Press Releases.
-----------------------------------
a. If any registration of Registrable
Securities pursuant to this Agreement shall be effected by
means of an Underwritten Offering and any of the Shares
requested by a Holder to be included in such Underwritten
Offering have been included therein, such Holder agrees, if
so required by the managing underwriter, not to effect any
public sale or distribution of the Shares
<PAGE>
(other than as part of such underwritten public offering)
within 30 days prior to the effective date of such
registration statement or 90 days after the effective date
of such registration statement. In order to ensure
compliance with the provisions of this Section 4(d)(ii)(A),
the Company agrees to notify each Holder as to the status
and proposed effective date of any registration statement of
the Company which has been filed with the Commission.
b. The Company agrees (x) not to effect any
public sale or distribution of any shares of the Common
Stock or securities convertible into or exchangeable or
exercisable for any shares of the Common Stock during the
period commencing on the 30th day prior to and ending on the
earlier of 90 days after any registration statement filed in
connection with an Underwritten Offering has become
effective and the date on which all securities under such
registration statement are sold, except as part of such
Underwritten Offering and except pursuant to registrations
on Form S-4 or S-8 or any successor forms thereto, and
(y) to use its best efforts to cause each holder of the
Common Stock or any securities convertible into or
exchangeable or exercisable for any shares of the Common
Stock, in each case purchased from the Company at any time
after the date of this Agreement (other than in a public
offering) to agree not to effect any such public sale or
distribution of such securities during such period.
c. Before each Holder shall disseminate or
announce publicly any information concerning a proposed
offering pursuant to this Section 4 hereof that is intended
for or may result in public knowledge thereof, such Holder
shall so advise the Company and shall not disseminate or
announce publicly such information without the Company's
consent, unless such information is otherwise publicly
available or the dissemination thereof is required by
applicable law.
E. Preparation; Reasonable Investigation. In
-------------------------------------
connection with the preparation and filing of each registration
statement registering Registrable Securities under the Securities Act
as contemplated by this Agreement, the Company shall give each Holder,
its underwriters, if any, and each Holder's counsel and accountants,
the opportunity to review the Company's preparation of such
registration statement, each prospectus included in such registration
statement or filed with the Commission and each amendment or
supplement thereto, and the Company will give such person or persons
such reasonable access to the Company's books and records and such
opportunities to discuss the business of the Company with its officers
and the independent public accountants who have certified its
financial statements as shall be necessary for each such Holder and
persons to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act. To minimize disruption and expense
to the Company during the course of the registration process, each
Holder shall
<PAGE>
use its reasonable best efforts to coordinate its investigation and
due diligence efforts and, to the extent practicable, will act through
a single firm of counsel and a single firm of accountants and, if
requested by the Company, will enter into confidentiality agreements
with the Company in a form satisfactory to the Company.
F. Indemnification. 1. Indemnification by the
--------------- ----------------------
Company. The Company shall indemnify and hold harmless each Holder of
-------
Registrable Securities covered by any registration statement filed
pursuant to this Agreement, and any underwriter or selling agent
selected by one or more Holders with the consent of the Company with
respect to such Registrable Securities, the directors, trustees and
officers, and each other person, if any, who controls such Holder,
underwriter or selling agent within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act against any losses,
claims, damages, liabilities or expenses (each a "Loss" and
collectively "Losses"), joint or several, to which such Holder or any
such persons may become subject under the Securities Act or otherwise,
to the extent that such Losses (or related actions or proceedings)
arise out of or are based upon (A) any untrue statement or alleged
untrue statement of any material fact contained in an effective
registration statement in which such Registrable Securities were
included for registration under the Securities Act, any preliminary
prospectus if used prior to the effective date of the registration
statement (unless such statement is corrected in the final prospectus
and the Company previously furnishes copies thereof to any Holder of
Registrable Securities seeking indemnification pursuant to this
Section 4(f), final prospectus (as supplemented, if the Company shall
have filed with the Commission any supplement thereto) if used during
the period in which the Company is required to keep the registration
statement to which such prospectus relates current and otherwise in
compliance with Section 10(a) of the Securities Act, or (B) any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that the Company shall have no obligation to
-------- -------
provide any indemnification hereunder if any such Losses (or actions
or proceedings in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, preliminary prospectus
or final prospectus, as the case may be, in reliance upon and in
conformity with written information furnished to the Company by such
Holder for inclusion in such registration statement; and provided,
--------
further, that the Company shall have no obligation to provide any
-------
indemnification hereunder if any such Losses arise out of or are based
upon an untrue statement or alleged untrue statement or omission or
alleged omission in the final prospectus, if such untrue statement or
alleged untrue statement or omission or alleged omission shall have
been corrected in a supplement to the final prospectus and such Holder
or any such other person shall have failed to deliver such final
prospectus as so supplemented prior to or concurrently with the sale
of the Registrable Securities covered by a registration statement to
the individual or entity asserting such Losses after the Company shall
have furnished each such Holder or any such other person with a
sufficient number of copies thereof
<PAGE>
in a manner and at a time sufficient to permit delivery of the same.
The indemnity provided in this Section 4(f)(i) shall remain in full
force and effect regardless of any investigation made by or on behalf
of such Holder or any such other person and shall survive the transfer
of the Registrable Securities by such Holder or any such other person.
2. Indemnification by the Holders. Each Holder
------------------------------
and each other person who controls such Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act,
shall indemnify and hold harmless (in the same manner and to the same
extent as set forth in Section 4(f)(i) hereof) the Company, each
director of the Company, each officer of the Company who shall sign
such registration statement and each other person, if any, who
controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, with respect to any
untrue statement in or omission from any registration statement filed
by the Company pursuant to this Agreement, any preliminary prospectus
or any final prospectus included in such registration statement, or
any amendment or supplement to such registration statement or
prospectus, as the case may be, of a material fact if such statement
or omission was made in reliance upon and in conformity with written
information furnished to the Company or any of its representatives by
such Holder or such other person, if any, who controls such Holder
within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act for inclusion in such registration statement,
preliminary prospectus or final prospectus, as the case may be.
3. Notice of Claims, etc. Promptly after
----------------------
receipt by an indemnified party of notice of the commencement of any
action or proceeding (an "Action") involving a claim referred to in
Sections 4(f)(i) and 4(f)(ii) hereof, such indemnified party shall, if
indemnification is sought against an indemnifying party, give written
notice to the indemnifying party of the commencement of such action;
provided, however, that the failure of any indemnified party to give
-------- -------
said notice shall not relieve the indemnifying party of its
obligations under Sections 4(f)(i) or 4(f)(ii) hereof, except to the
extent that the indemnifying party is actually and materially
prejudiced by such failure. In case an Action is brought against any
indemnified party, and such Action notifies an indemnifying party of
the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice, to assume the defense thereof with counsel reason-
ably satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party shall have the right to employ its
own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party, unless
(A) the employment of such counsel shall have been authorized in
writing by the indemnifying party, (B) the indemnifying party shall
not have employed counsel (reasonably satisfactory to the indemnified
party) to take charge of the defense of such Action, within a
reasonable time after notice of the commencement thereof, or (C) such
indemnified party reasonably shall have concluded that there may be
defenses available to it which are different from or additional to
those available
<PAGE>
to the indemnifying party which, if the indemnifying party and the
indemnified party were to be represented by the same counsel, could
result in a conflict of interest for such counsel or materially
prejudice the prosecution of the defenses available to such
indemnified party. If either of the events specified in clauses (A),
(B) or (C) of the preceding sentence shall have occurred or otherwise
shall be applicable, then the fees and expenses of one counsel (or
firm of counsel) selected by a majority in interest of the indemnified
parties (measured by reference to their ownership of Registrable
Securities) shall be borne by the indemnifying party. If, in any
case, the indemnified party employs separate counsel, the indemnifying
party shall not have the right to direct the defense of such action on
behalf of the indemnified party. Anything in this Section 4(f)(iii)
to the contrary notwithstanding, an indemnifying party shall not be
liable for the settlement of any action effected without its prior
written consent (which consent in the case of an action exclusively
seeking monetary relief shall not unreasonably be withheld or delayed)
or if there be a final judgment adverse to the indemnified party, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior consent of
the indemnified party, consent to entry of any judgment or enter into
any settlement which does not include as a term thereof the
unconditional release of the indemnified party from all liability in
respect of such claim or litigation.
4. Contribution. If the indemnification
------------
provided for in this Section 4 is unavailable or insufficient to hold
harmless an indemnified party in respect of any Losses, then each
indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified
party, as a result of such Losses in such proportion as appropriate to
reflect the relative fault of the Company, on the one hand, and the
indemnified party, on the other hand, and to the parties' relative
intent, knowledge, access to information and opportunity to correct or
mitigate the damage in respect of or prevent any untrue statement or
omission giving rise to such indemnification obligation. The Company
and each Holder agree that it would not be just and equitable if
contributions pursuant to this Section 4(f)(iv) were determined by pro
rata allocation or by any other method of allocation which did not
take account of the equitable considerations referred to above. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who is not guilty of such fraudulent
misrepresentation.
5. Indemnification Payments. Periodic payments
------------------------
of amounts required to be paid pursuant to this Section 4 shall be
made during the course of the investigation or defense, as and when
reasonably itemized bills therefor are delivered to the indemnifying
party in respect of any particular Loss, damage or liability that is
incurred.
6. Limitation on Seller's Payments.
-------------------------------
Notwithstanding any provision of this Agreement to the contrary, the
liability of each Holder of Registrable
<PAGE>
Securities under this Section 4(f) shall in no event exceed the net
proceeds received by such Holder from the sale of Registrable
Securities covered by the registration statement giving rise to such
liability.
7. Adjustment of Liability. Any indemnifiable
-----------------------
Loss under this Section 4 shall be reduced by any tax benefit accruing
to the indemnified party on account of the indemnification payment and
by the amounts actually recovered by the indemnified party from its
insurance carriers in respect of such Loss, and any amounts recovered
by such party subsequent to the payment by the indemnifying party
hereunder with respect to the same claim shall be remitted to such
indemnifying party, except that such remittance shall not exceed the
amount of the indemnification payment made by such indemnifying party.
G. Registration Expenses. The Company shall bear all
---------------------
Registration Expenses incurred in connection with the performance of
its obligations under Section 4 of this Agreement.
SECTION V. Rule 144. The Company shall comply with the
--------
requirements of Rule 144(c) under the Securities Act, as such Rule may
be amended from time to time (or any similar rule or regulation
hereafter adopted by the Commission), regarding the availability of
current public information to the extent required to enable each
Holder to sell Registrable Securities without registration under the
Securities Act pursuant to the resale provisions of Rule 144 (or any
similar rule or regulation). Upon the request of a Holder, the
Company will deliver to such Holder a written statement as to whether
it has complied with such requirements and, upon a Holder's compliance
with the applicable provisions of Rule 144, will take such action as
may be required (including, without limitation, causing legal counsel
to issue an appropriate opinion) to cause its transfer agent to
effectuate any transfer of Registrable Securities properly requested
by such Holder, in accordance with the terms and conditions of Rule
144.
SECTION VI. Amendments and Waivers. This Agreement may be
----------------------
amended or modified and the Company may take any action herein
prohibited, or omit to perform any act herein required to be performed
by it, only if the Company shall have obtained the written consent to
such amendment, modification, action or omission to act, of each
Holder. Each Holder shall be bound by any consent authorized by this
Section 6, whether or not such Registrable Securities shall have been
marked to indicate such consent.
SECTION VII. Notices. All notices, communications and
-------
deliveries required or permitted by this Agreement shall be made in
writing signed by the party making the same,
<PAGE>
shall specify the Section of this Agreement pursuant to which it is
given or being made and shall be deemed given or made (i) on the date
delivered if delivered by telecopy or in person, (ii) on the third
Business Day after it is mailed if mailed by registered or certified
mail (return receipt requested) (with postage and other fees prepaid)
or (iii) on the day after it is delivered, prepaid, to an overnight
express delivery service that confirms to the sender delivery on such
day, as follows:
A. if to the Holders, c/o Galaxie Marine Service,
Inc., P.O. Box 189, Patterson, Louisiana 70392-0189, Attn: F.C.
Felterman, Telecopy No.: (504) 395-3525, with a copy to Virginia
Boulet, Phelps Dunbar, L.L.P., 400 Poydras Street, New Orleans,
Louisiana 70130-3245, Telecopy No.: (504) 568-9130; and
B. if to the Company, at 1370 Avenue of the Americas,
New York, New York 10019, Attn: Mr. Randall Blank, Telecopy No.:
(212) 582-8522, with a copy to Alice Gran, Fort & Schlefer, L.L.P.,
1401 New York Avenue, N.W., Twelfth Floor, Washington, D.C. 20005,
Telecopy No.: (202) 783-6898;
or to such other representative or at such other address of a party as
such party hereto may furnish to the other parties in writing. If
notice is given pursuant to this Section 8 of any assignment to a
permitted successor or assign of a party hereto, the notice shall be
given as set forth above to such successor or assign of such party.
SECTION VIII. Secretary to Retain Copy. A copy of this
------------------------
Agreement, including all Exhibits hereto, shall be filed with the
Secretary of the Company, and the Secretary shall make it available to
each Holder of Registrable Securities at all reasonable times during
normal business hours.
SECTION IX. Entire Agreement. This Agreement embodies the
----------------
entire agreement and understanding between the Company and each Holder
in respect of the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings between the parties
with respect to the subject matter of this Agreement.
SECTION X. Governing Law. This Agreement shall be governed
-------------
by and construed in accordance with the internal laws of the State of
New York (other than its rules of conflicts of laws to the extent the
application of the laws of another jurisdiction would be required
thereby).
<PAGE>
SECTION XI. Severability. If any provision of this
------------
Agreement or the application thereof to any person or circumstances is
determined by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions hereof, or the application of
such provision to persons or circumstances other than those as to
which it has been held invalid or unenforceable, shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated thereby, so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner adverse
to any party. Upon such determination, the parties shall negotiate in
good faith in an effort to agree upon a suitable and equitable
substitute provision to effect the original intent of the parties.
SECTION XII. Termination. The rights and obligations under
-----------
this Agreement shall automatically terminate upon the earlier to occur
of (a) the sale of all Registrable Securities by each Holder and
(b) the end of the Effective Period, as the same may be extended
pursuant to Sections 4(a)(ii) hereof.
SECTION XIII. Miscellaneous. The Company shall not after
-------------
the date of this Agreement enter into any agreement with respect to
the Common Stock which violates the rights granted to each Holder in
this Agreement. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning of
this Agreement. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all
of which, when taken together, shall constitute one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed and delivered as of the date first above
written.
SEACOR HOLDINGS, INC.
By: /s/ Timothy McKeand
------------------------------
Name: Timothy McKeand
Title: Vice President
GALAXIE MARINE SERVICE, INC.
By: /s/ D. Lee Felterman
------------------------------
Name: D. Lee. Felterman
Title: President
MOONMAID MARINE, INC.
By: /s/ F. C. Felterman
------------------------------
Name: F. C. Felterman
Title: President
TRIANGLE MARINE, INC.
By: /s/ Ernest Felterman
------------------------------
Name: Ernest Felterman
Title: President
<PAGE>
ANNEX I
-------
Holders Shares
------- ------
Galaxie Marine Service, Inc. 24,506
Moonmaid Marine, Inc. 5,381
Triangle Marine, Inc. 20,113
<PAGE>
EXHIBIT A
---------
Galaxie Stockholders:
--------------------
F.C. Felterman
D. Lee Felterman
Daniel Felterman
Michael Felterman
Ernest Felterman
<PAGE>
EXHIBIT B
---------
TRANSFER AGREEMENT
SEACOR Holdings, Inc.
1370 Avenue of the Americas
25th Floor
New York, New York 10019
Ladies and Gentlemen:
This Agreement is being delivered to you pursuant to Section
3(a) of the Investment and Registration Rights Agreement, dated
__________ __, 199__, among SEACOR Holdings, Inc., a Delaware
corporation (the "Company"), and the persons listed on the signature
pages thereto (the "Registration Rights Agreement"). All capitalized
terms used but not otherwise defined in this Agreement shall have the
respective meanings ascribed to such terms in the Registration Rights
Agreement.
[Name of Holder] intends to transfer to the undersigned ___
Shares that constitute Registrable Securities. In connection
therewith, the undersigned hereby represents, acknowledges, covenants
and agrees as follows:
(i) such Shares are being acquired for the undersigned's own
account for investment purposes only and not with a view to any public
resale, public distribution or public offering thereof within the
meaning of the Securities Act or any state securities or "blue sky"
law;
(ii) to the knowledge of the undersigned, such Shares have
not been registered under the Securities Act or any state securities
or "blue sky" law;
(iii) the undersigned either is an "accredited investor"
within the meaning of Rule 501 of Regulation D under the Securities
Act, or alone or together with the undersigned's purchaser
representative, has such knowledge and experience in financial and
business matters that the undersigned is capable of evaluating the
relative merits and risks of the prospective investment in such Shares
and able to bear the economic consequences thereof;
(iv) the undersigned will not offer for sale, sell or
otherwise transfer any of such Shares (or any interest therein) except
upon the terms and subject to the conditions specified in the
Registration Rights Agreement, and otherwise not in violation of the
Securities Act, provided that such Holder, prior to effecting any
transfer of Shares permitted under the
<PAGE>
Registration Rights Agreement, will cause the intended transferee of
the Shares to agree to take and hold such Shares subject to the terms
and conditions of the Registration Rights Agreement (and, in that
connection, to execute and deliver to the Company such agreements and
instruments as the Company reasonably may request to evidence the
same), and further acknowledges that the certificates evidencing such
Shares are required to have endorsed thereon a legend to the effect
set forth in Section 3(a) of the Registration Rights Agreement;
(v) in making the undersigned's decision to invest in the
Registrable Securities, the undersigned has relied upon independent
investigations made by the undersigned and, to the extent believed by
him or it to be appropriate, has relied on investigations made by the
undersigned's representatives, including the undersigned's own legal,
accounting, investment, financial, tax and other professional
advisors;
(vi) the undersigned has been afforded an opportunity to
review and has reviewed all of the Company's reports filed by the
Company under the Exchange Act since January 1, 1994 (the "Public
Filings"); and
(vii) the undersigned and the undersigned's purchaser
representatives, as applicable, have been given the opportunity to
examine all documents, including the Public Filings, and to ask
questions of, and to receive answers from, the Company and its
representatives concerning the terms of the Galaxie Purchase
Agreement, the Registration Rights Agreement and the undersigned's
investment in the Shares.
If for any reason the Registration Rights Agreement shall be
terminated, this Agreement shall likewise be terminated.
Very truly yours,
[Signature of Galaxie Stockholder]
[Typed name of Galaxie Stockholder]
ACKNOWLEDGED BY:
SEACOR HOLDINGS, INC.
By: ________________________
Name:
Title:
WEIL, GOTSHAL & MANGES LLP
A Limited Liability Partnership Including Professional Corporations
767 Fifth Avenue New York, NY 10153-0119
(212) 310-8000
Fax: (212) 310-8007
January 31, 1997
The Board of Directors
SEACOR Holdings, Inc.
11200 Westheimer
Suite 850
Houston, TX 77042
Ladies and Gentlemen:
We have acted as counsel to SEACOR Holdings, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing of
the Registration Statement of the Company on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
relating to the intended resale from time to time by the Selling Stockholders
(in the manner described in the prospectus (the "Prospectus") contained in the
Registration Statement) of up to an aggregate of 790,736 shares of Common Stock,
$.01 par value (the "Common Stock"), of the Company.
In so acting, we have reviewed the Registration Statement, including
the Prospectus contained therein, and the Restated Certificate of Incorporation
and the Bylaws of the Company in effect on the date hereof. In addition, we have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records, agreements, documents and other
instruments, and such certificates or comparable documents of public officials
and of officers and representatives of the Company, and have made such inquiries
of such officers and representatives, as we have deemed relevant and necessary
as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to this opinion that have not been independently established,
we have relied upon certificates or comparable documents of officers and
representatives of the Company.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that:
1. The Company is a corporation duly incorporated and validly
existing under the laws of the State of Delaware.
2. The shares of Common Stock to be sold by the Selling Stockholders
in the manner described under the captions "Selling Stockholders" and "Plan of
Distribution" in the Prospectus contained in the Registration Statement have
been validly issued, fully paid and are nonassessable.
<PAGE>
The opinions expressed herein are limited to the corporate laws of
the State of Delaware and the federal laws of the United States, and we express
no opinion as to the effect on the matters covered by this letter of the laws of
any other jurisdiction.
The opinions expressed herein are rendered solely for your benefit
in connection with the transactions described herein. Those opinions may not be
used or relied upon by any other person, nor may this letter or any copies
thereof be furnished to a third party, filed with a governmental agency, quoted,
cited or otherwise referred to without our prior written consent.
We hereby consent to the filing of this opinion as Exhibit 5.1 to
the Registration Statement and to the references to this firm under the heading
"Legal Matters" in the Prospectus, without admitting that we are "experts" under
the Securities Act or the rules and regulations promulgated thereunder with
respect to any part of the Registration Statement or Prospectus contained
therein.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
included in this Registration Statement and the incorporation by reference into
this Registration Statement of our reports dated February 20, 1996, included in
SEACOR Holdings, Inc.'s Annual Report on Form 10-K for the year ended December
31, 1995, June 7, 1996 included in SEACOR's Current Report on Form 8-K dated May
31, 1996 filed on June 7, 1996 and May 10, 1996 included in SEACOR's Current
Report on Form 8-K dated May 31, 1996 filed on June 14, 1996, and to all
references to our Firm included in this Registration Statement.
/s/Arthur Andersen LLP
New Orleans, Louisiana
January 31, 1997
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-3 (Registration No. 333- ) of our report dated February 20, 1996, on
our audit of the consolidated financial statements of CRN Holdings, Inc. and
Subsidiaries as of December 31, 1995 and for the year then ended, which report
is included in the Form 10-K of SEACOR Holdings, Inc. for the year ended
December 31, 1995. We also consent to the reference to our firm under the
caption "Experts."
/s/ Coopers & Lybrand L.L.P.
Melville, New York
January 31, 1997
