Exhibit 1.1
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1,136,365
SEACOR SMIT INC.
COMMON STOCK, PAR VALUE $0.01 PER SHARE
STANDBY AGREEMENT
January __, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. SEACOR SMIT INC., a Delaware corporation (the
"Company"), proposes to redeem $50,000,000 aggregate principal amount of its
outstanding 53/8% Convertible Subordinated Notes due November 15, 2006 (the
"Convertible Securities") and, in that connection, agrees with Credit Suisse
First Boston Corporation (the "Purchaser") as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Purchaser that:
(a) A registration statement (No. 333-_________), including
a form of prospectus, relating to the common stock, par value $0.01
per share, of the Company (the "Common Stock") issuable as Purchased
Shares (as hereinafter defined) in accordance with the provisions of
Section 3(a) hereof has been filed with the Securities and Exchange
Commission (the "Commission") and has been declared effective under
the Securities Act of 1933 (the "Act"). For purposes of this
Agreement, "Effective Time" means, the date and time as of which such
registration statement was declared effective by the Commission.
"Effective Date" means the date of the Effective Time. Such
registration statement, as amended at the Effective Time including
all material incorporated by reference therein, is hereinafter
referred to as the "Registration Statement", and the form of
prospectus relating to the Purchased Shares, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") under the Act or (if no such filing is required) as included
in the Registration Statement, including all material incorporated by
reference in such prospectus, is hereinafter referred to as the
"Prospectus". No document has been or will be prepared or distributed
in reliance on Rule 434 under the Act.
(b) On the Effective Date, the Registration Statement
conforms, and at the time of any filing of the Prospectus pursuant to
Rule 424(b), the Registration Statement and the Prospectus will
conform, in all respects to the requirements of the Act and the rules
and regulations of the Commission ("Rules and Regulations"), and
neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The preceding sentence does not
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apply to statements in or omissions from the Registration Statement
or Prospectus based upon written information furnished to the Company
by the Purchaser specifically for use therein, it being understood
and agreed that the only such information is that described as such
in Section 7(b).
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, except
where the failure to be so qualified would not have a material
adverse effect on the general affairs, prospects, management,
financial position, stockholders' equity or result of operations of
the Company and its subsidiaries, taken as a whole (a "Material
Adverse Effect"); and each subsidiary listed on Exhibit A hereto
(each a "Subsidiary") of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation.
(d) All of the outstanding shares of capital stock of the
Company have been validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the
description of the capital stock of the Company incorporated by
reference in the Prospectus; and all of the outstanding shares of
capital stock of each Subsidiary of the Company have been validly
authorized and issued, are fully paid and non-assessable and (except
for directors' qualifying shares) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims.
(e) As of the close of business on January __, 2001,
$181,600,000 principal amount of Convertible Securities were
outstanding, and the Company has duly authorized the redemption of up
to all of the outstanding Convertible Securities on February __, 2001
(the "Redemption Date"), at the redemption price of 102.99% of the
principal amount thereof plus accrued and unpaid interest thereon to
the Redemption Date, or a total of $[ ] per $1,000 principal amount;
and the Convertible Securities are convertible into 22.727 shares of
Common Stock per $1,000 principal amount of the Convertible
Securities, by surrender of the Convertible Securities to U.S. Bank
Trust National Association (the "Agent"), through The Depositary
Trust Company in accordance with its established procedures, prior to
the close of business on February __, 2001 (the "Expiration Date");
(f) The Purchased Shares have been validly authorized and
when delivered and paid for in accordance with this Agreement will be
validly issued, fully paid and non-assessable and will conform in all
material respects to the description of the capital stock of the
Company incorporated by reference in the Prospectus and the
stockholders of the Company will have no preemptive rights with
respect to the Purchased Shares.
(g) There are no contracts, agreements or understandings
between the Company and any person that would give rise to a valid
claim against the Company or the Purchaser for a brokerage
commission, finder's fee or other like payment as a result of the
offering of the Purchased Shares.
(h) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities with
the securities registered pursuant to the Registration Statement or
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with any securities being registered pursuant to any other
registration statement filed by the Company under the Act, except for
the Stockholders Agreement filed as Exhibit 10.12 to the Company's
Annual Report on Form 10-K for the year ended December 31, 1999 (the
"Stockholders Agreement"). The Company has obtained a valid waiver of
its rights under the Stockholders Agreement from each affiliate of
the Company that is a party thereto.
(i) The execution, delivery and performance of this
Agreement, the compliance by the Company with all of the provisions
hereof and the consummation by the Company of the transactions herein
contemplated will not conflict with nor result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement, stockholders' agreement or other agreement or instrument
to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound or to which any
of the property or assets of the Company or any of its Subsidiaries
is subject, nor will such action result in any violation of the
provisions of the Restated Certificate of Incorporation or Amended
By-laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its Subsidiaries or any of
their properties; and no consent, approval, authorization, order,
filing, registration or qualification of or with any such court or
governmental agency or body is required for the issuance of the
Purchased Shares by the Company or the consummation by the Company of
the transactions contemplated by this Agreement, except the
registration under the Act of the Purchased Shares and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Purchased Shares by the
Purchaser. The Company has full power and authority to authorize and
issue the Purchased Shares as contemplated by this Agreement.
(j) This Agreement has been duly authorized, executed and
delivered by the Company.
(k) Except as disclosed in the Prospectus and except as
would not be reasonably likely to have a Material Adverse Effect, the
Company and its Subsidiaries have good title to all real properties
and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in the Prospectus, the
Company and its subsidiaries hold any leased real or personal
property under valid and enforceable leases with no exception that
would materially interfere with the use made or to be made thereof by
them.
(l) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct
the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property
rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(m) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute,
any rule, regulation, decision or order of any governmental agency or
body or any court, domestic or foreign, relating to the use, disposal
or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental laws"),
owns or operates any real property contaminated with any substance
that is subject to any environmental laws, is liable for any off-site
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disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in
the aggregate have a Material Adverse Effect on the Company and its
subsidiaries taken as a whole; and the Company is not aware of any
pending investigation which might lead to such a claim.
(n) Except as disclosed in the Prospectus, there are no
legal or governmental proceedings pending to which the Company, or
any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the issuance and resale of the Purchased
Shares; and to the best of the Company's knowledge, no such
proceedings are threatened by governmental authorities or threatened
by others.
(o) The financial statements incorporated by reference in
the Registration Statement and Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries
as of the dates shown and their results of operations and cash flows
for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis; and
the schedule incorporated by reference in the Registration Statement
presents fairly the information required to be stated therein.
(p) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material change
in the capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, taken
as a whole, otherwise than as set forth or contemplated in the
Prospectus and, except as disclosed in or contemplated by the
Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(q) The Company is not and, upon the issuance of the
Purchased Shares and the application of the proceeds therefrom as
described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940.
(r) The Company is a citizen of the United States within
the meaning of Section 2 of the Shipping Act of 1916, as amended (the
"Shipping Act") and is qualified to engage in the coastwise trade of
the United States; the issue and sale of the Purchased Shares by the
Company and the compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions herein
contemplated will not cause the Company to cease to be a citizen of
the United States within the meaning of Section 2 of the Shipping Act
or cause the Company to cease to be qualified to engage in the
coastwise trade of the United States.
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(s) The Company and its subsidiaries hold all licenses,
consents and approvals required by, and are in compliance with, all
regulations of state, Federal and foreign governmental authorities
that regulate the conduct of the business of the Company and its
subsidiaries, except where the failure to hold any such license,
consent or approval or to be in compliance with any such regulation
would not have a Material Adverse Effect.
(t) National Response Corporation ("NRC") has been
designated an Oil Spill Removal Organization by the U.S. Coast Guard
pursuant to the Oil Pollution Act of 1990.
3. Agreement to Sell and Purchase. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Purchaser agrees that:
(a) The Purchaser will purchase from the Company at $[___]
per share (the "Purchase Price") the number of shares of Common Stock
necessary to provide the Company with the funds required to pay the
aggregate redemption price of up to $50,000,000 principal amount of
the $50,000,000 total principal amount of the Convertible Securities
called for redemption that remain outstanding on the Redemption Date
(the "Purchased Shares"). The Purchaser shall pay the Company for the
Purchased Shares in same day funds on February __, 2001 (the "Closing
Date").
(b) As compensation to the Purchaser for its commitment
hereunder, the Company will pay to the Purchaser, in same day funds,
(i) at the Execution Time, a standby fee of $[___], and (ii) on the
Closing Date, an amount equal to $[___] per Purchased Share.
"Execution Time" shall mean the date and time this Agreement is
executed and delivered by the parties hereto.
(c) At the Execution Time, the Purchaser and the Company
will enter into an equity forward transaction (the "Equity Forward")
in substantially the form attached hereto as Exhibit A.
(d) The Purchaser agrees to notify the Company when all
Purchased Shares have been sold or if any offering of Purchased
Shares is otherwise terminated.
(e) the Purchaser agrees that it has not solicited and
will not solicit conversion of the Convertible Securities.
4. Offering by Purchaser. It is understood that the Purchaser
proposes to offer the Purchased Shares for sale to the public as set forth in
the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
Purchaser that:
(a) If required, the Company will file the Prospectus with
the Commission pursuant to and in accordance with subparagraph (1) or
(2) (as consented to by the Purchaser, which consent will not be
unreasonably withheld) of Rule 424(b) not later than the second
business day following the execution and delivery of this Agreement
(or, if applicable and if consented to by the Purchaser, which
consent will not be unreasonably withheld, subparagraph (4) or (5)).
The Company will advise the Purchaser promptly of any such filing
pursuant to Rule 424(b).
(b) The Company will advise the Purchaser promptly of any
proposal to amend or supplement the registration statement as filed,
or the related prospectus or the Registration Statement or the
Prospectus and will not effect such amendment or supplementation
without the Purchaser's consent, which consent will not be
unreasonably withheld; and the Company will also advise the Purchaser
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promptly of any amendment or supplementation of the Registration
Statement or the Prospectus and of the institution by the Commission
of any stop order proceedings in respect of the Registration
Statement and will use reasonably its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time during the period when a prospectus
relating to the Purchased Shares is required to be delivered under
the Act in connection with sales by the Purchaser or dealer, which
shall in no event end earlier (but may end later) than the final
Settlement Date (as defined in the Equity Forward) under the Equity
Forward, any event occurs as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will
promptly notify the Purchaser of such event and will promptly prepare
and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance.
(d) As soon as practicable, the Company will make generally
available to its security holders an earnings statement covering a
period of at least 12 months beginning after the Effective Date which
will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Purchaser copies of the
Registration Statement, (2 of which will be signed and will include
all exhibits), and, during the period referred to in paragraph (c)
above, the Prospectus, and all amendments and supplements to such
documents, in each case in such quantities as the Purchaser requests.
The Prospectus shall be so furnished on or prior to 3:00 P.M., New
York time, on the business day following the Execution Time. All
other such documents shall be so furnished as soon as available. The
Company will pay the expenses of printing and distributing to the
Purchaser all such documents.
(f) The Company will arrange for the qualification of the
Purchased Shares for sale under the laws of such jurisdictions as the
Purchaser reasonably designates and will continue such qualifications
in effect so long as required for the distribution of the Purchased
Shares; provided, however, that the Company shall not be required in
connection therewith to qualify as a foreign corporation in any
jurisdiction in which it is not now so qualified or to take any
action that would subject it to general consent to service of process
or taxation other than as to matters and transactions relating to the
Prospectus or the Registration Statement or the offering or sale of
the Purchased Shares, in any jurisdiction in which it is not now so
subject.
(g) The Company will commence on or prior to the date
hereof (the "Mailing Date") the mailing of the required notice of the
redemption of the Convertible Securities on the Redemption Date in
the form submitted to the Purchaser and will furnish to the Purchaser
copies thereof in such quantities as it requests.
(h) The Company will direct the Agent to advise the
Purchaser's Transactions Advisory Group daily by telephone confirmed
by facsimile of the principal amount of Convertible Securities
surrendered for conversion into shares of Common Stock on the
preceding day and the principal amount of Convertible Securities
tendered to and accepted by the Agent for redemption.
(i) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, the charges of
the Agent, any filing fees and other expenses (including fees and
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disbursements of counsel) incurred in connection with qualification
of the Purchased Shares for sale under the laws of such jurisdictions
as the Purchaser designates and the printing of memoranda relating
thereto, and expenses incurred in distributing the Prospectus
(including any amendments and supplements thereto) to the Purchaser.
(k) The Company will arrange for the listing of the
Purchased Shares on the New York Stock Exchange, subject to notice of
issuance, prior to the Redemption Date.
6. Conditions of the Obligations of the Purchaser. The obligations of
the Purchaser hereunder will be subject to the accuracy of the representations
and warranties on the part of the Company contained herein, to the accuracy of
the statements of Company officers made in any certificate pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) On the Closing Date, the Purchaser shall have received
a letter (the "Initial Comfort Letter"), dated the date of delivery
thereof, of Arthur Andersen LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating that:
(i) in their opinion the financial statements and
schedules examined by them and included in the Registration
Statement comply as to form in all material respects with
the applicable accounting requirements of the Act and the
related published Rules and Regulations;
(ii) they have performed the procedures specified
by the American Institute of Certified Public Accountants
for a review of interim financial information as described
in Statement of Auditing Standards No. 71, Interim
Financial Information, on the unaudited financial
statements included in the Registration Statement;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available
interim financial statements of the Company, inquiries of
officials of the Company who have responsibility for
financial and accounting matters and other specified
procedures, nothing came to their attention that caused
them to believe that:
(A) the unaudited financial statements
included in the Registration Statement do not
comply as to form in all material respects with
the applicable accounting requirements of the Act
and the related published Rules and Regulations
or any material modifications should be made to
such unaudited financial statements for them to
be in conformity with generally accepted
accounting principles;
(B) at the date of the latest
available balance sheet read by such accountants,
or at a subsequent specified date not more than
three business days prior to the date of this
Agreement, there was any change in the capital
stock or any increase in short-term indebtedness
or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the
latest available balance sheet read by such
accountants, there was any decrease in
consolidated net current assets or net assets, as
compared with amounts shown on the latest balance
sheet included in the Prospectus; or
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(C) for the period from the closing
date of the latest income statement included in
the Prospectus to the closing date of the latest
available income statement read by such
accountants there were any decreases, as compared
with the corresponding period of the previous
year and with the period of corresponding length
ended the date of the latest income statement
included in the Prospectus, in consolidated net
sales or net operating income, or in the total or
per share amounts of consolidated net income;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and other
financial information contained in the Registration
Statement (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of the Company
and its subsidiaries subject to the internal controls of
the Company's accounting system or are derived directly
from such records by analysis or computation) with the
results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed
included in the Registration Statement for purposes of this
subsection.
(b) The Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to the close of business on the final
Settlement Date under the Equity Forward, no stop order suspending
the effectiveness of the Registration Statement shall have been
issued and no proceedings for the purpose shall have been instituted
or, to the knowledge of the Company or the Purchaser, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations
of the Company or its subsidiaries which, in the judgment of the
Purchaser, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the purchase of and payment
for the Purchased Shares or the resale of the Purchased Shares, (ii)
any downgrading in the rating of any debt securities of the Company
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than
an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating); (iii)
any suspension or limitation of trading in securities generally on
the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by U.S. Federal or New
York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration
of war by Congress or any other substantial national or international
calamity or emergency if, in the judgment of the Purchaser, the
effect of any such outbreak, escalation, declaration, calamity or
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emergency makes it impractical or inadvisable to proceed with the
purchase of and payment for the Purchased Shares or the resale of
such shares.
(d) On, the Closing Date, the Purchaser shall have received
an opinion, dated the date of delivery thereof, of Weil, Gotshal &
Manges LLP*, counsel for the Company, to the effect that:
(i) Each of the Company and its Subsidiaries is
validly existing as a corporation or limited liability
company, as the case may be, in good standing under the
laws of its state of organization, with full power and
authority to own its properties and conduct its business as
described in the Prospectus; and each of the Company and
its Subsidiaries is duly qualified to do business as a
foreign corporation or limited liability company, as the
case may be, and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it
owns or leases material properties or conducts material
business, except where the failure to have such
qualification would not have a Material Adverse Effect;
(ii) All the outstanding shares of capital stock,
or limited liability company interests, as the case may be,
of each Subsidiary have been duly and validly authorized
and issued and are fully paid and non-assessable, and are
owned by the Company either directly or through wholly
owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after due
inquiry, any other security interests, claims, liens or
encumbrances;
(iii) The redemption of $75,000,000 in aggregate
principal amount of the outstanding Convertible Securities
on the Redemption Date has been duly authorized and such
Convertible Securities have been duly called for redemption
on the Redemption Date;
(iv) The Company's authorized equity
capitalization is as set forth in the Prospectus; the
capital stock of the Company conforms to the description
thereof incorporated by reference in the Prospectus; the
outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and
non-assessable; the Purchased Shares being sold hereunder
by the Company have been duly and validly authorized, and,
when issued and delivered to and paid for by the Purchaser
pursuant to this Agreement on the Closing Date, will be
fully paid and non-assessable; the Purchased Shares being
sold hereunder by the Company are duly authorized for
listing, subject to official notice of issuance, on the New
York Stock Exchange; the certificates for the Purchased
Shares are in valid and sufficient form; and the holders of
outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to subscribe for the
Purchased Shares;
(v) Except for the parties to the Amended and
Restated Stockholders' Agreement filed as Exhibit 10.12 to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1999, no holders of securities of the Company
have rights (to the registration of such securities under
the Registration Statement or pursuant to the terms of any
agreement to which the Company is a party, of which such
counsel is aware;
----------------------------
* Such counsel may retain local counsel reasonably satisfactory to the Purchaser
to render certain portions of the opinions relating to the Subsidiaries.
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(vi) The Company is not and, after giving effect
to the offering and sale of the Purchased Shares and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940;
(vii) No consent, approval, authorization or
order of, or filing with, any court or governmental agency
or body is required for the consummation of the
transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction (and maritime,
admiralty and related laws, rules and regulations, as to
which such counsel need express no opinion) in connection
with the purchase and the resale of the Purchased Shares by
the Purchaser and such other approvals (specified in such
opinion) as have been obtained;
(viii) Neither the execution, delivery and
performance of this Agreement, nor the issuance and sale of
the Purchased Shares, nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of
the terms hereof will conflict with, result in a breach or
violation of, or constitute a default under any law (other
than maritime, admiralty and related laws, rules and
regulations, as to which such counsel need express no
opinion) or the charter or by-laws of the Company or the
terms of any indenture or other agreement or instrument
known to such counsel and to which the Company or any of
its Subsidiaries is a party or bound or any judgment, order
or decree known to such counsel to be applicable to the
Company or any of its Subsidiaries of any court, regulatory
body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of
its Subsidiaries (other than public or governmental
authorities having jurisdiction over maritime, admiralty or
related matters or who enforce or interpret maritime or
admiralty laws or promulgate any regulations as to such
matters); and the Company has full power and authority to
authorize, issue and sell the Purchased Shares as
contemplated by this Agreement;
(ix) This Agreement has been duly authorized,
executed and delivered by the Company.
(x) To the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed or incorporated
by reference in the Prospectus, and there is no franchise,
contract or other document of a character required to be
described or incorporated by reference in the Registration
Statement or Prospectus, or to be filed as an exhibit,
which is not described or filed as required;
(xi) The Company has all requisite corporate
power and authority to execute and deliver this Agreement
and to perform its obligations under this Agreement; the
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execution, delivery and performance of this Agreement by
the Company and the consummation by the Company of the
transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of the
Company;
(xii) The Registration Statement has become
effective under the Act; any required filing of the
Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time
period required by Rule 424(b); to the best knowledge of
such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued, no proceedings
for that purpose have been instituted or threatened; and
each Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the
Company (other than the financial statements and related
schedules therein, as to which such counsel need express no
view), and the documents incorporated by reference in the
Prospectus, when they became effective or were filed with
the Commission, as the case may be (other than the
financial statements and related schedules therein, as to
which such counsel need express no view), appeared on their
face to be appropriately responsive in all material
respects to the requirements of the Act and the rules and
regulations thereunder; and although such counsel does not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or the Prospectus, such counsel's work in
connection with this matter did not disclose any
information that gave him reason to believe that, as of its
effective date, the Registration Statement or any further
amendment thereto made by the Company (other than, in each
case, the financial statements and related statements and
related schedules therein, as to which such counsel need
express no view), contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statement
therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto
made by the Company (other than the financial statements
and related schedules therein, as to which such counsel
need express no view) contained an untrue statement of a
material fact or omitted to state a material fact necessary
to make the statements therein, in the light of the
circumstances under which they were made, not misleading or
that, either the Registration Statement or the Prospectus
or any further amendment or supplement thereto made by the
Company (other than the financial statements and related
schedules therein, as to which such counsel need express no
view) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and
(xiii) The descriptions in the Registration
Statement and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents
are accurate and fairly present the information required to
be shown; and such counsel does not know of any contracts
or documents of a character required to be described in a
Registration Statement or the Prospectus or to be filed as
exhibits to a Registration Statement which are not
described and filed as required; it being understood that
such counsel need express no opinion as to the financial
statements or other financial data contained in the
Registration Statements or the Prospectus.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the District of Columbia or the United States, to the extent
they deem proper and specified in such opinion, upon the opinion of
other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Purchaser and (B) as to
matters of fact, to the extent they deem proper, on certificates of
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responsible officers of the Company and public officials. References
to the Prospectus in this paragraph (d) include any supplements. For
purposes of the opinions rendered under this Section 6(d), the term
Subsidiaries shall include only the Subsidiaries organized in the
United States.
(e) On the Closing Date, the Company shall have furnished
to the Purchaser the opinion of Alice N. Gran, General Counsel of the
Company, dated the date of delivery thereof, to the effect that:
(i) the issue and sale of the shares of Common
Stock being delivered by the Company and the compliance by
the Company with all of the provisions of this Agreement
and the consummation of the transactions herein
contemplated will not conflict with, or violate or
constitute a default under, (i) any U.S. Federal maritime
or admiralty law or regulation, or (ii) any judgment, writ,
injunction, decree or order binding on the Company or any
of its subsidiaries of which such counsel is aware of any
U.S. Federal court or governmental authority having
jurisdiction over any maritime or admiralty matters or who
enforce or interpret any maritime or admiralty laws or
promulgate any regulations as to such matters;
(ii) no consent, approval, waiver, license or
other authorization by or filing with any U.S. Federal
maritime or admiralty governmental authority is required
for the issue and sale of the Purchased Shares by the
Company or the consummation by the Company of the
transactions contemplated herein;
(iii) immediately prior to the date of delivery
thereof the Company was a citizen of the United States
within the meaning of Section 2 of the Shipping Act and was
qualified to operate vessels in the coastwise trade of the
United States; immediately following the issue and sale of
the Purchased Shares by the Company and the compliance by
the Company and the Purchaser with all of the provisions of
this Agreement and the consummations of the transactions
herein contemplated (and assuming that at least [___%] of
the shares are issued and sold to, and held of record and
beneficially owned by, persons who are citizens of the
United States), the Company will remain a citizen of the
United States within the meaning of Section 2 of the
Shipping Act and will continue to be qualified to operate
vessels in the coastwise trade of the United States;
(iv) the statements in the Prospectus under the
caption "Risk Factors--If we do not restrict the amount of
foreign ownership of our common stock, we could be prohibited
from operating our vessels in parts of the U.S., which would
adversely affect our business and operating results" fairly
present and summarize the maritime laws and regulations
referred to therein and the statements in the Form 10-K
incorporated by reference in the Prospectus under the captions
"Business--Offshore Marine Services--Government
Regulations--Domestic Regulation" and "--Foreign Regulation"
fairly identify the domestic governmental and international
maritime regulation to which the Company is subject; and
(f) The Purchaser shall have received from Davis Polk &
Wardwell, counsel for the Purchaser, on the Closing Date and on the
first day of any Sale Period under the Equity Forward, such opinion
or opinions, dated the date of delivery thereof, with respect to the
validity of the Purchased Shares delivered on the Closing Date, the
Registration Statement, the Prospectus and other related matters as
the Purchaser may require, and the Company shall have furnished to
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<PAGE>
such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(g) On the Closing Date, the Purchaser shall have received
a certificate, dated the date of delivery thereof, of the President
or any Vice President and a principal financial or accounting officer
of the Company in which such officers, to the best of their knowledge
after reasonable investigation, shall state that the representations
and warranties of the Company in this Agreement are true and correct,
that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the date of delivery thereof, that no stop order suspending
the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are
contemplated by the Commission and that, subsequent to the date of
the most recent financial statements in the Prospectus, there has
been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations
of the Company and its subsidiaries taken as a whole except as set
forth in or contemplated by the Prospectus or as described in such
certificate.
(h) The Equity Forward shall be in full force and effect.
(i) On each Bring Down Date (as defined below), and as a
condition to the ability of the Company to elect Net Cash Settlement
under the Equity Forward,
(i) the Purchaser shall have received a letter
(each a "Bring -Down Comfort Letter" and each, together
with the Initial Comfort Letter, a "Comfort Letter"), dated
the date of delivery thereof, of Arthur Andersen LLP
confirming that they are independent public accountants
within the meaning of the Act and the applicable published
Rules and Regulations thereunder and (A) stating that, as
of such Bring-Down Date (or, with respect to matters
involving changes or developments since the respective
dates as of which specified financial information is
included in the Prospectus, as of a date not more than
three Business Days prior to such Bring-Down Date), the
conclusions and findings of such accountants with respect
to the financial information and other matters covered by
the Initial Comfort Letter and any intervening Bring-Down
Comfort Letter are accurate, and confirming in all material
respects the conclusions and findings set forth in the
Initial Comfort Letter or any intervening Bring-Down
Comfort Letter and (B) with respect to any revised or
additional financial information included in the Prospectus
as a result of the filing of a post-effective amendment to
the Registration Statement or of reports under the Exchange
Act on Form 10-K, Form 10-Q or Form 8-K if financial
statements are filed therewith, complying with the
requirements of paragraph (a) of Section 6 of this
Agreement.
(ii) the Purchaser shall have received an opinion
dated the date of delivery thereof, of Weil, Gotshal &
Manges LLP, counsel to the Company, as is reasonably
acceptable to the Purchaser, affirming as of such date the
opinions required under clauses (i) solely with respect to
the Company, (iv), (vi), (vii), (viii), (x), (xi), (xii)
and (xiii) of paragraph (d) of Section 6 of this Agreement;
(iii) the Purchaser shall have received an
opinion, dated the date of delivery thereof, of Alice N.
Gran, General Counsel of the Company, affirming as of such
date the opinions required under clauses (i), (ii), (iii)
and (iv) of paragraph (e) of Section 6 of this Agreement;
and
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(iv) the Purchaser shall have received an
opinion, dated the date of the delivery thereof, of Davis
Polk & Wardwell, counsel to the Purchaser, affirming as of
such date the opinions required under paragraph (f) of this
Agreement.
"Bring-Down Date" means the first day of any Sale
Period (as defined in the Equity Forward) if (i) the
Company has filed a post-effective amendment to the
Registration Statement or any reports under the Exchange
Act on Form 10-K, Form 10-Q or Form 8-K if financial
statements are filed therewith since the later of the
Closing Date and the most recent Bring-Down Date or (ii)
the Company has elected Net Cash Settlement (as defined in
the Equity Forward) with respect to Purchased Shares in an
aggregate cumulative amount since delivery of the most
recent Comfort Letter equal to or greater than $10,000,000
or (iii) 30 days have elapsed since the last Bring-Down
Date.
(j) On the first day of any Sale Period, and as a condition
to the ability of the Company to elect Net Cash Settlement under the
Equity Forward,
(i) the Purchaser shall have received a
certificate, dated the date of delivery thereof, that
complies with the requirements of paragraph (g), of this
Agreement; and
(ii) the Company shall have made available its
Chief Executive Officer, Chief Financial Officer or such
other officers as are reasonably acceptable to the
Purchaser for the purpose of responding to customary "due
diligence" questions of the Purchaser and its counsel.
(k) The Purchased Shares shall have been approved for
listing on the New York Stock Exchange, subject to notice of
issuance.
The Company will furnish the Purchaser with such conformed copies of such
opinions, certificates, letters and documents as the Purchaser reasonably
requests.
7. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless the Purchaser against any losses, claims, damages or
liabilities to which the Purchaser may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Purchaser for any legal or other expenses reasonably incurred by the
Purchaser in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by the Purchaser specifically for use
therein, it being understood and agreed that the only such information furnished
by the Purchaser consists of the information described as such in subsection (b)
below. With respect to all other matters, the Company will also indemnify and
hold harmless the Purchaser against any losses, claims, damages or liabilities
to which the Purchaser may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon this Agreement, the Equity Forward, the
transactions contemplated hereby or thereby, or any actions or inactions on
behalf of the Purchaser in connection therewith and will reimburse the Purchaser
14
<PAGE>
for any legal or other expenses reasonably incurred by the Purchaser in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company shall not be liable for indemnification or otherwise for any such loss,
claims, damage or liability to the extent arising from gross negligence or
willful misconduct of the Purchaser.
(b) The Purchaser will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by the Purchaser for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by the Purchaser consists of the following information in
the Prospectus furnished on behalf of the Purchaser: the language concerning
stabilizing under the caption "Plan of Distribution" in the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party, of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section, for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes (i) an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action; and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Purchaser on the other from the transactions
contemplated by this Agreement or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Purchaser on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
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<PAGE>
and the Purchaser on the other hand shall be deemed to be in the same proportion
as (x) the aggregate purchase price paid to the Company by the Purchaser for the
Purchased Shares bears to (y) the compensation received by the Purchaser
pursuant to Section 3. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Purchaser and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), the
Purchaser shall not be required to contribute any amount in excess of the amount
by which the total price at which the Purchased Shares were offered to the
public exceeds the amount of any damages which the Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Purchaser within the meaning of the Act; and the obligations of the Purchaser
under this Section shall be in addition to any liability which the Purchaser may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the Purchaser set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of the Purchaser, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Purchased Shares. If for any reason the purchase of the
Purchased Shares by the Purchaser is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5 and the respective obligations of the Company and the Purchaser pursuant to
Section 7 shall remain in effect. If the purchase of the Purchased Shares by the
Purchaser is not consummated for any reason other than the occurrence of any
event specified in clause (iii), (iv) or (v) of Section 6(c), the Company will
reimburse the Purchaser for all out-of-pocket expenses reasonably incurred by
them in connection with the purchase and the offering of the Purchased Shares
and not otherwise subject to reimbursement pursuant to Section 5(j).
9. Notices. All communications hereunder will be in writing and, if
sent to the Purchaser, will be mailed, delivered or telegraphed and confirmed to
the Purchaser at Eleven Madison Avenue, New York, NY 10010-3629, Attention:
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 1370 Avenue of the Americas,
25th Floor, New York, NY 10019, Attention: General Counsel.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors, and no other
person will have any right or obligation hereunder.
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11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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If the foregoing is in accordance with the Purchaser's understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
Purchaser in accordance with its terms.
Very truly yours,
SEACOR SMIT INC.
By_____________________
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By________________________
Name:
Title:
As the Purchaser.
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Exhibit A
Subsidiaries
------------
SEACOR SMIT Inc.
CRN Holdings Inc.
National Response Corporation
Anna Offshore Inc.
Arthur Levy Enterprises, Inc.
Graham Boats Inc.
SEACOR Communications Inc.
SEACOR Deepwater 1 Inc.
SEACOR Deepwater 2 Inc.
SEACOR Deepwater 3 Inc.
SEACOR Marine (Mexico) Inc.
SEACOR Marine Inc.
SEACOR Marine International Inc.
SEACOR Offshore Inc.
SEACOR Offshore Rigs Inc.
SEACOR Supply Ships Associates Inc.
SEACOR VISION LLC
SEACOR Worldwide Inc.
SEACOR-SMIT Offshore I, Inc.
Veesea Holdings Inc.
VISION OFFSHORE Inc.
McCall Enterprises Inc.
Graham Offshore Inc.
ERST/O'Brien's, Inc.
McCall's Boat Rentals Inc.
The Netherlands
SEACOR-SMIT Holdings B.V.
SEACOR-SMIT Offshore I B.V.
SEACOR-SMIT Offshore II B.V.
England & Wales
SEACOR Capital (UK) Ltd.
Bahamas
SEACOR-SMIT Offshore (International) Ltd.
SEACOR-SMIT Offshore (Worldwide) Ltd.
