As filed with the Securities and Exchange Commission on January 18, 2001
Registration No. 333-53326
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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SEACOR SMIT INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3542736
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
11200 RICHMOND AVE., SUITE 400
HOUSTON, TEXAS 77082
(713) 782-5990
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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RANDALL BLANK
EXECUTIVE VICE PRESIDENT,
CHIEF FINANCIAL OFFICER AND SECRETARY
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)
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COPY TO:
David E. Zeltner, Esq. Deanna L. Kirkpatrick, Esq.
Rod D. Miller, Esq. Davis Polk & Wardwell
WEIL, GOTSHAL & MANGES LLP 450 LEXINGTON AVENUE
767 FIFTH AVENUE NEW YORK, NEW YORK 10017
NEW YORK, NEW YORK 10153 (212) 450-4000
(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, 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 earliest effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. |_|
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
NY2:\998566\08\73293.0004
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
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The information contained in this prospectus is not complete and may be changed.
We may not sell any shares of the common stock wuntil our registration statement
file with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities and we are not soliciting offers to buy
these securities inany jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION DATED JANUARY 18, 2001
PROSPECTUS
$200,000,000
SEACOR SMIT INC. LOGO
Common Stock
Preferred Stock
Debt Securities
Warrants
-----------------------------------------------
We may offer any combination of these securities at prices and on terms
to be determined at or prior to the time of sale. In addition, various selling
stockholders may offer and sell shares of common stock from time to time.
We urge you to read this prospectus and the accompanying prospectus
supplement carefully before you make your investment decision. We will provide
specific terms of these securities in supplements to this prospectus.
Our common stock is traded on the New York Stock Exchange under the
symbol "CKH." Unless we state otherwise in a prospectus supplement, we will not
list any other of these securities on any securities exchange.
Neither the securities and exchange commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus or the accompanying prospectus supplement is truthful or complete.
Any representation to the contrary is a criminal offense. This prospectus may
not be used to sell securities unless accompanied by a prospectus supplement.
The date of this prospectus is January __, 2001.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page Page
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<S> <C> <C>
ABOUT THIS PROSPECTUS.........................4 RATIO OF EARNINGS TO FIXED CHARGES.........6
ABOUT SEACOR SMIT, INC........................4 RISK FACTORS...............................6
WHERE YOU CAN FIND MORE INFORMATION...........4 DESCRIPTION OF SECURITIES..................6
INCORPORATION OF DOCUMENTS BY REFERENCE.......4 DESCRIPTION OF CAPITAL STOCK...............6
FORWARD LOOKING STATEMENTS....................5 DESCRIPTION OF DEBT SECURITIES............11
USE OF PROCEEDS...............................5 PLAN OF DISTRIBUTION......................18
LEGAL MATTERS.............................19
EXPERTS...................................19
</TABLE>
We may not sell these securities or accept any offer to buy these
securities until we deliver this prospectus and an accompanying prospectus
supplement in final form. We are not using this prospectus and any accompanying
prospectus supplement to offer to sell these securities or to solicit offers to
buy these securities in any place where the offer or sale is not permitted.
No dealer, salesperson or other person has been authorized to give any
information or to make any representations other than those contained or
incorporated by reference in this prospectus and any accompanying prospectus
supplement in connection with the offer contained in this prospectus and any
accompanying prospectus supplement and, if given or made, such information or
representations must not be relied upon as having been authorized by Seacor Smit
Inc. or any underwriters. This prospectus and any accompanying prospectus
supplement do not constitute any offer or solicitation 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
anyone to whom it is unlawful to make such offer or solicitation.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission using a "shelf" registration process.
Under this shelf process, we may sell any combination of the securities
described in this prospectus in one or more offerings up to a total dollar
amount of proceeds of $200 million. In addition, various selling stockholders
may sell shares of our common stock. This prospectus provides you with a general
description of the securities we and the selling stockholders may offer. Each
time we sell securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering and the manner in
which the securities will be offered. The prospectus supplement may also add,
update, or change information contained in this prospectus. You should read both
this prospectus and any prospectus supplement together with additional
information described under the heading "Where You Can Find More Information."
ABOUT SEACOR SMIT INC.
We are a major provider of offshore marine services to the oil and gas
exploration and production industry. We are also one of the leading providers of
oil spill response services to owners of tank vessels and oil storage,
processing and handling facilities, and own a substantial minority equity
interest in a company that owns and operates mobile offshore jackup drilling
rigs.
Additional information regarding us, including our audited financial
statements and descriptions of our business, is contained in the documents
incorporated by reference in this prospectus. See "Where You Can Find More
Information" below and "Incorporation of Documents by Reference" below.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission ("SEC"). Copies of
these reports, proxy statements and other information may be read and copied at
the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C.
20549. You may request copies of these documents by writing to the SEC and
paying a fee for the copying costs. You may also call the SEC at 1-800-SEC-0330
for further information on the operation of the Public Reference Room. Our SEC
filings are also available to the public from the SEC's web site at
http://www.sec.gov. Our common stock is traded on the New York Stock Exchange
and you may inspect the reports, proxy statements and other information we file
with the New York Stock Exchange at its offices located at 20 Broad Street, New
York, New York 10005.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" certain of our publicly
filed documents into this prospectus, which means that we may disclose material
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus and any
later information that we file with the SEC will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any additional documents we file with the SEC under Sections 13(a) or
14 of the Securities Exchange Act of 1934 until the offering of the common stock
is terminated. This prospectus is part of a registration statement on Form S-3
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that we filed with the SEC and does not contain all of the information set forth
in the registration statement.
The following documents that we previously filed with the SEC are
incorporated by reference:
(1) our Annual Report on Form 10-K for the
fiscal year ended December 31, 1999 (as
amended on Form 10-K/A filed on April 6,
2000);
(2) our Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, 2000, June
30, 2000 and September 30, 2000, filed on
May 15, 2000, August 14, 2000 and November
14, 2000, respectively;
(3) our Current Reports on Form 8-K filed on
June 16, 2000 and January 18, 2001; and
(4) the description of our common stock
contained in our registration statements on
Form 8-A filed on November 30, 1992 and
October 9, 1996, including any amendment or
report filed for the purposes of updating
such description.
We will provide any person to whom a copy of this prospectus is
delivered, on written or oral request, a copy of any or all of the documents
incorporated by reference, other than exhibits to those documents unless
specifically incorporated by reference. You should direct any requests for
documents to SEACOR SMIT Inc., 1370 Avenue of the Americas, 25th Floor, New
York, New York 10019, Attention: Corporate Secretary.
FORWARD LOOKING STATEMENTS
Certain statements contained or incorporated by reference in this
prospectus, including without limitation, statements containing the words
"believes," "anticipates," "hopes," "intends," "expects," "will," "plans," and
other similar words may constitute "forward-looking statements" within the
meaning of the Private Securities Litigation Reform Act of 1995. These
forward-looking statements involve known and unknown risks, uncertainties and
other factors, including those described in the section entitled "Risk Factors,"
that may cause our actual results to differ materially from expectations. Given
these uncertainties, prospective investors are cautioned not to place undue
reliance on those forward-looking statements. We disclaim any obligation to
update or to publicly announce any updates or revisions to any of the
forward-looking statements contained or incorporated by reference in this
prospectus to reflect any change in our expectations with regard thereto or any
change in events, conditions, circumstances or assumptions underlying the
statements.
USE OF PROCEEDS
Unless otherwise specified in a prospectus supplement, we intend to use
the net proceeds of any securities sold for general corporate purposes. We will
not receive any proceeds from the sale of shares of common stock by the selling
stockholders.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table shows our ratio of earnings to fixed charges for
the nine months ended September 30, 2000 and for each of the five most recent
fiscal years.
<TABLE>
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FISCAL YEAR ENDED NINE MONTHS ENDED
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DECEMBER 31, SEPTEMBER 30,
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1997 1998 1999 1998 1999 2000
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges 12.1 5.9 2.0 6.3 2.1 2.9
</TABLE>
In computing the ratio, earnings consist of pre-tax income from
continuing operations, excluding losses of unconsolidated affiliates, plus fixed
charges. Fixed charges represent total interest charges, a portion of operating
rentals representative of the interest factor, and amortization of debt discount
and expense.
RISK FACTORS
The prospectus supplement applicable to each type or series of
securities we offer will contain a discussion of risks applicable to an
investment in SEACOR SMIT and to the particular types of securities that we are
offering under that prospectus supplement. Prior to making a decision about
investing in our securities, you should carefully consider the specific factors
discussed under the caption "Risk Factors" in the applicable prospectus
supplement, together with all of the other information contained in the
prospectus supplement or appearing or incorporated by reference in this
prospectus.
DESCRIPTION OF SECURITIES
This prospectus contains a summary of the common stock, preferred
stock, debt securities, and warrants. These summaries are not meant to be a
complete description of each security. However, this prospectus and the
accompanying prospectus supplement contain the material terms and conditions for
each security.
Any of the securities described herein and in a prospectus supplement
may be issued separately or as part of a unit consisting of two or more
securities, which may or may not be separable from one another.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock is 40 million shares of common stock,
$0.01 par value, and 10 million shares of preferred stock, $0.01 par value. At
November 7, 2000, 16,995,400 shares of common stock and no shares of preferred
stock were outstanding. In addition to the summary of our capital stock that
follows, we encourage you to review our restated certificate of incorporation,
as amended, and amended and restated bylaws, which we have filed with the SEC.
COMMON STOCK
Holders of our common stock are entitled to one vote for each share
held on all matters submitted to a vote of stockholders and do not have
cumulative voting rights. Accordingly, holders of a plurality of the shares of
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common stock entitled to vote in any election of directors may elect directors.
Holders of common stock are entitled to receive proportionately any dividends as
may be declared by our board of directors, subject to any preferential dividend
rights of outstanding preferred stock. Upon our liquidation, dissolution or
winding up, the holders of common stock are entitled to receive proportionately
our net assets available after the payment of all debts and other liabilities
and subject to the prior rights of any outstanding preferred stock. Holders of
common stock have no preemptive, subscription, redemption or conversion rights.
The rights, preferences and privileges of holders of common stock are subject
to, and may be adversely affected by, the rights of the holders of shares of any
series of preferred stock which we may designate and issue in the future.
The transfer agent and registrar for our common stock is Computershare
Investor Services LLC.
PREFERRED STOCK
We may issue preferred stock in one or more series with any rights and
preferences that may be authorized by our board of directors. A prospectus
supplement relating to any series of preferred stock being offered will include
specific terms relating to the offering. They will include:
o the title and stated value of the preferred stock;
o the price or prices at which the preferred stock may be
purchased;
o the number of shares of the preferred stock offered, the
liquidation preference per share, and the offering price of
the preferred stock;
o the dividend rate(s), period(s), and/or payment date(s) or
method(s) of calculation thereof applicable to the preferred
stock;
o whether dividends shall be cumulative or non cumulative and,
if cumulative, the date from which dividends on the preferred
stock shall accumulate;
o the procedures for an auction and remarketing, if any, for the
preferred stock;
o the provisions for a sinking fund, if any, for the preferred
stock;
o the voting rights of the preferred stock;
o the provisions for redemption, if applicable, of the preferred
stock;
o the terms and conditions, if applicable, upon which the
preferred stock will be convertible into shares of our common
stock, including the conversion price, or the manner of
calculating the conversion price and conversion period;
o if appropriate, a discussion of United States federal income
tax considerations applicable to the preferred stock;
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o all series of preferred stock rank on a parity with each other
and rank senior to common stock with respect to payment of
dividends and distributions of assets upon liquidation; and
o any other specific terms, preferences, rights, limitations, or
restrictions of the preferred stock.
Holders of our preferred stock will have no preemptive rights.
WARRANTS
We may issue warrants, including warrants to purchase common stock,
preferred stock, debt securities, or any combination of the foregoing. Warrants
may be issued independently or together with any securities and may be attached
to or separate from the securities. The warrants will be issued under warrant
agreements to be entered into between us and a warrant agent as detailed in the
prospectus supplement relating to warrants being offered.
The applicable prospectus supplement will describe the following terms,
where applicable, of the warrants in respect of which this prospectus is being
delivered:
o the title of the warrants;
o the aggregate number of the warrants;
o the price or prices at which the warrants will be issued;
o the currencies in which the price or prices of the warrants
may be payable;
o the designation, amount, and terms of the offered securities
purchasable upon exercise of the warrants;
o the designation and terms of the other offered securities, if
any, with which the warrants are issued and the number of the
warrants issued with each security;
o if applicable, the date on and after which the warrants and
the offered securities purchasable upon exercise of the
warrants will be separately transferable;
o the price or prices at which and currency or currencies in
which the offered securities purchasable upon exercise of the
warrants may be purchased;
o the date on which the right to exercise the warrants shall
commence and the date on which the right shall expire;
o the minimum or maximum amount of the warrants which may be
exercised at any one time;
o information with respect to book entry procedures, if any;
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o a discussion of any federal income tax considerations; and
o any other material terms of the warrants, including terms,
procedures, and limitations relating to the exchange and
exercise of the warrants.
ANTITAKEOVER EFFECTS OF CERTAIN PROVISIONS OF OUR CERTIFICATE OF INCORPORATION
AND BYLAWS
Certain provisions of our certificate of incorporation and bylaws,
which we summarize in the following paragraphs, may be deemed to have an
antitakeover effect and may delay, defer or prevent a tender offer or takeover
attempt that a stockholder might consider in its best interest, including those
attempts that might result in a premium over the market price for the shares
held by stockholders.
Our certificate of incorporation requires the affirmative vote of the
holders of not less than 66 2/3% of the voting power of our outstanding shares
to approve any merger, consolidation or similar business combination transaction
in which we are not the surviving corporation or in which our shares are
exchanged for or changed into other securities, cash or other property.
Our certificate of incorporation provides that stockholders may take
action by written consent, but only if the holders of at least 66 2/3% of the
voting power of our outstanding shares so consent. Special meetings of
stockholders may be called only by the chairman of the board of directors, the
president or a majority of the board of directors.
Our by-laws provide that stockholders seeking to bring business before
an annual meeting of stockholders, or to nominate candidates for election as
directors at an annual meeting of stockholders or at a special meeting of
stockholders, must provide timely notice of their proposals to the board of
directors in writing. To be timely as to bringing business before an annual
meeting of stockholders, a stockholder's notice must be delivered to or mailed
and received at our principal executive offices not less than 90 days prior to
the anniversary of the previous year's annual meeting of stockholders (or, if
there was no prior annual meeting, not less than 90 days before the second
Tuesday in May of the current year). If the date of the annual meeting of
stockholders has been changed to be more than 20 calendar days earlier than or
60 calendar days after such anniversary, for notice by the stockholder to be
timely, we must receive such notice not later than the later of:
o 90 days prior to the annual meeting of stockholders and
o the seventh day following the date on which notice of the date
of the meeting is given to stockholders or made public,
whichever occurs first.
To be timely as to nominating candidates for election as directors, a
stockholder's notice must be delivered or mailed and received by our secretary
not less than, with respect to an election at an annual meeting, 90 days prior
to the anniversary of the previous year's annual meeting, or, if there was no
prior annual meeting not less than 90 days prior to the third Tuesday in October
of the current year. With respect to an election at a special meeting of
stockholders, our secretary must receive the stockholder's notice not less than
the close of business on the fifth day following the date on which notice of the
meeting is given to stockholders. Our by-laws also specify certain requirements
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as to the form and content of a stockholder's notice both as to bringing
business before an annual meeting of stockholders and as to nominating
candidates for election as directors. These provisions could have the effect of
delaying stockholders from bringing matters before an annual meeting of
stockholders or from making nominations for directors at an annual meeting of
stockholders.
Our certificate of incorporation and our by-laws require the
affirmative vote of the holders of not less than 66 2/3% of the voting power of
our outstanding shares to amend or adopt provisions inconsistent with several of
the provisions described that may have an anti-takeover effect.
The authorized but unissued shares of common stock and preferred stock
are available for future issuance without stockholder approval. We may use these
additional shares for a variety of corporate purposes, including future public
offerings to raise additional capital, corporate acquisitions and employee
benefit plans. The existence of authorized by unissued shares of common stock
and preferred stock could render more difficult or discourage an attempt to
obtain control of our company by means of a proxy contest, tender offer, merger
or otherwise.
The Delaware Corporation Law provides generally that the affirmative
vote of a majority of the shares entitled to vote on any matter is required to
amend a corporation's certificate of incorporation or by-laws, unless a
corporation's certificate of incorporation or by-laws, as the case may be,
requires a greater percentage.
Our certificate of incorporation provides that we have opted out of the
provisions of Section 203 of the Delaware General Corporation Law. In general,
Section 203 prohibits a publicly held Delaware corporation from engaging in a
"business combination" with an "interested stockholder" for a period of three
years after the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in a prescribed manner.
Because we have opted out in the manner permitted under Delaware law, the
restrictions of this provision will not apply to us.
LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS
As permitted by applicable Delaware law, our certificate of
incorporation includes a provision to eliminate the personal liability of our
directors for monetary damages for breach or alleged breach of their fiduciary
duties as directors, subject to limited exceptions. In addition, our certificate
of incorporation and bylaws will provide that we are required to indemnify our
officers and directors under a variety of circumstances, including those
circumstances in which indemnification would otherwise be discretionary, and we
are required to advance expenses to our officers and directors as incurred in
connection with proceedings against them for which they may be indemnified. We
will also obtain insurance in amounts commensurate with similar public companies
covering our directors and officers from claims made in connection with their
serving as our directors and officers. We believe that these indemnification
provisions are necessary to attract and retain qualified persons as directors
and officers.
At present, we are not aware of any pending or threatened litigation or
proceeding involving a director, officer, employee or agent of ours in which
indemnification would be required or permitted.
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Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be granted to directors, officers or persons controlling us
under the foregoing provisions, we have been informed that in the opinion of the
SEC this indemnification is against public policy as expressed in the Securities
Act of 1933 and is therefore unenforceable.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth some general terms and provisions
of the debt securities to which any prospectus supplement may relate. The
particular terms of the debt securities offered by any prospectus supplement and
the extent, if any, to which such general provisions may not apply to the debt
securities so offered will be described in the prospectus supplement relating to
such debt securities. For more information please refer to the applicable
indenture. Capitalized terms used in this prospectus that are not defined will
have the meanings given them in these documents.
Any senior debt securities will be issued under a senior indenture to
be entered into between us and the trustee named in the senior indenture, also
referred to as the "senior trustee." Any subordinated debt securities will be
issued under a subordinated indenture to be entered into between us and the
trustee named in the subordinated indenture, also referred to as the
"subordinated trustee." As used in this registration statement, the term
"indentures" refers to both the senior indenture and the subordinated indenture,
as applicable. Both indentures will be qualified under the Trust Indenture Act.
As used in this registration statement, the term "debt trustee" refers to either
the senior trustee or the subordinated trustee, as applicable.
The following summaries of some material provisions of the senior debt
securities, the subordinated debt securities, and the indentures are subject to,
and qualified in their entirety by reference to, all the provisions of the
indenture and any supplemental indenture applicable to a particular series of
debt securities, including the definitions in this registration statement of
some terms. Except as otherwise indicated, the terms of any senior indenture and
subordinated indenture, as applicable, will be identical.
GENERAL
Each prospectus supplement will describe the following terms relating
to a series of debt securities:
o the title and aggregate principal amount of the debt
securities;
o whether the debt securities are senior debt securities or
subordinated debt securities and the terms of subordination;
o any limit on the amount of debt securities that may be issued;
o whether any of the debt securities will be issuable in whole
or in part in temporary or permanent global form or in the
form of book entry securities;
o the maturity date(s) of the debt securities;
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o the annual interest rate(s) (which may be fixed or variable)
or the method for determining the rate(s) and the date(s)
interest will begin to accrue on the debt securities, the
date(s) interest will be payable, and the regular record dates
for interest payment dates or the method for determining the
record date(s);
o the place(s) where payments with respect to the debt
securities shall be payable;
o our right, if any, to defer payment of interest on the debt
securities and the maximum length of any deferral period;
o the date, if any, after which, and the price(s) at which, the
series of debt securities may, pursuant to any optional
redemption provisions, be redeemed at our option, and other
related terms and provisions;
o the date(s), if any, on which, and the price(s) at which we
are obligated, pursuant to any mandatory sinking fund
provisions or otherwise, to redeem, or at the holder's option
to purchase, the series of debt securities and other related
terms and provisions;
o the denominations in which the series of debt securities will
be issued, if other than denominations of $1,000 (or the
equivalent amount in foreign currency) and any integral
multiple thereof;
o any mandatory or optional sinking fund or similar provisions
respecting the debt securities;
o the currency or currency units in which payment of the
principal of, premium, if any, and interest on the debt
securities shall be payable;
o whether and under what circumstances we will pay additional
amounts on any debt securities held by a person who is not a
United States person for tax purposes and whether we can
redeem the debt securities if we have to pay additional
amounts;
o the terms pursuant to which the debt securities are subject to
defeasance and satisfaction and discharge;
o any addition to, or modification or deletion of, any event of
default or any covenant specified in the applicable indenture
with respect to the debt securities;
o the terms and conditions, if any, pursuant to which the debt
securities are secured; and
o any other terms of the debt securities.
The debt securities may be issued as original issue discount
securities. An original issue discount security is a debt security, including
any zero coupon debt security, which:
o is issued at a price lower than the amount payable upon its
stated maturity; and
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o provides that upon redemption or acceleration of the maturity,
an amount less than the amount payable upon the stated
maturity, shall become due and payable.
United States federal income tax considerations applicable to debt
securities sold at an original issue discount security will be described in the
applicable prospectus supplement. In addition, United States federal income tax
or other considerations applicable to any debt securities which are denominated
in a currency or currency unit other than United States dollars may be described
in the applicable prospectus supplement.
Under the indentures, we will have the ability, in addition to the
ability to issue debt securities with terms different from those of debt
securities previously issued, without the consent of the holders, to reopen a
previous issue of a series of debt securities and issue additional debt
securities of that series, unless such reopening was restricted when the series
was created, in an aggregate principal amount determined by us.
CONVERSION OR EXCHANGE RIGHTS
The terms, if any, on which a series of debt securities may be
convertible into or exchangeable for our common stock or other of our securities
will be detailed in the prospectus supplement relating thereto. Such terms will
include provisions as to whether conversion or exchange is mandatory, at the
option of the holder, or at our option, and may include provisions pursuant to
which the number of shares of our common stock or of our other securities to be
received by the holders of such series of debt securities would be subject to
adjustment.
GUARANTEES
Any senior or subordinated debt securities may be guaranteed by one or
more of our direct and indirect subsidiaries. Each prospectus supplement will
describe any guarantees for the benefit of the series of debt securities to
which it relates.
CONSOLIDATION, MERGER OR SALE
Unless noted otherwise in a prospectus supplement, the indentures will
not contain any covenant which restricts our ability to merge or consolidate, or
sell, convey, transfer, or otherwise dispose of all or substantially all of
their assets. However, any successor or acquirer of such assets must assume all
of our obligations under the indentures or the debt securities, as appropriate.
EVENTS OF DEFAULT UNDER THE INDENTURE
The following are events of default under the indentures with respect
to any series of debt securities issued:
o failure to pay interest on the debt securities when due and
such failure continues for 30 days and the time for payment
has not been extended or deferred;
o failure to pay the principal or premium of the debt
securities, if any, when due;
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o failure to deposit any sinking fund payment, when due, for any
debt security and in the case of the subordinated indenture,
whether or not the deposit is prohibited by the subordination
provisions;
o failure to observe or perform any other covenant contained in
the debt securities or the indentures other than a covenant
specifically relating to another series of debt securities,
and such failure continues for 60 days after we receive notice
from the debt trustee or holders of at least 25% in aggregate
principal amount of the outstanding debt securities of that
series;
o if the debt securities are convertible into shares of our
common stock or other of our securities, failure by us to
deliver common stock or the other securities when the holder
or holders of the debt securities elect to convert the debt
securities into shares of our common stock or other of our
securities; and
o particular events of bankruptcy, insolvency, or
reorganization.
The supplemental indenture or the form of security for a particular
series of debt securities may include additional events of default or changes to
the events of default described above. For any additional or different events of
default applicable to a particular series of debt securities, see the prospectus
supplement relating to such series.
If an event of default with respect to debt securities of any series
occurs and is continuing, the debt trustee or the holders of at least 25% in
aggregate principal amount of the outstanding debt securities of that series, by
notice in writing to us and to the debt trustee if notice is given by such
holders, may declare the unpaid principal, premium, if any, and accrued
interest, if any, due and payable immediately.
The holders of a majority in principal amount of the outstanding debt
securities of an affected series may waive any default or event of default with
respect to such series and its consequences, except defaults or events of
default regarding payment of principal, premium, if any, or interest on the debt
securities. Any such waiver shall cure such default or event of default.
Subject to the terms of the indentures, if an event of default under an
indenture shall occur and be continuing, the debt trustee will be under no
obligation to exercise any of its rights or powers under such indenture at the
request or direction of any of the holders of the applicable series of debt
securities, unless such holders have offered the debt trustee reasonable
indemnity. The holders of a majority in principal amount of the outstanding debt
securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the debt trustee,
or exercising any trust or power conferred on the debt trustee, with respect to
the debt securities of that series, provided that:
o it is not in conflict with any law or the applicable
indenture;
o the debt trustee may take any other action deemed proper by it
which is not inconsistent with such direction; and
14
<PAGE>
o subject to its duties under the Trust Indenture Act, the debt
trustee need not take any action that might involve it in
personal liability or might be unduly prejudicial to the
holders not involved in the proceeding.
A holder of the debt securities of any series will only have the right
to institute a proceeding under the indentures or to appoint a receiver or
trustee, or to seek other remedies if:
o the holder has given written notice to the debt trustee of a
continuing event of default with respect to that series;
o the holders of at least 25% in aggregate principal amount of
the outstanding debt securities of that series have made
written request, and such holders have offered reasonable
indemnity to the debt trustee to institute such proceedings as
trustee; and
o the debt trustee does not institute such proceeding, and does
not receive from the holders of a majority in aggregate
principal amount of the outstanding debt securities of that
series other conflicting directions within 60 days after such
notice, request, and offer.
These limitations do not apply to a suit instituted by a holder of debt
securities if we default in the payment of the principal, premium, if any, or
interest on, the debt securities.
We will periodically file statements with the debt trustee regarding
its compliance with all of the conditions and covenants in the indentures.
MODIFICATION OF INDENTURE
We and the debt trustee may change an indenture without the consent of
any holders with respect to specific matters, including:
o to cure any ambiguity, omission, defect, or inconsistency in
such indenture;
o to provide for the assumption by a successor person of our
obligations under such indenture;
o to add guarantees, including subsidiary guarantees, with
respect to debt securities or to release subsidiary guarantors
from subsidiary guarantees as provided by the terms of an
indenture or to secure debt securities;
o to add to the covenants for the benefit of holders of debt
securities or to surrender any right or power conferred upon
us;
o to change anything that does not materially adversely affect
the interests of any holder of debt securities of any series;
or
o to comply with any requirement of the SEC in connection with
the qualification of an indenture under the Trust Indenture
Act.
15
<PAGE>
In addition, under the indentures, the rights of holders of a series of
debt securities may be changed by us and the debt trustee with the written
consent of the holders of at least a majority in aggregate principal amount of
the outstanding debt securities of each series that is affected. However, the
following changes may only be made with the consent of each holder of any
outstanding debt securities affected:
o change the fixed maturity of such series of debt securities;
o reduce the principal amount, reduce the rate of, or extend the
time of payment of interest, or any premium payable upon the
redemption of any such debt securities;
o reduce the amount of principal of an original issue discount
security or any other debt security payable upon acceleration
of the maturity thereof;
o a change in the currency in which any debt security or any
premium or interest is payable;
o impair the right to enforce any payment on or with respect to
any debt security;
o adversely change the right to convert or exchange, including
decreasing the conversion rate or increasing the conversion
price of, such debt security (if applicable);
o in the case of the subordinated indenture, modify the
subordination provisions in a manner adverse to the holders of
the subordinated debt securities;
o if the debt securities are secured, change the terms and
conditions pursuant to which the debt securities are secured
in a manner adverse to the holders of the secured debt
securities;
o reduce the percentage in principal amount of outstanding debt
securities of any series, the consent of whose holders is
required for modification or amendment of the applicable
indenture or for waiver of compliance with certain provisions
of the applicable indenture or for waiver of certain defaults;
o reduce the requirements contained in the applicable indenture
for quorum or voting;
o change any of our obligations to maintain an office or agency
in the places and for the purposes required by the indentures;
or
o modify any of the above provisions.
FORM, EXCHANGE, AND TRANSFER
The debt securities of each series will be issuable only in fully
registered form without coupons and, unless otherwise specified in the
applicable prospectus supplement, in denominations of $1,000 (or the equivalent
amount in foreign currency) and any integral multiple thereof. The indentures
will provide that debt securities of a series may be issuable in temporary or
16
<PAGE>
permanent global form and may be issued as book entry securities that will be
deposited with, or on behalf of, The Depository Trust Company or another
depository we name and identify in a prospectus supplement with respect to such
series.
At the option of the holder, subject to the terms of the indentures and
the limitations applicable to global securities described in the applicable
prospectus supplement, debt securities of any series will be exchangeable for
other debt securities of the same series, in any authorized denomination and of
like tenor and aggregate principal amount.
Subject to the terms of the indentures and the limitations applicable
to global securities detailed in the applicable prospectus supplement, debt
securities may be presented for exchange or for registration of transfer (duly
endorsed or with the form of transfer endorsed thereon duly executed if so
required by us or the security registrar) at the office of the security
registrar or at the office of any transfer agent designated by us for such
purpose. Unless otherwise provided in the debt securities to be transferred or
exchanged, no service charge will be made for any registration of transfer or
exchange, but we may require payment of any taxes or other governmental charges.
The security registrar and any transfer agent (in addition to the security
registrar) initially designated by us for any debt securities will be named in
the applicable prospectus supplement. We may at any time designate additional
transfer agents or rescind the designation of any transfer agent or approve a
change in the office through which any transfer agent acts, except that we will
be required to maintain a transfer agent in each place of payment for the debt
securities of each series.
If the debt securities of any series are to be redeemed, we will not be
required to:
o issue, register the transfer of, or exchange any debt
securities of that series during a period beginning at the
opening of business 15 days before the day of mailing of a
notice of redemption of any such debt securities that may be
selected for redemption and ending at the close of business on
the day of such mailing; or
o register the transfer of or exchange any debt securities so
selected for redemption, in whole or in part, except the
unredeemed portion of any such debt securities being redeemed
in part.
INFORMATION CONCERNING THE DEBT TRUSTEE
The debt trustee, other than during the occurrence and continuance of
an event of default under an indenture, undertakes to perform only such duties
as are specifically detailed in the indentures and, upon an event of default
under an indenture, must use the same degree of care as a prudent person would
exercise or use in the conduct of his or her own affairs. Subject to this
provision, the debt trustee is under no obligation to exercise any of the powers
given it by the indentures at the request of any holder of debt securities
unless it is offered reasonable security and indemnity against the costs,
expenses, and liabilities that it might incur. The debt trustee is not required
to spend or risk its own money or otherwise become financially liable while
performing its duties unless it reasonably believes that it will be repaid or
receive adequate indemnity.
17
<PAGE>
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement,
payment of the interest on any debt securities on any interest payment date will
be made to the person in whose name such debt securities (or one or more
predecessor securities) are registered at the close of business on the regular
record date for such interest.
Principal of and any premium and interest on the debt securities of a
particular series will be payable at the office of the paying agents designated
by us, except that unless otherwise indicated in the applicable prospectus
supplement, interest payments may be made by check mailed to the holder. Unless
otherwise indicated in such prospectus supplement, the corporate trust office of
the debt trustee in The City of New York will be designated as our sole paying
agent for payments with respect to debt securities of each series. Any other
paying agents initially designated by us for the debt securities of a particular
series will be named in the applicable prospectus supplement. We will be
required to maintain a paying agent in each place of payment for the debt
securities of a particular series.
All moneys paid by us to a paying agent or the debt trustee for the
payment of the principal of or any premium or interest on any debt securities
which remains unclaimed at the end of two years after such principal, premium,
or interest has become due and payable will be repaid to us, and the holder of
the security thereafter may look only to us for payment thereof.
GOVERNING LAW
The indentures and the debt securities will be governed by and
construed in accordance with the laws of the State of New York except for
conflicts of laws provisions and to the extent that the Trust Indenture Act
shall be applicable.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless noted otherwise in a prospectus supplement, any subordinated
debt securities will be unsecured and will be subordinate and junior in priority
of payment to some of our other indebtedness to the extent described in a
prospectus supplement. Additionally, unless noted otherwise in a prospectus
supplement, the subordinated indenture will not limit the amount of subordinated
debt securities which we may issue, nor will it limit us from issuing any other
secured or unsecured debt.
PLAN OF DISTRIBUTION
We and the selling stockholders may sell common stock, preferred stock,
warrants, or any series of debt securities being offered hereby in one or more
of the following ways at various times:
o to underwriters for resale to the public or to institutional
investors;
o directly to institutional investors; or
o through agents to the public or to institutional investors.
18
<PAGE>
The prospectus supplements will detail the terms of the offering of the
securities, including the name or names of any underwriters or agents, the
purchase price of such securities, and the proceeds to us from such sale, any
underwriting discounts or agency fees and other items constituting underwriters'
or agents' compensation, any initial public offering price, any discounts or
concessions allowed or reallowed or paid to dealers, the name or names of any
selling stockholders, and any securities exchanges on which such securities may
be listed.
If underwriters are used in the sale, the securities will be acquired
by the underwriters for their own account and may be resold at various times in
one or more transactions, including negotiated transactions, at a fixed public
offering price or prices, which may be changed, at market prices prevailing at
the time of sale, at prices related to such prevailing market prices, or at
negotiated prices.
Unless otherwise detailed in a prospectus supplement, the obligations
of the underwriters to purchase any series of securities will be subject to
specific conditions precedent and the underwriters will be obligated to purchase
all of such series of securities, if any are purchased.
Underwriters and agents may be entitled under agreements entered into
with us to indemnification by us against specific civil liabilities, including
liabilities under the Securities Act of 1933, or to contribution with respect to
payments which the underwriters or agents may be required to make in respect
thereof. Underwriters and agents may be customers of, engage in transactions
with, or perform services for us and our affiliates in the ordinary course of
business.
Each series of securities will be a new issue of securities and will
have no established trading market other than the common stock which is listed
on the NYSE. Any common stock sold pursuant to a prospectus supplement will be
listed on the NYSE, subject to official notice of issuance. Any underwriters to
whom securities are sold by us for public offering and sale may make a market in
the securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. The securities, other
than the common stock, may or may not be listed on a national securities
exchange.
LEGAL MATTERS
Legal matters relating to the securities offered hereby will be passed
upon for us by Weil, Gotshal & Manges LLP.
EXPERTS
The financial statements and schedule incorporated by reference in this
prospectus from our Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 (as amended on Form 10-K/A filed on April 6, 2000) have been
audited by Arthur Andersen LLP, independent public accountants, as stated in
their reports with respect thereto, which are incorporated herein by reference,
and have been so incorporated herein in reliance upon the authority of such firm
as experts in accounting and auditing in giving said reports.
19
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses to be borne by Champion in
connection with the offerings described in this registration statement. All such
expenses other than the Securities and Exchange Commission registration fee are
estimates.
Securities and Exchange Commission Registration Fee $50,000
Transfer Agent and Trustee Fees and Expenses 3,000
Printing and Engraving Fees and Expenses 5,000
Accounting Fees and Expenses 5,000
Legal Fees 20,000
Miscellaneous 2,000
-----
Total $85,000
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As more fully described below, Section 145 of the General Corporation
Law of the State of Delaware (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 III of our Amended and Restated By-laws provides
that we will 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 we may
indemnify pursuant thereto and in the manner prescribed thereby.
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 the person 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 the person in connection with
such action, suit or proceeding if the person acted in good faith and in a
manner the person 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 the person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a 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 the person 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 reasonable cause to believe that the person's
conduct was unlawful.
20
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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 the
person 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) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person 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 application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
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 present or former director, officer, employee or
agent is proper in the circumstances because the person has met the applicable
standard of conduct set forth above.
Section 145 of the DGCL permits a Delaware 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 such person in any such capacity,
or arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against such liability.
Section 102(b) of the DGCL enables a Delaware corporation to include a
provision in its certificate of incorporation eliminating or limiting the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. Our certificate of
incorporation contains provisions that limit the personal liability of each of
our directors to us and our stockholders for monetary damages for breach of
fiduciary duty as a director. These provisions eliminate personal liability to
the fullest extent permitted by the DGCL.
ITEM 16. EXHIBITS
The following is a list of all exhibits filed as a part of this registration
statement on Form S-3, including those incorporated in this registration
statement by reference.
Exhibit Number Description of Exhibits
-------------- -----------------------
1.1 The form of underwriting agreement will be filed as an exhibit
to a current report of the registrant and incorporated in this
registration statement by reference.
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Exhibit Number Description of Exhibits
-------------- -----------------------
3.1 Restated Certificate of Incorporation of SEACOR SMIT Inc.
(incorporated herein by reference to Exhibit 3.1(a) to the
Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1997, and filed with the SEC on August 14,
1997).
3.2 Certificate of Amendment to the Restated Certificate of
Incorporation of SEACOR SMIT Inc. (incorporated herein by
reference to Exhibit 3.1(b) to the Company's Quarterly Report
on Form 10-Q for the fiscal quarter ended June 30, 1997, and
filed with the SEC on August 14, 1997).
3.3 Amended and Restated By-laws of SEACOR Holdings, Inc.
(incorporated herein by reference to Exhibit 4.2 to the
Registration Statement on Form S-8 (No. 333-12637) of SEACOR
Holdings, Inc. filed with the SEC on September 25, 1996).
4.1 Form of Common Stock Certificate (incorporated herein by
reference to the Registration Statement on Form S-1 (No.
33-53744) of SEACOR Holdings, Inc. filed with the SEC on
October 26, 1992, as amended).
4.2** Form of senior indenture.
4.3** Form of subordinated indenture.
4.4 The form of any senior debt security with respect to each
particular series of senior debt securities issued hereunder
will be filed as an exhibit to a current report of the
registrant and incorporated in this registration statement by
reference.
4.5 The form of any subordinated debt security with respect to each
particular series of subordinated debt securities issued
hereunder will be filed as an exhibit to a current report of
the registrant and incorporated in this registration statement
by reference.
4.6 The form of any certificate of designation with respect to any
preferred stock issued hereunder will be filed as an exhibit to
a current report of the registrant and incorporated in this
registration statement by reference.
4.7 The form of warrant agreement will be filed as an exhibit to a
current report of the registrant and incorporated in this
registration statement by reference.
4.8 The form of any warrant with respect to each series of warrants
will be filed as an exhibit to a current report of the
registrant and incorporated in this registration statement by
reference.
5.1** Opinion of Weil Gotshal & Manges LLP.
12.1* Statement re: Computation of Ratio of Earnings to Fixed
Charges.
23.1** Consent of Arthur Andersen LLP, Independent Accountants.
23.2** Consent of Weil Gotshal & Manges LLP (included in Exhibit 5.1).
24 Power of Attorney (included on signature page of the
Registration Statement).
22
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Exhibit Number Description of Exhibits
-------------- -----------------------
25.1* A Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of the trustee under the
indentures.
----------
* Filed previously
** Filed herewith
ITEM 17. UNDERTAKINGS
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 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, each such post effective amendment shall be deemed to be
a new registration statement relating to the securities offered in this
registration statement, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(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.
The undersigned registrant hereby further undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered in this registration statement, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the registrant pursuant to the provisions detailed in Item 15, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer, or controlling person of the registrant
in the successful defense of any action, suit, or proceeding) is asserted by
such director, officer, or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
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 18, 2001.
SEACOR SMIT 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 constitutes and appoints Charles Fabrikant, Randall Blank and Dick
Fagerstal, or either of them, his attorney-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments
(including all post-effective amendments) to this registration statement, and to
sign any registration statement for the same offering covered by this
registration statement that is to be effective upon filing pursuant to Rule
462(b) promulgated under the Securities Act of 1933, and all post-effective
amendments thereto, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may 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.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
Chairman of the Board of January 18, 2001
----------------------------------- Directors, President and
Charles Fabrikant Chief Executive Officer
(Principal Executive Officer)
24
<PAGE>
/s/ Randall Blank Executive Vice President, Chief January 18, 2001
----------------------------------- Financial Officer and Secretary
Randall Blank (Principal Financial Officer )
Vice President January 18, 2001
----------------------------------- (Principal Accounting Officer
Lenny P. Dantin and Controller)
Director January 18, 2001
-----------------------------------
Granville E. Conway
Director January 18, 2001
-----------------------------------
Pierre de Demandolx
Director January 18, 2001
-----------------------------------
Richard M. Fairbanks III
Director January 18, 2001
-----------------------------------
Michael E. Gellert
Director January 18, 2001
-----------------------------------
John Hadjipateras
Director January 18, 2001
-----------------------------------
Antoon Kienhuis
Director January 18, 2001
-----------------------------------
Andrew R. Morse
Director January 18, 2001
-----------------------------------
Stephen Stamas
/s/ Randall Blank Attorney-In-Fact January 18, 2001
-----------------------------------
Randall Blank
</TABLE>
25
<PAGE>
EXHIBIT INDEX
Exhibit Number Description of Exhibits
-------------- -----------------------
4.2 Form of senior indenture.
4.3 Form of subordinated indenture.
5.1 Opinion of Weil Gotshal & Manges LLP.
23.1 Consent of Arthur Andersen LLP, Independent Accountants.
23.2 Consent of Weil Gotshal & Manges LLP (included in Exhibit 5.1).
26
