As filed with the United States Securities and Exchange Commission on
April 10, 2000
Registration No. 333-______________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TRICO MARINE SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware 250 North American Court 72-1252405
(State or other Houma, Louisiana 70363 (I.R.S. Employer
jurisdiction of (504) 851-3833 Identification Number)
incorporation or (Address, including zip code,
organization) and telephone number,including
area code, of registrant's
principal executive offices)
SEE TABLE OF ADDITIONAL REGISTRANTS BELOW
<TABLE>
<CAPTION>
<S> <C>
VICTOR M. PEREZ COPY TO:
VICE PRESIDENT, CHIEF FINANCIAL OFFICER WILLIAM B. MASTERS
AND TREASURER JONES, WALKER, WAECHTER,
TRICO MARINE SERVICES, INC. POITEVENT, CARRE`RE & DENE`GRE,L.L.P.
2401 FOUNTAINVIEW DRIVE, SUITE 920 201 ST. CHARLES AVENUE, 51ST FLOOR
HOUSTON, TEXAS 77057 NEW ORLEANS, LOUISIANA, 70170
(713) 780-9926 PHONE: (504) 582-8000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE FAX: (504) 582-8012
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. __
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, please check the following
box. _x_
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same
offering. __
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. __
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. __
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH AMOUNT OFFERING AGGREGATE
CLASS OF TO BE PRICE OFFERING AMOUNT OF
SECURITIES REGISTERED PER PRICE(1)(10) REGISTRATION FEE
TO BE REGISTERED UNIT(1)
<S> <C> <C> <C> <C>
Common Stock(2)(3)
Preferred Stock(4)
Depositary Shares(5)
Debt Securities(6) $125,000,000(9)(10) 100% $125,000,000 $33,000
Guarantees of Debt
Securities(7)
Warrants(8)
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457.
(2) Subject to note (9) below, we are registering an indeterminate number
of shares of common stock that we may issue from time to time at
indeterminate prices, including shares issuable upon conversion of debt
securities that are convertible into common stock, or preferred stock (or
depositary shares representing preferred stock) that is convertible into
common stock, and including shares issuable upon exercise of warrants.
(3) Each share of common stock includes a preference share purchase right
pursuant to a rights agreement between Trico Marine Services, Inc. and
ChaseMellon Shareholder Services, L.L.C., dated as of February 19, 1998.
(4) Subject to note (9) below, we are registering an indeterminate number
of shares of preferred stock that we may issue from time to time at
indeterminate prices. Shares of preferred stock may be convertible into
shares of common stock.
(5) Subject to note (9) below, we are registering an indeterminate number
of depositary shares that will be evidenced by depositary receipts issued
pursuant to a deposit agreement. If we elect to offer fractional interests
in shares of preferred stock, the depositary receipts will be distributed
to those persons acquiring the fractional interests, and the shares of
preferred stock will be issued to the depositary under the deposit
agreement.
(6) Subject to note (9) below, we are registering an indeterminate amount
of debt securities that we may issue from time to time at indeterminate
prices. The debt securities will be convertible into common stock.
(7) Subject to note (9) below, we are registering an indeterminate number
of warrants that we may issue from time to time at indeterminate prices
entitling the holder to purchase shares of common stock.
(8) Subject to note (9) below, we are registering an indeterminate amount
of guarantees of our debt securities by one or both of our guarantor
subsidiaries listed in the Table of Additional Registrants below.
(9) Represents the principal amount of any debt securities issued at, or at
a premium to, their principal amounts, and the issue price rather than the
principal amount of any debt securities issued at an original issue
discount; the liquidation preference of any preferred stock; the amount
computed pursuant to Rule 457(c) for any common stock; the issue price of
any warrants; and the exercise price of any warrants; all of which together
will not exceed $125,000,000.
(10) No separate cash consideration will be received for the preference
share purchase rights associated with common stock issuable upon conversion
or exchange of other securities registered or for depositary shares issued
with respect to preferred stock.
<PAGE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH
DATEOR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES
THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE
COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY DETERMINE.
____________________________
TRICO MARINE SERVICES, INC.
TABLE OF ADDITIONAL REGISTRANTS
<TABLE>
<CAPTION>
NAME IRS EMPLOYER STATE OF
IDENTIFICATION INCORPORATION/
NUMBER FORMATION
<S> <C> <C>
Trico Marine Assets, Inc. 72-1252404 Delaware
Trico Marine Operators, Inc. 72-1096124 Louisiana
</TABLE>
The address, including zip code, and telephone number, including
area code of the principal offices of the additional registrants
listed above is as follows:
c/o Trico Marine Services, Inc.
250 North American Court
Houma, Louisiana 70363
(504) 851-3833
<PAGE>
SUBJECT TO COMPLETION, DATED APRIL 10, 2000
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT
SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE
OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS
$125,000,000
TRICO MARINE SERVICES, INC.
We may use this prospectus to offer the following securities for sale:
* Common stock;
* Preferred stock;
* Depositary shares;
* Debt securities which will be subordinated to our
senior debt and convertible into our common stock;
* Guarantees by one or more of our subsidiaries of
the debt securities we issue; and
* Warrants to purchase our common stock.
We will provide the specific terms of the securities we are offering
in supplements to this prospectus. A supplement may also update or
change information contained in this prospectus. This prospectus may
not be used to sell securities unless accompanied by a prospectus
supplement. You should read this prospectus and any related
prospectus supplements carefully before you invest in our securities.
We may sell securities directly to one or more purchasers or to or
through underwriters, dealers or agents. We will identify any
underwriters, dealers or agents involved in the sale of securities in
the accompanying prospectus.
Our common stock is traded on the Nasdaq National Market under the
symbol "TMAR."
YOU SHOULD CAREFULLY CONSIDER THE RISKS DESCRIBED UNDER THE CAPTION
"RISK FACTORS" BEGINNING ON PAGE 4 BEFORE INVESTING IN OUR SECURITIES.
NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED
THESE SECURITIES OR DETERMINED THAT THIS PROSPECTUS IS ACCURATE OR
COMPLETE. IT IS ILLEGAL FOR ANYONE TO TELL YOU OTHERWISE.
The date of this prospectus is April _____, 2000.
<PAGE>
TABLE OF CONTENTS
PAGE
ABOUT THIS PROSPECTUS 3
WHERE YOU CAN FIND MORE INFORMATION 3
THE COMPANY 4
FORWARD-LOOKING STATEMENTS 4
RISK FACTORS 4
USE OF PROCEEDS 6
RATIO OF EARNINGS TO FIXED CHARGES 7
DESCRIPTION OF COMMON STOCK 7
DESCRIPTION OF PREFERRED STOCK 13
DESCRIPTION OF DEPOSITARY SHARES 14
DESCRIPTION OF DEBT SECURITIES 16
DESCRIPTION OF WARRANTS 25
PLAN OF DISTRIBUTION 26
LEGAL MATTERS 27
EXPERTS 27
___________________________
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND IN ANY ACCOMPANYING PROSPECTUS SUPPLEMENT.
NO ONE HAS BEEN AUTHORIZED TO PROVIDE YOU WITH DIFFERENT INFORMATION.
THE SECURITIES ARE NOT BEING OFFERED IN ANY JURISDICTION WHERE THE OFFER
IS NOT PERMITTED.
YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE
FRONT OF THE DOCUMENTS.
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the U.S. 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 $125,000,000.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add to or update other
information contained in this prospectus. You should read both this
prospectus and the accompanying prospectus supplement together with
additional information described below under the heading "Where You Can
Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over
the Internet at the SEC's web site at http://www.sec.gov. You may also
read and copy any document we file at the public reference rooms at the
SEC's offices at the following locations:
Judiciary Plaza 7 World Trade Center Northwestern Atrium Center
450 Fifth Street, NW New York, NY 10048 500 West Madison Street
Washington, DC 20549 Chicago, IL 60661
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms.
We have filed a registration statement and related exhibits with the SEC
under the Securities Act of 1933. The registration statement contains
additional information about us and our securities. You may read the
registration statement and exhibits without charge at the SEC's public
reference rooms, and you may obtain copies from the SEC at prescribed
rates.
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring to documents on file with the SEC. Some information that we
currently have on file is incorporated by reference and is an important
part of this prospectus. Some information that we file later with the SEC
will automatically update and supersede this information.
We incorporate by reference the following documents that we have filed
with the SEC pursuant to the Securities Exchange Act of 1934:
* Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 (filed March 30, 2000); and
* All documents filed by us with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 after the date of this prospectus and prior to the
termination of this offering.
At your request, we will provide you with a free copy of any of these
filings (except for exhibits, unless the exhibits are specifically
incorporated by reference into the filing). You may request copies by
writing or telephoning us at:
2401 Fountainview Drive, Suite 920
Houston, Texas 77057
(713) 780-9926
Attention: Investor Relations
<PAGE>
THE COMPANY
We are a leading provider of marine support vessels to the oil and gas
industry in the U.S. Gulf of Mexico, the North Sea and Latin America. The
services provided by our diversified fleet include:
* the transportation of drilling materials, supplies and crews
to drilling rigs and other offshore facilities;
* towing drilling rigs and equipment from one location to
another; and
* support for the construction, installation, maintenance and
removal of offshore facilities.
Since our initial public offering in May 1996, we have pursued a strategy
of growth through acquisitions. As a result of these acquisitions, we are
now the second largest owner and operator of supply boats in the Gulf and a
leading operator in the North Sea. In December 1997, we acquired all of
the outstanding stock of Saevik Supply ASA, a then publicly-traded
Norwegian company, for approximately $293.7 million, subsequently renamed
Trico Supply ASA. The acquisition of Trico Supply firmly established our
company in the North Sea market area and significantly expanded our
international operations. Since our initial public offering, we have also
acquired 37 supply boats for use in the Gulf at an aggregate cost of $177.0
million. We currently have a total fleet of 100 vessels, including 54
supply vessels, 11 large capacity platform supply vessels, seven large
anchor handling, towing and supply vessels, 13 crew boats, six lift boats
and nine line-handling vessels.
FORWARD-LOOKING STATEMENTS
Some of the information included in this prospectus and in the documents
we have incorporated by reference contains, and any prospectus supplement
may contain, "forward-looking statements." Forward-looking statements
include, among other things, business strategy and expectations concerning
industry conditions, market position, future operations, margins,
profitability, liquidity and capital resources. Forward-looking statements
generally can be identified by the use of words such as "may," "will,"
"expect," "intend," "estimate," "anticipate" or "believe" or the negative
thereof or similar language.
These forward-looking statements are based on assumptions that we believe
are reasonable, but they are open to a wide range of uncertainties and
business risks, many of which are outside our control, including, but not
limited to, those discussed under the heading "Risk Factors" below. As a
result, our actual results of operations may differ materially from those
expressed or implied by any forward-looking statements. You are cautioned
not to place undue reliance on these forward-looking statements, which
speak only as of the date of they are made. We will not update or revise
any forward-looking statements unless the securities laws require us to do
so.
RISK FACTORS
An investment in our securities involves significant risks. You should
carefully consider the following risk factors before you decide to buy any
of our securities. You should also carefully read and consider all of the
information we have included, or incorporated by reference, in this
prospectus before you decide to buy any of our securities.
Market volatility may adversely affect operations
Demand for our services depends heavily on activity in offshore oil and
gas exploration, development and production. The level of exploration
and development activity has traditionally been volatile as a result of
fluctuations in oil and natural gas prices and their uncertainty in the
future. For example, as a result of the decline in oil industry activity in
the Gulf due to the depressed oil prices experienced during 1998 and early
1999, day rates and utilization of our Gulf supply boat fleet decreased
dramatically. Although day rates and utilization rates began to recover in
the fourth quarter of 1999 in response to increased industry activity in
the Gulf, we are unable to predict whether the recovery will continue.
The North Sea market is also susceptible to changes in industry activity
due to energy price volatility. Although the use of long-term contracts in
the North Sea generally delays the reaction to fluctuations in energy
prices, in 1999 we experienced decreased day rates and utilization of our
North Sea fleet. As a result of the delay caused by the use of long-term
contracts, we expect that a recovery of day rates and fleet utilization in
the North Sea will lag the recovery of other market areas. A decline in the
worldwide demand for oil and gas or prolonged low oil or natural gas prices
in the future could hinder the recovery and depress offshore drilling and
development activity. A prolonged low level of activity in the Gulf and
other areas where we operate is likely to adversely affect the demand for
our marine support services and our financial condition and results of
operations.
Charter rates for marine support vessels also depend on the supply of
vessels. Excess vessel capacity in the industry can result primarily from
the construction of new vessels and the mobilization of vessels between
market areas. During the last few years there has been a significant
increase in construction of vessels of the type operated by us, for use
both in the Gulf and the North Sea. The addition of new capacity to the
worldwide offshore marine fleet has increased competition in those markets
where we operate. This new capacity, coupled with a prolonged period of low
oil and gas prices in the future, would likely have a material adverse
effect on our financial condition and results of operations.
WE OPERATE IN A HIGHLY COMPETITIVE INDUSTRY
Our business is highly competitive. Certain of our competitors have
significantly greater financial resources than us and more experience
operating in international areas. Competition in the marine support
services industry primarily involves factors such as:
* price, service and reputation of vessel operators and crews;
and
* the quality and availability of vessels of the type and size
needed by the customer.
OPERATING HAZARDS MAY INCREASE OPERATING COSTS; LIMITED INSURANCE COVERAGE
Marine support vessels are subject to operating risks such as
catastrophic marine disaster, adverse weather conditions, mechanical
failure, collisions, oil and hazardous substance spills and navigation
errors. The occurrence of any of these events may result in damage to or
loss of ourvessels and our vessels' tow or cargo or other property and in
injury to passengers and personnel. Such occurrences may also result in a
significant increase in operating costs or liability to third parties. We
maintain insurance coverage against certain of these risks, which our
management considers to be customary in the industry. We cannot assure
you, however, that we can renew our existing insurance coverage at
commercially reasonable rates or that such coverage will be adequate to
cover future claims that may arise.
COMPLIANCE WITH GOVERNMENTAL REGULATIONS MAY IMPOSE ADDITIONAL EXPENDITURES
Federal, state and local regulations, as well as certain international
conventions, private industry organizations and agencies and laws and
regulations in jurisdictions where our vessels operate and are registered,
materially affect our operations. These regulations govern worker health
and safety and the manning, construction and operation of vessels. These
organizations establish safety criteria and are authorized to investigate
vessel accidents and recommend approved safety standards. If we fail to
comply with the requirements of any of these laws or the rules or
regulations of these agencies and organizations, this could adversely
affect our operations.
Our operations also are subject to federal, state and local laws and
regulations that control the discharge of pollutants into the environment
and that otherwise relate to environmental protection. While our insurance
policies provide coverage for accidental occurrence of seepage and
pollution or clean up and containment of the foregoing, pollution and
similar environmental risks generally are not fully insurable. We may
incur substantial costs in complying with such laws and regulations, and
noncompliance can subject us to substantial liabilities. The laws and
regulations applicable to us and our operations may change. If we violate
any of such laws or regulations, this could result in significant liability
to us. In addition, any amendment to such laws or regulations that
mandates more stringent compliance standards would likely cause an increase
in our vessel operating expenses.
SEASONALITY MAY ADVERSELY AFFECT OPERATIONS
Our marine operations are seasonal and depend, in part, on weather
conditions. In the Gulf, we have historically enjoyed our highest
utilization rates during the second and third quarters, as mild weather
provides favorable conditions for offshore exploration, development and
construction. Adverse weather conditions during the winter months
generally curtail offshore development operations and can particularly
impact lift boat utilization rates. Activity in the North Sea is also
subject to delays during periods of adverse weather, but is not affected by
seasonality to the extent activity in the Gulf is affected. Accordingly,
the results of any one quarter are not necessarily indicative of annual
results or continuing trends.
AGE OF FLEET
The average age of our vessels (based on the date of construction) is
approximately 19 years for our Gulf fleet and approximately 11 years for
our North Sea fleet. Expenditures required for the repair, certification
and maintenance of a vessel typically increase with vessel age. These
expenditures may increase to a level at which they are no longer
economically justifiable. We cannot assure you that we will be able to
maintain our fleet by extending the economic life of existing vessels
through major refurbishment or by acquiring new or used vessels.
CURRENCY FLUCTUATIONS COULD ADVERSELY AFFECT RESULTS OF OPERATIONS
The acquisition of Trico Supply substantially increased the percentage
of our operations conducted in currencies other than the United States
dollar. Changes in the value of foreign currencies relative to the United
States dollar could adversely affect our results of operations and
financial position. In addition, transaction gains and losses could
contribute to fluctuations in our results of operations. Our international
operations are subject to a number of risks inherent to any business
operating in foreign countries. These risks include, among others:
* political instability;
* potential vessel seizure or nationalization of assets;
* currency restrictions and exchange rate fluctuations; and
* import and export quotas and other forms of public and
governmental regulation.
All of these risks are beyond our control. We cannot predict the
nature and the likelihood of any such events. However, if such an event
should occur, it could have a material adverse effect on our financial
condition and results of operations.
WE DEPEND ON KEY PERSONNEL
We depend on the continued services of our executive officers and other
key management personnel. If we were to lose any of these officers or
other management personnel, such a loss could adversely affect our
operations.
USE OF PROCEEDS
Unless we state otherwise in a prospectus supplement, we will use the net
proceeds from the sale of the securities for general corporate purposes,
which may include the repayment of debt, acquisitions, capital expenditures
and working capital. We may temporarily invest funds we receive from the
sale of the securities that we do not immediately need for these purposes.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges was as follows for the years and
period indicated:
YEARS ENDED DECEMBER 31,
----------------------------------------------------
1995 1996 1997 1998 1999
----(1) 7.7x 7.1x 2.0x ----(2)
- -----------------
(1) Earnings were insufficient to cover fixed charges, and fixed charges
exceeded earnings by approximately $20 million.
(2) Earnings were insufficient to cover fixed charges, and fixed charges
exceeded earnings by approximately $48.6 million.
Our ratios of earnings to fixed charges were computed based on:
* "earnings," which consist of consolidated income or loss
from continuing operations plus income taxes and fixed
charges, except capitalized interest; and
* "fixed charges," which consist of consolidated interest on
indebtedness, including capitalized interest, amortization
of debt discount and expense, and the estimated portion of
rental expense attributable to interest.
DESCRIPTION OF COMMON STOCK
General
As of the date of this prospectus, our certificate of incorporation
authorized us to issue up to 40,000,000 shares of common stock, par value
$0.01 per share. As of March 21, 2000, 28,390,416 shares of common stock
and no shares of preferred stock were outstanding. Our common stock is
listed on the Nasdaq National Market under the symbol "TMAR."
VOTING RIGHTS
Each share of common stock is entitled to one vote on all matters
presented for a vote of stockholders. Holders of our common stock do not
have any cumulative voting rights.
DIVIDENDS
Subject to any preferences accorded to the holders of our preferred
stock, if and when issued by the board of directors, holders of our common
stock are entitled to dividends at such times and amounts as the board of
directors may determine.
OTHER RIGHTS
In the event of a voluntary or involuntary liquidation, dissolution or
winding up of our company, prior to any distributions to the holders of our
common stock, our creditors and the holders of our preferred stock, if any,
will receive any payments to which they are entitled. Subsequent to those
payments, the holders of our common stock will share ratably, according to
the number of shares held by them, in our remaining assets, if any.
Shares of our common stock are not redeemable and have no subscription,
conversion or preemptive rights.
PROVISIONS OF OUR CERTIFICATE OF INCORPORATION AND BY-LAWS
Our certificate of incorporation contains provisions that are designed in
part to make it more difficult and time-consuming for a person to obtain
control of our company unless they pay a required value to our
stockholders. Some provisions also are intended to make it more difficult
for a person to obtain control of our board of directors. These provisions
reduce the vulnerability of our company to an unsolicited takeover
proposal. On the other hand, these provisions may have an adverse effect
on the ability of stockholders to influence the governance of our company.
In addition, our certificate of incorporation contains provisions that
enable our board to limit the amount of our common stock that may be owned
by persons who are not U.S. citizens, which may adversely affect the
liquidity of our common stock in certain situations.
We have summarized the provisions described in the preceding paragraph
below, but you should read our certificate of incorporation and bylaws for
a more complete description of the rights of holders of our common stock.
CLASSIFIED BOARD OF DIRECTORS. Our certificate of incorporation divides
the members of our board of directors into three classes serving three-year
staggered terms. The classification of directors has the effect of making
it more difficult for our stockholders to change the composition of our
board. At least two annual meetings of stockholders may be required for the
stockholders to change a majority of the directors, whether or not a
majority of our stockholders believes that this change would be desirable.
SUPERMAJORITY VOTING/FAIR PRICE REQUIREMENTS. Our certificate of
incorporation provides that a supermajority vote of our stockholders and
the approval of our directors as described below are required for:
<PAGE>
* any merger, consolidation or share exchange of our company
or of any of our subsidiaries with any person or entity, or
any affiliate of that person or entity, who beneficially
owns 10% or more of our voting stock, or who is one of our
affiliates or associates and beneficially owned 10% or more
of our voting stock within the two years prior to the
transaction (an "interested party");
* any sale, lease, transfer, exchange, mortgage, pledge,
loan, advance or other disposition of our assets or the
assets of any of our subsidiaries having a market value of
5% or more of the total market value of our outstanding
common stock or our company's net worth as of the end of
the most recently ended fiscal quarter, whichever is less,
in one or more transactions with or for the benefit of an
interested party;
* the adoption of any plan or proposal for our liquidation or
dissolution or the liquidation or dissolution of any of our
subsidiaries;
* the issuance or transfer by us or any of our subsidiaries
of securities having a fair market value of $1 million or
more to any interested party, except for the exercise of
warrants or rights to purchase securities offered pro rata
to all holders of our voting stock;
* any recapitalization, reclassification, merger, consolidation
or similar transaction of our company or any of our
subsidiaries that would increase an interested party's voting
power in our company or any of our subsidiaries by 5% or
more;
* any loans, advances, guarantees, pledges or other financial
assistance or any tax credits or advantages provided by our
company or any of our subsidiaries to any interested party;
or
* any agreement providing for any of the transactions
described above.
To effect any of the transactions described above, the following
shareholder and director approvals are required:
* the vote of the holders of 80% of our outstanding voting
stock;
* the vote of the holders of 75% of our outstanding voting
stock, excluding stock owned by interested parties;
* a majority of our directors currently in office; and
* a majority of our director who are not affiliates of the
interested party and who were members of our board prior to
the time the interested party became an interested party or
directors appointed by these board members.
However, the requirements for approval of our directors and a
supermajority vote of our stockholders described above are NOT APPLICABLE
if:
* our board approves the transaction prior to the time the
interested party becomes an interested party and the vote
includes the affirmative vote of a majority of our
directors who are not affiliates of the interested party
and who were members of our board prior to the time the
interested party became an interested party; or
* all of the following conditions are met:
* the aggregate amount of consideration received by
our stockholders in the transaction meet the "fair
price" criteria described in our certificate of
incorporation; and
* after an interested party becomes an interested
party and prior to the completion of the
transaction:
* we have not failed to declare or pay dividends
on any of our outstanding preferred stock;
* the interested party has not received benefits
(except proportionately as a stockholder) of
any loans, advances or other financial
assistance or tax advantage provided by us;
* we have not reduced the annual rate of
dividends paid on our common stock, except as
necessary to reflect adjustments or stock
splits, and has not failed to increase the
annual rate of dividends to adjust for any
recapitalization, reclassification,
reorganization or similar transaction; and
* the interested party has not become the
beneficial owner of additional shares of our
voting stock except as part of the transaction
that resulted in the interested party becoming
an interested party or as a result of a pro
rata stock dividend.
NO STOCKHOLDER ACTION BY WRITTEN CONSENT. Under Delaware law, unless a
corporation's certificate of incorporation specifies otherwise, any action
that could be taken by its stockholders at an annual or special meeting may
be taken without a meeting and without notice to or a vote of other
stockholders, if a consent in writing is signed by holders of outstanding
stock having voting power that would be sufficient to take such action at a
meeting at which all outstanding shares were present and voted. Our
certificate of incorporation provides that stockholder action may be taken
only at an annual or special meeting of stockholders. As a result, our
stockholders may not act upon any matter except at a duly called meeting.
ADVANCE NOTICE OF STOCKHOLDER NOMINATIONS AND STOCKHOLDER BUSINESS. Our
bylaws permit stockholders to nominate a person for election as a director
or bring other matters before a stockholders' meeting only if written
notice of an intent to nominate or bring business before a meeting is given
a specified time in advance of the meeting.
SUPERMAJORITY VOTING/AMENDMENTS TO CERTIFICATE OF INCORPORATION. The
affirmative vote of at least 80% of our outstanding voting stock is
required to amend, alter, change or repeal the provisions in our
certificate of incorporation relating to the following:
* the powers and composition of the board of directors,
including the classification of the board, the removal of
directors and the procedure filing board vacancies as
described below;
* the supermajority voting and fair price requirements
described above;
* the restrictions on foreign ownership of our voting stock
described below;
* the limitation of liability of, and indemnification for,
officers and directors;
* the supermajority vote required to amend our certificate of
incorporation and bylaws; and
* the amendment of our bylaws. (Our bylaws also may be
amended by the vote of a majority of our directors
currently in office and a majority vote of our directors
who were members of our board prior to the time
an interested party became an interested party.)
However, the 80% stockholder vote described above will not be
required if:
* our directors adopt resolutions amending, altering or
repealing the provisions in our certificate of
incorporation described above, and the vote of directors
adopting these resolutions includes:
* a majority of our board of directors; and
* a majority of our board of directors in office
prior to the time an interested party became an
interested party or directors appointed by these
directors; and
* the amendment, alteration or repeal of the
provisions described above is approved by the vote
of holders of a majority of our outstanding voting
stock.
DELAWARE SECTION 203. We are a Delaware corporation and are therefore
subject to Section 203 of the Delaware General Corporation Law. Section
203 imposes a three-year moratorium on the ability of Delaware corporations
to engage in a wide range of specified transactions with any "interested
stockholder." An interested stockholder includes, among other things, any
person other than the corporation and its majority-owned subsidiaries who
owns 15% or more of any class or series of stock entitled to vote generally
in the election of directors. However, the moratorium will not apply if,
among other things, the transaction is approved by:
* the corporation's board of directors prior to the date the
interested stockholder became an interested stockholder; or
* the holders of two-thirds of the outstanding shares of each
class or series of stock entitled to vote generally in the
election of directors, not including those shares owned by
the interested stockholder.
REMOVAL OF DIRECTORS; FILLING VACANCIES ON BOARD OF DIRECTORS; SIZE OF
THE BOARD. Our directors may be removed, with cause, by the vote of 80% of
the holders of all classes of stock entitled to vote at an election of
directors, voting together as a single class. Our directors may not be
removed without cause by stockholders. Vacancies in a directorship may be
filled only by the vote of a majority of the remaining directors and a
majority of all directors who were members of our board at the time an
interested party became an interested party. A newly created directorship
resulting from an increase in the number of directors may only be filled by
the board. Any director elected to fill a vacancy on the board serves for
the remainder of the full term of the class of directors in which the new
directorship was created or in which the vacancy occurred. The number of
directors is fixed from time to time by the board.
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SPECIAL MEETINGS OF THE STOCKHOLDERS. Our bylaws provide that special
meetings of stockholders may be called only by either (1) our Chairman, (2)
our President, or (3) by a vote of the majority of our board of directors.
Our stockholders do not have the power to call a special meeting.
LIMITATION OF DIRECTORS LIABILITY. Our certificate of incorporation
contains provisions eliminating the personal liability of our directors to
our company and our stockholders for monetary damages for breaches of their
fiduciary duties as directors to the fullest extent permitted by Delaware
law. Under Delaware law and our certificate of incorporation, our
directors will not be liable for a breach of his or her duty except for
liability for:
* a breach of his or her duty of loyalty to our company or
our stockholders;
* acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
* dividends or stock repurchases or redemptions that are
unlawful under Delaware law; and
* any transaction from which he or she receives an improper
personal benefit.
These provisions pertain only to breaches of duty by directors as
directors and not in any other corporate capacity, such as officers. In
addition, these provisions limit liability only for breaches of fiduciary
duties under Delaware corporate law and not for violations of other laws
such as the federal securities laws.
As a result of these provisions in our certificate of incorporation, our
stockholders may be unable to recover monetary damages against directors
for actions taken by them that constitute negligence or gross negligence or
that are in violation of their fiduciary duties. However, our stockholders
may obtain injunctive or other equitable relief for these actions. These
provisions also reduce the likelihood of derivative litigation against
directors that might have benefited our company.
LIMITATIONS ON OWNERSHIP OF OUR STOCK BY PERSONS WHO ARE NOT U.S.
CITIZENS. Federal maritime laws (including the Merchant Marine Act of
1920, the Merchant Marine Act of 1936, and the Shipping Act of 1916)
provide that vessels may only transport passengers and merchandise between
points in the United States (referred to as "operating in the coastwise
trade") if they are owned by U.S. citizens. For such purposes, a
corporation is considered a U.S. citizen if at least 75% of its outstanding
stock is owned by persons or organizations who are U.S. citizens. We have
significant operations in the coastwise trade, and as a result we are
subject to these requirements. If we were to fail to comply with these
maritime laws, we would not be permitted to continue to operate vessels in
the coastwise trade. Therefore, to facilitate compliance, our certificate
of incorporation contains provisions which are designed to enable us
to regulate the ownership of our capital stock by persons who are not
U.S. citizens, including the following:
* Any transfer of shares of our c apital stock that
our board of directors determines would result in
non-U.S. citizens controlling more than 24% of our
common stock (the "permitted percentage") will be
void and not effective, except for the purpose of
enabling us to effect the other remedies described
below.
* If our board of directors determines at any time
that there is a risk that restrictions will be
imposed on our ability to operate in the coastwise
trade as a result of non-U.S. citizens beneficially
owning shares of our common stock in excess of the
permitted percentage, or otherwise as a result of
the nationality of any beneficial owner of our
common stock, then:
* shares of common stock owned by the person
whose ownership has created the risk shall
not be entitled to voting rights until the
board of directors has determined that the
risk no longer exists;
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* dividends with respect to shares owned by
the person whose ownership has created the
risk are to be withheld by us until the
board of directors has determined that the
risk no longer exists; and
* we are permitted (but not required) to
redeem shares of common stock owned by the
person whose ownership has created the
risk.
RIGHTS PLAN
GENERAL. Under our rights plan, each share of common stock has
attached to it one right. The rights are governed by a rights agreement
between us and ChaseMellon Shareholder Services, L.L.C., as rights agent,
dated as of February 19, 1998. The right is represented by a certificate
which is the same certificate representing the common stock. Each right
entitles the registered holder to purchase from us one one-thousandth of a
share of our series AA participating cumulative preference stock. Because
of the nature of the series AA preferred stock's dividend, liquidation and
voting rights, the value of each one one-thousandth interest in a share of
series AA preference stock purchasable upon exercise of each right should
approximate the value of a share of common stock. The series AA preference
stock has a par value of $0.01 per share and is sold at a purchase price of
$105. The purchase price is subject to adjustment. Until the distribution
date, the rights will be transferred with and only with our common stock
certificates. The rights are not exercisable until after the distribution
date and are subject to redemption or exchange as described below. The
rights expire at the close of business on February 19, 2008, unless we
redeem them earlier. Holding unexercised rights gives you no rights as a
stockholder, including, without limitation, the right to vote or to receive
dividends.
DISTRIBUTION DATE; SEPARATION OF RIGHTS FROM COMMON STOCK. The rights
will separate from our common stock and a distribution date will occur upon
the earlier of two possible times. The first such time is 10 business days
following a public announcement that a person or group of affiliated or
associated persons (an "acquiring person") has acquired, or has the right
to acquire, the ownership of 15% or more of the outstanding shares of our
common stock (the "share acquisition date"). The second possible time is
10 business days (or such later date as determined by our board of
directors prior to any person becoming an acquiring person) following the
commencement of a tender or exchange offer which would result in a person
or group owning 15% or more of our outstanding shares of common stock.
TRIGGERING EVENT. In the event that we are acquired in a merger or
other business combination transaction or 50% or more of our consolidated
assets or earning power are sold after a person or group has become an
acquiring person, we will provide that each holder of a right will have the
right to receive, upon exercise of the right at the current exercise price,
a number of shares of common stock of the acquiring company which at the
time of such transaction will have a market value of two times the exercise
price of the right. In the event that any person or group becomes an
acquiring person, we will provide that each holder of a right, other than
rights beneficially owned by the acquiring person (which will be null and
void), will have the right to receive upon exercise of the right at the
current exercise price, a number of shares of our common stock having a
market value of two times the exercise price of the right.
REDEMPTION OR EXCHANGE OF RIGHTS. At any time prior to the share
acquisition date, we may redeem the rights in whole, but not in part, at a
price of $0.01 per right. The redemption of the rights may be made
effective at such time, on such basis and with such conditions as our board
of directors may establish in its sole discretion.
At any time after the share acquisition date but prior to the
acquisition by an acquiring person of 50% or more of our outstanding common
stock, our board may exchange the rights (other than the rights held by the
acquiring person, which will become null and void), in whole or in part,
for common stock or series AA preference stock at a ratio of one share of
common stock per right or one one-thousandth of a share of series AA
preference stock per right.
ANTI-TAKEOVER EFFECTS. The rights may cause substantial dilution of
shareholder voting strength to a person or group that acquires 15% or more
of our common stock or otherwise attempts to acquire us in a manner that
constitutes a triggering event. The rights should not affect any
prospective offeror who is willing:
<PAGE>
* to make an offer for all of our outstanding shares of
common stock and other voting securities at a price and
terms that are in the best interests of us and our
stockholders as determined by our board of directors; or
* to negotiate with the board of directors because as part of
any negotiated transaction the rights would either be
redeemed or otherwise made inapplicable to the transaction.
The rights should also not interfere with any merger or other business
combination approved by the board of directors since the board may, at its
option, choose to redeem the outstanding rights at the $.01 redemption
price. The board may exercise this option at any time prior to the share
acquisition date.
DESCRIPTION OF PREFERRED STOCK
Each series of preferred stock will have specific terms that we will
describe in a prospectus supplement. The description may not contain all
information that is important to you. The complete terms of the preferred
stock will be contained in our certificate of incorporation and the
certificate of designations relating to the applicable series of preferred
stock. These documents have been or will be included or incorporated by
reference as exhibits to the registration statement of which this
prospectus is a part. You should read our certificate of incorporation and
the applicable certificate of designations.
Our certificate of incorporation authorizes us to issue, without
stockholder approval, up to 5,000,000 shares of preferred stock, par value
$0.01 per share. As of the date of this prospectus, we have not issued any
preferred stock. Our board of directors may from time to time authorize us
to issue one or more series of preferred stock and may fix the
designations, terms, and relative rights and preferences, including the
dividend rate, voting rights, conversion rights, redemption and sinking
fund provisions and liquidation values of each of these series.
Thus, our board of directors could authorize us to issue preferred stock
with voting, conversion and other rights that could adversely affect the
voting power and other rights of holders of our common stock or other
series of preferred stock. Also, the issuance of preferred stock could
have the effect of delaying, deferring or preventing a change in control of
our company.
The particular terms of any series of preferred stock that we offer with
this prospectus will be described in the prospectus supplement relating to
that series of preferred stock. Those terms may include:
* the specific designation, number of shares, rank and purchase
price;
* any liquidation preference per share;
* any redemption, payment or sinking fund provisions;
* any dividend rates (or method of calculation) and the dates on
which any dividends will be payable;
* any voting rights;
* whether the preferred stock is convertible or exchangeable and,
if so,
* the securities into which the preferred stock
is convertible or exchangeable,
* the terms and conditions upon which conversions or
exchanges will be effected, including the initial
conversion or exchange prices or rates,
* the conversion or exchange period, and
* any other related provision;
<PAGE>
* the place or places where dividends and other
payments on the preferred stock will be payable;
and
* any additional voting, dividend, liquidation,
redemption, sinking fund or other rights,
preferences, privileges, limitations and
restrictions.
As described under "Description of Depositary Shares" below, we may,
at our option, elect to offer depositary shares evidenced by depositary
receipts. Each depositary receipt will represent an interest in a share of
a particular series of preferred stock that we will issue and deposit with
a depositary. The interest represented by the depositary receipt will be
described in the applicable prospectus supplement.
DESCRIPTION OF DEPOSITARY SHARES
We summarize below some of the provisions that will apply to the
depositary shares unless the applicable prospectus supplement provides
otherwise. The summary may not contain all information that is important
to you. The complete terms of the depositary shares will be contained in
the depositary receipts and the deposit agreement relating to the
applicable series of preferred stock. These documents have been or will be
included or incorporated by reference as exhibits to the registration
statement of which this prospectus is a part. You should read the
depositary receipts and the depositary agreement. You should also read the
prospectus supplement, which will contain additional information and which
may update or change some of the information below.
GENERAL
We may, at our option, elect to have shares of preferred stock
represented by depositary shares. The shares of any series of preferred
stock underlying the depositary shares will be deposited under a separate
deposit agreement that we will enter into with a bank or trust company of
our choosing. The prospectus supplement relating to a series of depositary
shares will give the name and address of the depositary. Subject to the
terms of the deposit agreement, each owner of a depositary share will be
entitled to all the rights and preferences of the preferred stock
underlying the depositary share in proportion to the applicable interest in
the preferred stock underlying the depositary share.
The depositary shares will be evidenced by depositary receipts issued
pursuant to the deposit agreement. Each depositary share will represent the
applicable interest in a number of shares of a particular series of the
preferred stock described in the applicable prospectus supplement.
Unless otherwise provided in the applicable prospectus supplement,
upon surrender of depositary shares at the office of the depositary and
upon payment of the charges provided in the deposit agreement, a holder of
depositary shares will be entitled to the number of whole shares of
preferred stock evidenced by the surrendered depositary shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash dividends or other cash
distributions received in respect of the preferred stock to the record
holders of depositary shares representing the preferred stock in proportion
to the number of the depositary shares owned by the holders on the relevant
record date.
In the event of a distribution other than in cash, the depositary will
distribute the property received by it to the record holders of depositary
shares entitled to the property. Alternatively, the depositary may, with
our approval, sell the property and distribute the net proceeds from the
sale to the record holders of depositary shares.
The deposit agreement will also contain provisions relating to the
manner in which any subscription or similar rights we offer to holders of
preferred stock will be made available to holders of depositary shares.
<PAGE>
CONVERSION AND EXCHANGE
If any preferred stock underlying depositary shares is convertible or
exchangeable, each record holder of depositary shares will have the right
or obligation to convert or exchange the depositary shares in the manner
provided in the deposit agreement and described in the applicable
prospectus supplement.
REDEMPTION
If the preferred stock underlying depositary shares is subject to
redemption, the depositary shares will be redeemed from the redemption
proceeds received by the depositary. The redemption price per depositary
share will be equal to the aggregate redemption price payable with respect
to the number of shares of preferred stock underlying the depositary
shares. Whenever we redeem preferred stock from the depositary, the
depositary will redeem as of the same redemption date a proportionate
number of depositary shares representing the shares of preferred stock that
we redeemed. If less than all the depositary shares are to be redeemed,
the depositary shares to be redeemed will be selected by lot or pro rata as
we may determine.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the depositary shares will cease, except the right to receive
the redemption price. Any funds we deposit with the depositary for any
depositary shares which the holders fail to redeem will be returned to us
after two years from the date the funds are deposited.
VOTING
Upon receipt of notice of any meeting or action in lieu of any meeting
at which the holders of any shares of preferred stock underlying the
depositary shares are entitled to vote, the depositary will mail the
information contained in the notice to the record holders of the depositary
shares relating to the preferred stock. Each record holder of the
depositary shares on the record date, which will be the same date as the
record date for the preferred stock, will be entitled to instruct the
depositary as to the exercise of the voting rights pertaining to the number
of shares of preferred stock underlying the holder's depositary shares.
The depositary will endeavor, insofar as practicable, to vote the number of
shares of preferred stock underlying the depositary shares in accordance
with these instructions, and we will agree to take all action that the
depositary deems necessary to enable the depositary to do so.
AMENDMENT
The depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may at any time be amended by agreement
between us and the depositary. However, any amendment that materially and
adversely alters the rights of the existing holders of depositary shares
will not be effective unless the amendment has been approved by the record
holders of at least a majority of the depositary shares then outstanding.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges that
arise solely from the existence of the depositary arrangements. We will
pay charges of the depositary in connection with the initial deposit of the
preferred stock and any exchange or redemption of the preferred stock.
Holders of depositary shares will pay all other transfer and other taxes
and governmental charges, and, in addition, any other charges that are
expressly provided in the deposit agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering to us notice of
its election to do so, and we may at any time remove the depositary. Any
resignation or removal will take effect upon the appointment of a successor
depositary and its acceptance of the appointment. We will appoint the
successor depositary within 60 days after delivery of the notice of
resignation or removal.
<PAGE>
TERMINATION OF DEPOSIT AGREEMENT
The depositary may terminate, or we may direct the depositary to
terminate, the deposit agreement if 45 days has expired after the
depositary has delivered to us written notice of its election to resign and
we have not appointed a successor depositary. Upon termination of the
deposit agreement, the depositary will discontinue the transfer of
depositary receipts, will suspend the distribution of dividends, and will
not give any further notices (other than notice of the termination) or
perform any further acts under the deposit agreement. However, the
depositary will continue to deliver preferred stock certificates, together
with dividends and distributions and the net proceeds of any sales of
property, in exchange for depositary receipts surrendered. Upon our
request, the depositary will deliver to us all books, records, certificates
evidencing preferred stock, depositary receipts and other documents
relating to the deposit agreement.
MISCELLANEOUS
We, or at our option the depositary, will forward to the holders of
depositary shares all reports and communications that we are required to
furnish to the holders of preferred stock.
Neither we nor the depositary will be liable if the depositary is
prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the deposit agreement. Our obligations
and those of the depositary under the deposit agreement will be limited to
performance in good faith of our respective duties under the deposit
agreement. Neither we nor the depositary will be obligated to prosecute or
defend any legal proceeding regarding any depositary share or preferred
stock unless satisfactory indemnity has been furnished. We and the
depositary may rely upon written advice of counsel or accountants. We and
the depositary may also rely upon information provided to us by persons
presenting preferred stock for deposit, holders of depositary shares or
other persons we or the depositary believe to be competent. We and the
depositary may also rely upon documents we believe to be genuine.
DESCRIPTION OF DEBT SECURITIES
General
We may issue debt securities from time to time in one or more series. The
debt securities will be our unsecured obligations and will be subordinated
in right of payment to our senior indebtedness. The debt securities will
be convertible into our common stock. The debt securities will be issued
under an indenture between us and a trustee qualified under the Trust
Indenture Act, which will be supplemented (referred to as a "supplemental
indenture") with respect to each series of debt securities we issue. We
will set forth the name of the trustee in the applicable prospectus
supplement.
We have summarized below some of the provisions that will apply to the
debt securities unless the applicable prospectus supplement provides
otherwise. The summary may not contain all information that is important
to you. The indenture and each supplemental indenture have been or will
be included or incorporated by reference as exhibits to the registration
statement of which this prospectus is a part. You should read the
indenture and any supplemental indenture. You should also read the
prospectus supplement, which will contain additional information and which
may update or change some of the information below.
We will describe the specific terms of the series of debt securities
being offered in the related prospectus supplement. These terms will
include some or all of the following:
* the designation or title of the debt securities;
* any limit on the aggregate principal amount of the
debt securities;
* the terms relating to the subordination of the debt
securities;
* whether any of the debt securities are to be issuable as a
global security and whether global securities are to be
issued in temporary global form or permanent global form;
<PAGE>
* the person to whom any interest on the debt security will
be payable if other than the person in whose name the debt
security is registered on the record date;
* the date or dates on which the debt securities will mature;
* the rate or rates of interest, if any, that the debt
securities will bear, or the method of calculation of the
interest rate or rates;
* the date or dates from which any interest on the debt
securities will accrue, the dates on which any interest
will be payable and the record date for any interest
payable on any interest payment date;
* the place or places where the principal of, and interest,
premium and additional amounts (if any) on, the debt
securities will be payable;
* whether we will have the right or obligation to redeem or
repurchase any of the debt securities, and the terms
applicable to any optional or mandatory redemption or
repurchase;
* the denominations in which the debt securities will be
issuable;
* any index or formula used to determine the amount of
payments of principal of, and any premium, additional
amounts (if any) and interest on, the debt securities;
* if other than the principal amount, the portion of the
principal amount of the debt securities that will be
payable if there is an acceleration of the maturity of the
debt securities;
* the terms relating to the conversion of the debt
securities, including the conversion price, the period
during which the debt securities may be converted and other
terms of conversion;
* any sinking fund provisions applicable to the debt
securities;
* the terms of any guarantee of the payment of principal of,
and premium, if any, and interest on, debt securities of
the series;
* any restrictive covenants for the benefit of the holders of
the debt securities;
* the events of default with respect to the debt securities;
and
* any other terms of the debt securities.
We may issue the debt securities as original issue discount securities,
which will be offered and sold at a substantial discount below their stated
principal amount. A prospectus supplement relating to original issue
discount securities will describe federal income tax consequences and other
special considerations applicable to them.
SUBORDINATION OF DEBT SECURITIES
The indebtedness evidenced by the debt securities will be subordinated
and junior in right of payment to the prior payment in full of amounts then
due on all of our senior indebtedness.
Our "senior indebtedness" includes the principal of, and any premium and
accrued and unpaid interest on, the following items, whether outstanding on
or created, incurred or assumed after the date of execution of the
indenture:
<PAGE>
* our indebtedness for money borrowed (other than the debt
securities);
* our guarantees of indebtedness for money borrowed of any
other person; and
* indebtedness evidenced by notes, debentures, bonds
or other instruments of indebtedness for the payment of
which we are responsible or liable, by guarantees or
otherwise.
Senior indebtedness also includes modifications, renewals, extensions and
refundings of any of the types of indebtedness, liabilities, obligations or
guarantees listed above, unless the relevant instrument states that the
indebtedness, liability, obligation or guarantee, or modification, renewal,
extension or refunding, is not senior in right of payment to the
subordinated securities.
We may not make any payment of principal of, or interest or any premium
on, the subordinated securities except for sinking fund payments as
described below if:
* any default or event of default with respect to any senior
indebtedness occurs and is continuing, or
* any judicial proceeding is pending with respect to any
default in payment of senior indebtedness.
We may make sinking fund payments during a suspension of principal or
interest payments on subordinated debt if we make these sinking fund
payments by redeeming or acquiring securities prior to the default or by
converting the securities.
If any debt security is declared due and payable before its specified
date, or if we pay or distribute any assets to creditors upon our
dissolution, winding up, liquidation or reorganization, we must pay all
principal of, and any premium and interest due or to become due on,
all senior indebtedness in full before the holders of debt securities are
entitled to receive or take any payment. Subject to the payment in full of
all senior indebtedness, the holders of the debt securities are to be
subrogated to the rights of the holders of senior indebtedness to receive
payments or distribution of our assets applicable to senior indebtedness
until the debt securities are paid in full.
By reason of this subordination, in the event of insolvency, our
creditors who are holders of senior indebtedness, as well as some of
our general creditors, may recover more, ratably, than the holders of
the debt securities.
The indenture will not limit the amount of senior indebtedness or debt
securities which we may issue.
With respect to any offering of debt securities, we will describe in the
accompanying prospectus supplement or the information incorporated by
reference the approximate amount of senior indebtedness outstanding as of
the end of our most recent fiscal quarter.
CONVERSION OF DEBT SECURITIES
The debt securities will be convertible into our common stock. This means
that if you hold debt securities, you will be permitted at certain times
specified in the related prospectus supplement to convert your debt
securities into common stock for a specified price. We will describe the
conversion price (or the method for determining the conversion price) and
the other terms applicable to conversion in the related prospectus
supplement.
<PAGE>
GUARANTEES
One or more of our subsidiaries, as guarantors, may guarantee our
obligations under the debt securities. Any such guarantee will fully and
unconditionally guarantee our obligations under the debt securities on an
equal and ratable basis subject to the limitation described in the next
paragraph. In addition, any supplemental indenture may require us to cause
any domestic entity that becomes one of our subsidiaries after the date of
any supplemental indenture to enter into a supplemental indenture pursuant
to which such subsidiary shall agree to guarantee our obligations under the
debt securities. If we default in payment of the principal of, or premium,
if any, or interest on, the debt securities, the guarantors, jointly and
severally, will be unconditionally obligated to duly and punctually make
such payments.
Each guarantor's obligations will be limited to the maximum amount that
(after giving effect to all other contingent and fixed liabilities of such
guarantor any collections from, or payments made by or on behalf of, any
other guarantors) will result in the obligations of such guarantor under
the guarantee not constituting a fraudulent conveyance or fraudulent
transfer under Federal or state law. Each guarantor that makes a payment
or distribution under its guarantee shall be entitled to contribution from
each other guarantor in a pro rata amount based on the net assets of each
guarantor.
The prospectus supplement for a particular issue of debt securities will
describe any subsidiary guarantors and any material terms of the guarantees
for such series.
FORM, EXCHANGE, REGISTRATION AND TRANSFER OF DEBT SECURITIES
The debt securities will be issued:
* only in fully registered form;
* without interest coupons; and
* in denominations that are even multiples of $1,000 unless
otherwise specified in a prospectus supplement.
You may have your debt securities broken into more debt securities of
smaller denominations or combined into fewer debt securities of larger
denominations, as long as the total principal amount is not changed. This
is called an "exchange."
You may exchange or transfer debt securities at the office of the
trustee. The trustee acts as our agent for registering debt securities in
the names of holders and transferring debt securities. We may change
this appointment to another entity or perform it ourselves. The entity
performing the role of maintaining the list of registered holders is called
the "security registrar." The security registrar will also perform
transfers.
You will not be required to pay a service charge to transfer or exchange
debt securities, but you may be required to pay for any tax or other
governmental charge associated with the exchange or transfer. The transfer
or exchange will only be made if the security registrar is satisfied with
your proof of ownership.
If we have designated additional transfer agents, they are named in the
prospectus supplement. We may cancel the designation of any particular
transfer agent. We may also approve a change in the office through which
any transfer agent acts.
If the debt securities are redeemable and we redeem less than all of the
debt securities of a particular series, we may block the transfer or
exchange of debt securities during the period beginning 15 days before the
day we mail the notice of redemption and ending on the day of that mailing,
in order to freeze the list of holders to prepare the mailing. We may also
refuse to register transfers or exchanges of debt securities selected for
redemption, except that we will continue to permit transfers and exchanges
of the unredeemed portion of any security being partially redeemed.
<PAGE>
PAYMENT AND PAYING AGENTS
We will pay interest to you if you are a direct holder listed in the
trustee's records at the close of business on a particular day in advance
of each due date for interest, even if you no longer own the security on
the interest due date. That particular day, usually about two weeks in
advance of the interest due date, is called the "regular record date" and
is stated in the prospectus supplement. Holders buying and selling debt
securities must work out between them how to compensate for the fact that
we will pay all the interest for an interest period to the one who is the
registered holder on the regular record date. The most common manner is to
adjust the sale price of the debt securities to allocate interest fairly
between buyer and seller. This allocated interest amount is called
"accrued interest."
We will pay interest, principal and any other money due on the debt
securities at the corporate trust office of the trustee. You must make
arrangements to have your payments picked up at or wired from that office.
We may also choose to pay interest by mailing checks.
GLOBAL SECURITIES
We may issue the debt securities in whole or in part in the form of one
or more global securities. A global security is a security, typically held
by a depositary such as the Depository Trust Company, that represents the
beneficial interests of a number of purchasers of such security. We may
issue the global securities in either temporary or permanent form. We will
deposit global securities with the depositary identified in the prospectus
supplement. Unless it is exchanged in whole or in part for debt securities
in definitive form, a global certificate may generally be transferred only
as a whole unless it is being transferred to certain nominees of the
depositary.
We will describe the specific terms of the depositary arrangement with
respect to a series of debt securities in a prospectus supplement. We
expect that the following provisions will generally apply to depositary
arrangements.
After we issue a global security, the depositary will credit on its book-
entry registration and transfer system the respective principal amounts of
the debt securities represented by such global security to the accounts of
persons that have accounts with such depositary ("participants"). The
underwriters or agents participating in the distribution of the debt
securities will designate the accounts to be credited. If we offer and
sell the debt securities directly or through agents, either we or our
agents will designate the accounts. Ownership of beneficial interests in a
global security will be limited to participants or persons that may hold
interests through participants. Ownership of beneficial interests in the
global security will be shown on, and the transfer of that ownership will
be effected only through, records maintained by the depositary and its
participants.
We and the trustee will treat the depositary or its nominee as the sole
owner or holder of the debt securities represented by a global security.
Except as set forth below or in the applicable prospectus supplement,
owners of beneficial interests in a global security will not be entitled to
have the debt securities represented by such global security registered in
their names, will not receive or be entitled to receive physical delivery
of such debt securities in definitive form and will not be considered the
owners or holders of the debt securities. The laws of some states require
that certain purchasers of securities take physical delivery of the
securities. Such laws may impair the ability to transfer beneficial
interests in a global security.
Principal, any premium and any interest payments on debt securities
represented by a global security registered in the name of a depositary or
its nominee will be made to such depositary or its nominee as the
registered owner of such global security.
We expect that the depositary or its nominee, upon receipt of any
payments, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the
principal amount of the global security as shown on the depositary's or its
nominee's records. We also expect that payments by participants to
owners of beneficial interest in the global security will be governed by
standing instructions and customary practices, as is the case with the
securities held for the accounts of customers registered in "street names"
and will be the responsibility of such participants.
<PAGE>
If the depositary is at any time unwilling or unable to continue as
depositary and we do not appoint a successor depositary within ninety days,
we will issue individual debt securities in exchange for such global
security. In addition, we may at any time in our sole discretion determine
not to have any of the debt securities of a series represented by global
securities and, in such event, will issue debt securities of such series in
exchange for such global security.
Neither we, the trustee nor any paying agent will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in such global security or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. No such person will be liable for any
delay by the depositary or any of its participants in identifying the
owners of beneficial interests in a global security, and we, the trustee
and any paying agent may conclusively rely on instructions from the
depositary or its nominee for all purposes.
COVENANTS
With respect to each series of debt securities, we will be required to:
* pay the principal of, and interest and any premium on, the
debt securities when due;
* maintain a place of payment;
* deliver a report to the trustee at the end of each fiscal year
reviewing our obligations under the indenture; and
* deposit sufficient funds with any paying agent on or before the
due date for any principal, interest or any premium.
The supplemental indenture for any particular series of debt
securities may contain covenants limiting our ability, or the ability of
our subsidiaries, to:
* incur additional debt (including guarantees);
* make certain payments;
* engage in other business activities;
* issue other securities;
* dispose of assets;
* enter into certain transactions with our subsidiaries and
other affiliates;
* undergo a change of control;
* incur liens; and
* enter into certain mergers and consolidations involving us and
our subsidiaries.
Any additional covenants will be described in the applicable prospectus
supplement.
Unless we state otherwise in the applicable prospectus supplement, we
will agree not to consolidate with or merge into any individual,
corporation, partnership or other entity (each, a "person") or sell,
lease, convey, transfer or otherwise dispose of all or substantially all
of our assets to any person, or permit any person to consolidate or merge
into us or sell, lease, convey, transfer or otherwise dispose of all or
substantially all of its assets to us unless:
<PAGE>
* the person formed by or surviving the consolidation or
merger (if not us), or to which the sale, lease,
conveyance, transfer or other disposition is to be made is
a corporation, limited liability company or partnership
organized and existing under the laws of the United States
or any state or the District of Columbia, and the person
assumes by supplemental indenture in a form satisfactory
to the trustee all of our obligations under the indenture;
* immediately after giving effect to the transaction and
treating any debt that becomes an obligation of ours or of
any of our subsidiaries as a result as having been
incurred by us or our subsidiary at the time of the
transaction, no default or event of default shall have
occurred and be continuing; and
* we have delivered to the trustee an officer's certificate
and opinion of counsel, each stating that the merger,
consolidation, sale or conveyance and the supplemental
indenture, if any, comply with the indenture.
EVENTS OF DEFAULT WITH RESPECT TO THE DEBT SECURITIES
Unless we state otherwise in the applicable prospectus supplement, an
"event of default" with respect to the debt securities of any series means:
* our default f or 30 days in payment of any interest on the
debt securities of the series;
* our default in payment of any principal or premium on the
debt securities of the series upon maturity or otherwise;
* our default, for 60 days after delivery of written notice,
in the observance or performance of any other agreement
with respect to the debt securities of the series;
* bankruptcy, insolvency or reorganization events relating to
us or our subsidiaries;
* the entry of a judgment in excess of the amount specified
in the indenture or any supplemental indenture against us
or such significant subsidiary which is not covered by
insurance and not discharged, waived or stayed; or
* any other event of default included in the indenture or any
supplemental indenture and described in the prospectus
supplement.
The consequences of an event of default, and the remedies available under
the indenture or any supplemental indenture, will vary depending upon the
type of event of default that has occurred.
Unless we state otherwise in the applicable prospectus supplement, the
indenture will provide that if an event of default has occurred and is
continuing and is due to
* our failure to pay principal, premium or additional
amounts, if any, or interest on, any series of debt
securities under the indenture,
* our default in the performance of any agreements applicable
to any outstanding debt securities issued under the
indenture or
* our failure to pay at maturity, or other default which
results in the acceleration of, any debt in an amount in
excess of the dollar amount listed in the indenture,
then either the trustee or the holders of the principal amount specified in
the indenture or any supplemental indenture of the outstanding debt
securities of each affected series (with each series treated as a separate
class) may declare the principal (or the portion of the principal that is
specified in the terms of the affected debt securities) of all the affected
debt securities and interest accrued to be due and payable immediately.
<PAGE>
Unless we state otherwise in the applicable prospectus supplement, if an
event of default with respect to any series of debt securities has occurred
and is continuing and is due to a bankruptcy, insolvency or reorganization
event relating to us, then the principal (or such portion of the principal
as is specified in the terms of the debt securities) of and interest
accrued on all debt securities then outstanding will become due and payable
automatically, without further action by the trustee or the holders.
Under conditions specified in the indenture and any supplemental
indenture, the holders of a majority of the principal amount of the debt
securities of each affected series (with each series treated as a separate
class) may annul or waive the declarations and past defaults described
above. These holders may not, however, waive a continuing default in
payment of principal of (or premium, if any) or interest on, or in respect
of the conversion of, debt securities.
The indenture will provide that the trustee, subject to the duty of the
trustee during a default to act with the required standard of care, has no
obligation to exercise any right or power granted to it under the indenture
at the request of holders of debt securities unless the holders have
indemnified the trustee. Subject to the provisions in the indenture and
any supplemental indenture for the indemnification of the trustee and other
limitations specified therein, the holders of a majority in principal
amount of the outstanding debt securities of each affected series (with
each series treated as a separate class) may direct the time, method and
place of conducting any proceeding for any remedy available to the trustee,
or exercising any trust or power conferred on the trustee with respect to
the series.
If you hold debt securities of any series, you will not be permitted
under the terms of the indenture or any supplemental indenture to
institute any action against us in connection with any default (except
actions for payment of overdue principal, premium, or interest or other
amounts or to enforce conversion rights) unless
* you have given the trustee written notice of the default
and its continuance;
* holders of not less than 25% in principal amount of the
debt securities of each affected series issued under the
indenture (with each series treated as a separate class)
have made a written request upon the trustee to institute
the action and have offered the trustee reasonable
indemnity;
* the trustee has not instituted the action within 60 days of
the request; and
* the trustee has not received directions inconsistent with
the written request by the holders of a majority in
principal amount of the outstanding debt securities of all
affected series issued under the indenture (with each
series treated as a separate class).
DEFEASANCE PROVISIONS APPLICABLE TO THE DEBT SECURITIES
Unless otherwise specified in a prospectus supplement, under the
indenture and any supplemental indenture, we, at our option
* will be discharged from obligations in respect of the debt
securities of a series (except for certain obligations to
register the transfer or exchange of debt securities,
replace stolen, lost or mutilated debt securities,
maintain paying agencies and hold moneys for payment in
trust or
* need not comply with certain restrictive covenants of the
indenture or supplemental indenture,
in each case if we deposit, in trust with the trustee, money or U.S.
government obligations which through the payment of interest and principal
will provide money sufficient to pay all the principal (including any
mandatory sinking fund payments) of, and interest and premium, if any, on
the debt securities of that series on the dates on which such payments are
due.
To exercise the above option, we must deliver to the trustee an opinion
of counsel that:
<PAGE>
* the deposit and related defeasance would not cause the
holders of the debt securities of that series to recognize
income, gain or loss for federal income tax purposes and,
in the case of a discharge pursuant to the first bullet
point above, the opinion will be accompanied by a private
letter ruling to that effect from the IRS or a revenue
ruling concerning a comparable form of transaction to that
effect published by the IRS, and
* if listed on any national securities exchange, the debt
securities would not be delisted from that exchange as a
result of the exercise of the option.
MODIFICATION AND WAIVER
We and the trustee may modify the terms of the indenture or any
supplemental indenture or waive certain provisions thereof with the consent
of the holders of not less than a majority in aggregate principal amount of
the debt securities of each series affected by the modification or waiver.
However, provisions of the indenture or any supplemental indenture may not
be waived or modified without the consent of the holder of each debt
security affected thereby if the modification or waiver would:
* change the stated maturity of the principal of, or premium,
if any, on, or any installment of principal, if any, of or
interest on, or any additional amounts payable with respect
to, any debt security;
* reduce the principal amount of, or premium or interest on,
or any additional amounts payable with respect to, any debt
security;
* impair the right to institute suit for the enforcement of
any payment on or after the stated maturity of any debt
securities or, in the case of redemption, exchange or
conversion, on or after the redemption, exchange or
conversion date or, in the case of repayment at the option
of any holder, on or after the date for repayment, or in
the case of a change in control, after the change in
control purchase date;
* reduce the percentage and principal amount of the
outstanding debtsecurities, the consent of whose holders
is required in order to take certain actions;
* change any of our obligation to maintain an office or
agency in the places and for the purposes required by the
indenture;
* modify or affect in any manner adverse to the holders of
the debt securities the terms and conditions of our
obligations regarding the due and punctual payment of
principal or, any premium on or all interest on the debt
securities; or
* modify any of the above provisions.
The holders of at least a majority in aggregate principal amount of debt
securities of any series may, on behalf of the holders of all debt
securities of that series, waive our compliance with certain restrictive
provisions of the indenture or supplemental indenture. The holders of not
less than a majority in aggregate principal amount of debt securities of
any series may, on behalf of all holders of debt securities of that series,
waive any past default and its consequences under the indenture with
respect to the debt securities of that series, except:
* a payment default with respect to debt securities of that
series; or
* a default of a covenant or provision of the indenture or
supplemental indenture that cannot be modified or amended
without the consent of the holder of each debt security
of any series.
<PAGE>
THE TRUSTEE
We will include information regarding the trustee in the prospectus
supplement relating to any series of debt securities. If any event of
default shall occur (and be continuing) under the indenture or any
supplemental indenture, the trustee will be required to use the degree of
care and skill of a prudent man in the conduct of his own affairs. The
trustee will be under no obligation to exercise any of its powers at the
request of any of the holders of the debt securities, unless the holders
shall have offered the trustee reasonable indemnity against the costs,
expenses and liabilities it might incur. The indenture, any supplemental
indenture, and the provisions of the Trust Indenture Act incorporated by
reference thereby contain limitations on the rights of the trustee, should
it become a creditor of ours, to obtain payment of claims or to realize on
property received by it in respect of any claims as security or otherwise.
DESCRIPTION OF WARRANTS
We summarize below some of the provisions that will apply to the warrants
unless the applicable prospectus supplement provides otherwise. The
summary may not contain all information that is important to you. The
complete terms of the warrants will be contained in the applicable warrant
certificate and warrant agreement. These documents have been or will be
included or incorporated by reference as exhibits to the registration
statement of which this prospectus is a part. You should read the warrant
certificate and the warrant agreement. You should also read the prospectus
supplement, which will contain additional information and which may update
or change some of the information below.
GENERAL
We may issue warrants to purchase common stock independently or together
with other securities. The warrants may be attached to or separate from
the other securities. We may issue warrants in one or more series, each
series of warrants will be issued under a separate warrant agreement to be
entered into between us and a warrant agent. The warrant agent will be our
agent and will not assume any obligations to any owner of the warrants.
The prospectus supplement and the warrant agreement relating to any
series of warrants will include specific terms of the warrants. These
terms include the following:
* the title and aggregate number of warrants;
* the price or prices at which the warrants will be issued;
* the amount of common stock for which the warrant can be
exercised and the price or the manner of determining the
price or other consideration to purchase the common stock;
* the date on which the right to exercise the warrant begins
and the date on which the right expires;
* if applicable, the minimum or maximum amount of warrants
that may be exercised at any one time;
* if applicable, the designation and terms of the securities
with which the warrants are issued and the number of
warrants issued with each other security;
* any provision dealing with the date on which the warrants
and related securities will be separately transferable;
* any mandatory or optional redemption provision;
* the identity of the warrant agent; and
* any other terms of the warrants.
<PAGE>
The warrants will be represented by certificates. The warrants may be
exchanged under the terms outlined in the warrant agreement. We will not
charge any service charges for any transfer or exchange of warrant
certificates, but we may require payment for tax or other governmental
charges in connection with the exchange or transfer. Unless the prospectus
supplement states otherwise, until a warrant is exercised, a holder will
not be entitled to any payments on or have any rights with respect to the
common stock issuable upon exercise of the warrant.
EXERCISE OF WARRANTS. To exercise the warrants, the holder must provide
the warrant agent with the following:
* payment of the exercise price;
* any required information described on the warrant
certificates;
* the number of warrants to be exercised;
* an executed and completed warrant certificate; and
* any other items required by the warrant agreement.
The warrant agent will issue a new warrant certificate for any warrants
not exercised. Unless the prospectus supplement states otherwise,
no fractional shares will be issued upon exercise of warrants, but we will
pay the cash value of any fractional shares otherwise issuable.
The exercise price and the number of shares of common stock that each
warrant can purchase will be adjusted upon the occurrence of events
described in the warrant agreement, including the issuance of a common
stock dividend or a combination, subdivision or reclassification of common
stock. Unless the prospectus supplement states otherwise, no adjustment
will be required until cumulative adjustments require an adjustment of at
least 1%. From time to time, we may reduce the exercise price as may be
provided in the warrant agreement.
Unless the prospectus supplement states otherwise, if we enter into any
consolidation, merger, or sale or conveyance of our property as an
entirety, the holder of each outstanding warrant will have the right to the
kind and amount of shares of stock, other securities, property or cash
receivable by a holder of the number of shares of common stock into which
the warrants were exercisable immediately prior to the occurrence of the
event.
MODIFICATION OF THE WARRANT AGREEMENT. The common stock warrant agreement
will permit us and the warrant agent, without the consent of the warrant
holders, to supplement or amend the agreement in the following
circumstances:
* to cure any ambiguity;
* to correct or supplement any provision which may be
defective or inconsistent with any other provisions; or
* to add new provisions regarding matters or questions that
we and the warrant agent may deem necessary or desirable
and which do not adversely affect the interests of the
warrant holders.
PLAN OF DISTRIBUTION
We may sell securities directly to one or more purchasers or to or
through underwriters, dealers or agents. The related prospectus supplement
will set forth the terms of each offering, including the name or names
of any underwriters, the purchase price and proceeds to us from such
sale, any underwriting discounts and other items constituting underwriters'
compensation, the initial public offering price and any discounts or
concessions allowed, reallowed or paid to dealers, and any securities
exchanges on which the securities may be listed.
<PLAN>
We may distribute our securities from time to time in one or more
transactions at a fixed price or prices (which may be changed), at market
prices prevailing at the time of sale, at prices related to prevailing
market prices or at negotiated prices. Our prospectus supplement will
describe the method of distribution.
If underwriters are used in the sale, the underwriters may acquire the
securities for their own account and may resell them from time to time in
one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale.
Securities may be offered to the public through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
underwriters without a syndicate. If an underwriting syndicate is used,
the managing underwriter or underwriters will be named in the prospectus
supplement. Unless otherwise set forth in the prospectus supplement, the
obligations of the underwriters to purchase securities will be subject to
certain conditions precedent, and the underwriters will be obligated to
purchase all securities offered if any are purchased. Any initial public
offering price and any discounts or concessions allowed, reallowed or paid
to dealers may be changed from time to time.
If a dealer is used in an offering of securities, we may sell the
securities to the dealer, as principal. The dealer may then resell the
securities to the public at varying prices to be determined by the dealer
at the time of sale. The terms of the transaction will be set forth in a
prospectus supplement.
Commissions payable by us to any agent involved in the offer or sale of
securities (or the method by which such commissions may be determined) will
be set forth in a prospectus supplement. Unless otherwise indicated in the
prospectus supplement, the agent will be acting on a best efforts basis.
If so indicated in the prospectus supplement, we may authorize
underwriters, dealers or agents to solicit offers by certain specified
institutions to purchase securities from us pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the
future. These contracts will be subject to the conditions set forth in the
prospectus supplement, and the prospectus supplement will set forth the
commission payable by us for solicitation of the contracts.
Dealers and agents named in a prospectus supplement may be deemed to be
underwriters of the securities within the meaning of the Securities Act of
1933. Underwriters, dealers and agents may be entitled under agreements
entered into with us to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments that the underwriters, dealers or
agents may be required to make. Underwriters, dealers and agents may be
customers of, engage in transactions with, or perform services for us in
the ordinary course of business.
As of the date of this prospectus, only our common stock is traded on the
Nasdaq National Market. Except for our common stock, each security sold
using this prospectus will have no established trading market. Any
underwriters to whom securities are sold may make a market in the
securities, but will not be obligated to do so and may discontinue their
market making activities at any time. There can be no assurance that a
secondary market will be created for any of the securities that may be sold
using this prospectus or that any market created will continue.
LEGAL MATTERS
The validity of the securities will be passed upon for us by Jones,
Walker, Waechter, Poitevent, Carre`re & Dene`gre, L.L.P., New Orleans,
Louisiana and for any underwriters, dealers or agents by counsel which we
will name in the applicable prospectus supplement.
EXPERTS
The audited financial statements incorporated in this prospectus by
reference to our Annual Report on Form 10-K for the year ended December 31,
1999 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in accounting and auditing.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The fees and expenses payable by us in connection with the issuance and
distribution of the securities being registered, other than underwriting
discounts and commissions, are as follows:
SEC registration fee.................................. $ 33,000
*Printing costs....................................... 75,000
*Legal fees and expenses.............................. 100,000
*Accounting fees and expenses......................... 50,000
*Blue sky fees and expenses........................... 10,000
*Trustee's and registrar's fees....................... 15,000
*Miscellaneous........................................ 67,000
Total................................................. $350,000
*Estimated.
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware empowers us to
indemnify, subject to the standards prescribed in that Section, any person
in connection with any action, suit or proceeding brought or threatened by
reason of the fact that the person is or was our director, officer,
employee or agent. Our certificate of incorporation provides that our
board may adopt bylaws or resolutions indemnifying any person who is or was
one of our directors or officers to the fullest extent authorized by law.
In addition, Section 9 of our bylaws provides that we shall defend and
indemnify each person who was or is made a party to, or is threatened to be
made a party to, or is otherwise involved in, any action, suit, or
proceeding by reason of the fact that the person is or was our director or
officer if:
* the director or officer is successful in defending the
claim on its merits or otherwise; or
* the director or officer meets the standard of conduct
described in Section 9 of our bylaws.
However, the director or officer of our company will not be
entitled to indemnification if:
* the claim is one brought by the director or officer against
us;
* the claim is one brought by the director or officer as a
derivative action by us or in our right, and the action is
not approved by our board of directors.
The rights conferred by Section 9 of our bylaws are contractual rights
and include the right to be paid by us the expenses incurred in defending
the action, suit or proceeding in advance of its final disposition.
Article IX of our certificate of incorporation provides that our
directors will not be personally liable to us or our stockholders for
monetary damages resulting from breaches of their fiduciary duty as
directors except (1) for any breach of the duty of loyalty to us or our
stockholders, (2 ) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (4) under
Section 174 of the General Corporation Law of Delaware, which makes
directors liable for unlawful dividend or unlawful stock repurchases or
redemptions or (3) transactions from which directors derive improper
personal benefit.
We have an insurance policy insuring our directors and officers against
certain liabilities, including liabilities under the Securities Act of
1933.
<PAGE>
ITEM 16. EXHIBITS.
1 Form of Underwriting Agreement.**
4.1 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's Current
Report on Form 8-K dated July 21, 1997 and filed with the
Commission on August 1, 1997).
4.2 By-Laws of the Company, as amended, effective as of February 14,
1999 (incorporated by reference to Exhibit 3.2 to the Company's
Current Report on Form 8-K dated July 21, 1997 and filed with the
Commission on August 1, 1997).
4.3 Rights Agreement dated as of February 19, 1998, between Trico
Marine Services, Inc. and ChaseMellon Shareholder Services, L.L.C.,
as Rights Agent (incorporated by reference to Exhibit 99.1
to the Company's Registration Statement on Form 8-A filed with
the Commission on March 6, 1998).
4.4 Form of Rights Certificate and of Election to Exercise
(incorporated by reference to Exhibit 99.2 to the Company's
Registration Statement on Form 8-A filed with the Commission on
March 6, 1998).
4.5 Certificate of Designations for the Company's Series AA
Participating Cumulative Preference Stock (incorporated by
reference to Exhibit 99.3 to the Company's Registration Statement
on Form 8-A filed with the Commission on March 6, 1998).
4.6 Form of Indenture for Debt Securities.**
4.7 Form of Debt Security.**
4.8 Form of Stock Certificate of the Company's Common Stock
(incorporated by reference to Exhibit 5.1 to the Registration
Statement on Form S-1 (File Number 333-2990).
4.9 Form of Deposit Agreement.**
4.10 Form of Depositary Receipt.**
5 Opinion of Jones, Walker, Waechter, Poitevent, Carre`re &
Dene`gre, L.L.P., as to the legality of the securities.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Jones, Walker, Waechter, Poitevent, Carre`re &
Dene`gre, L.L.P. (included as part of Exhibit 5.)
24 Powers of Attorney for Trico Marine Services, Inc. and Additional
Registrants (included on signature pages).
25 Statement of Eligibility of Trustee on Form T-1 with respect to Debt
Securities.**
** To be filed by amendment or subsequently incorporated into this
registration statement.
ITEM 17. UNDERTAKINGS.
(1) Each of the undersigned Registrants hereby undertakes:
<PAGE>
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement; notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value
of securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration statement.
(b) 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
therein, and the offering of such securities at that time shall be deemed
to be the initial bona-fide offering thereof.
(c) 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.
(2) Each of the undersigned Registrants hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Company'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 therein, and the
offering of such securities at that time shall be deemed to be the initial
bona-fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(4) Each of the undersigned Registrants 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 of
1939 in accordance with the rules and regulations prescribed by the SEC
under section 305(b)(2) of the Trust Indenture Act.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it had 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 Houston, Texas, on April 10, 2000.
TRICO MARINE SERVICES, INC.
By: /s/ Thomas E. Fairley
----------------------------------
Thomas E. Fairley
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Thomas E. Fairley and Victor M.
Perez, or either of them, his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead,
in any and all capacities, to sign any and all amendments (including post-
effective amendments) to this registration statement, and to file the same
with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-
in-fact and agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons and in the
capacities indicated on April 10, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C> <C>
/s/ Thomas E. Fairley
- ------------------------------------- President, Chief Executive Officer
and Director
Thomas E. Fairley (Principal Executive Officer)
/s/ Victor M. Perez
- ------------------------------------- Chief Financial Officer and Treasurer
Victor M. Perez (Principal Financial Officer)
/s/ Kenneth W. Bourgeois
- ------------------------------------- Vice President and Controller
Kenneth W. Bourgeois (Principal Accounting Officer)
/s/ Ronald O. Palmer
- ------------------------------------ Chairman of the Board of Directors and
Ronald O. Palmer Director
- ---------------------------------- Director
H. K. Acord
/s/ Benjamin F. Bailar
- --------------------------------- Director
Benjamin F. Bailar
/s/ Joel V. Staff
- -------------------------------- Director
Joel V. Staff
/s/ Edward C. Hutcheson, Jr.
- ------------------------------- Director
Edward C. Hutcheson, Jr.
- ------------------------------ Director
James C. Comis III
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it had 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 Houston, Texas, on April 10,
2000.
TRICO MARINE ASSETS, INC.
By: /s/ Thomas E. Fairley
----------------------------------
Thomas E. Fairley
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Thomas E. Fairley and Victor M.
Perez, or either of them, his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead,
in any and all capacities, to sign any and all amendments (including post-
effective amendments) to this registration statement, and to file the same
with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-
in-fact and agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons and in the
capacities indicated on April 10, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Thomas E. Fairley
- ------------------------------- President and Chief Executive Officer
Thomas E. Fairley (Principal Executive Officer)
/s/ Ronald O. Palmer
- ------------------------------- Executive Vice President and Director
Ronald O. Palmer
/s/ Victor M. Perez
- ------------------------------- Chief Financial Officer and Treasurer
Victor M. Perez (Principal Financial and Accounting Officer)
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it had 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 Houston, Texas, on April 10,
2000.
TRICO MARINE OPERATORS, INC.
By: /s/ Thomas E. Fairley
----------------------------------
Thomas E. Fairley
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Thomas E. Fairley and Victor M.
Perez, or either of them, his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead,
in any and all capacities, to sign any and all amendments (including post-
effective amendments) to this registration statement, and to file the same
with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-
in-fact and agent full power and authority to do and perform each and every
act and thing requisite and ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons and in the
capacities indicated on April 10, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Thomas E. Fairley President, Chief Executive Officer
- --------------------------------- and Director
Thomas E. Fairley (Principal Executive Officer)
/s/ Victor M. Perez
- --------------------------------- Chief Financial Officer and Treasurer
Victor M. Perez (Principal Financial and Accounting Officer)
</TABLE>
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
1 Form of Underwriting Agreement.**
4.1 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's Current
Report on Form 8-K dated July 21, 1997 and filed with the
Commission on August 1, 1997).
4.2 By-Laws of the Company, as amended, effective as of February 14,
1999 (incorporated by reference to Exhibit 3.2 to the Company's
Current Report on Form 8-K dated July 21, 1997 and filed with the
Commission on August 1, 1997).
4.3 Rights Agreement dated as of February 19, 1998, between Trico
Marine Services, Inc. and ChaseMellon Shareholder Services, L.L.C.,
as Rights Agent (incorporated by reference to Exhibit 99.1
to the Company's Registration Statement on Form 8-A filed with
the Commission on March 6, 1998).
4.4 Form of Rights Certificate and of Election to Exercise
(incorporated by reference to Exhibit 99.2 to the Company's
Registration Statement on Form 8-A filed with the Commission on
March 6, 1998).
4.5 Certificate of Designations for the Company's Series AA
Participating Cumulative Preference Stock (incorporated by
reference to Exhibit 99.3 to the Company's Registration Statement
on Form 8-A filed with the Commission on March 6, 1998).
4.6 Form of Indenture for Debt Securities.**
4.7 Form of Debt Security.**
4.8 Form of Stock Certificate of the Company's Common Stock
(incorporated by reference to Exhibit 5.1 to the Registration
Statement on Form S-1 (File Number 333-2990).
4.9 Form of Deposit Agreement.**
4.10 Form of Depositary Receipt.**
5 Opinion of Jones, Walker, Waechter, Poitevent, Carre`re &
Dene`gre, L.L.P., as to the legality of the securities.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Jones, Walker, Waechter, Poitevent, Carre`re &
Dene`gre, L.L.P. (included as part of Exhibit 5.)
24 Powers of Attorney for Trico Marine Services, Inc. and Additional
Registrants (included on signature pages).
25 Statement of Eligibility of Trustee on Form T-1 with respect to Debt
Securities.**
** To be filed by amendment or subsequently incorporated into this
registration statement.
JONES, WALKER
WAECHTER, POITEVENT
CARRE`RE & DENE`GRE, L.L.P.
April 10, 2000
Trico Marine Services, Inc.
Trico Marine Operators, Inc.
Trico Marine Assets, Inc.
250 North American Court
Houma, Louisiana 70363
Re: Registration Statement on Form S-3
Gentlemen:
We have acted as your counsel in connection with the preparation of
the registration statement on Form S-3 (the "Registration Statement") filed
by Trico Marine Services, Inc. (the "Company"), Trico Marine Assets, Inc.
("Assets") and Trico Marine Operators, Inc. ("Operators" and together with
Assets, the "Guarantors"), under the Securities Act of 1933, as amended
(the "Act"), with the Securities and Exchange Commission (the
"Commission"). All terms used without other definitions are intended to
have the meanings given to them in the Registration Statement.
The Registration Statement relates to the registration of up to $125
million maximum aggregate initial offering price of the following
securities: (a) Common Stock issued by the Company; (b) Preferred Stock
issued by the Company; (c) Warrants issued by the Company; (d) Depositary
Shares issued by the Company; (e) Debt Securities issued by the Company;
and (f) Guarantees issued by the Guarantors of Debt Securities. The
Company may also issue shares of Common Stock upon the conversion of Debt
Securities, Preferred Stock or the exercise of Warrants registered pursuant
to the Registration Statement or offered pursuant to the Prospectus forming
a part thereof. The foregoing securities are collectively referred to as
the "Securities."
The Securities may be issued from time to time in one or more series
and as set forth in a supplement to the prospectus that forms part of the
Registration Statement. The particular terms of each series of Securities
offered by a particular prospectus supplement will be described in the
prospectus supplement. The Debt Securities will each be issued under an
indenture (the "Indenture") to be entered into prior to the offer and sale
of any Debt Securities.
In rendering the opinions expressed below, we have examined originals,
or photostatic or certified copies, of such records and documents of the
Company and the Guarantors, certificates of officers of the Company and the
Guarantors and of public officials, and such other documents as we have
deemed relevant. In such examination, we have assumed the genuineness of
all signatures the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted
to us as certified or photostatic copies and the authenticity of the
originals of such documents.
Based upon the foregoing, and subject to the qualifications stated
herein, we are of the opinion that:
1. The Common Stock will be legally issued, fully paid and non-
assessable when:
A. (i) the Registration Statement, as finally amended, shall have
become effective under the Act; (ii) the Company's Board of Directors
shall have taken all necessary corporate action to approve the
issuance of the Common Stock; and (iii) certificates representing the
Common Stock shall have been duly executed, countersigned and
registered and duly delivered to the purchasers thereof against
payment of the agreed consideration therefor in accordance with the
applicable underwriting, purchase or similar agreement; or
B. the issuance of shares of Common Stock has been duly authorized,
upon conversion or exercise of any other Security that has been duly
authorized, issued, paid for and delivered, in accordance with the
terms of such Security after the issuance of the shares of Common
Stock in accordance with the terms of such other Security.
2. Each series of Preferred Stock will be legally issued, fully
paid and non-assessable when: (i) the Registration Statement, as
finally amended, shall have become effective under the Act, (ii) the
Company's Board of Directors shall have taken all necessary corporate
action to approve the issuance of such Preferred Stock and to
establish the terms and conditions thereof; (iv) a prospectus
supplement with respect to such series of Preferred Stock shall have
been filed (or transmitted for filing) with the Commission pursuant to
Rule 424(b) of the Act and (v) certificates representing such series
of Preferred Stock shall have been duly executed, countersigned and
registered and duly delivered to the purchasers thereof against
payment of the agreed consideration therefor in accordance with the
applicable underwriting, purchase or similar agreement.
3. Each series of Warrants will be legally issued and binding
obligations of the Company when: (i) the Registration Statement, as
finally amended, shall have become effective under the Act; (ii) a
Warrant Agreement relating to such Warrants shall have been duly
authorized, executed and delivered by the Company and the warrant
agent or agents thereunder; (iii) the Company's Board of Directors
shall have taken all necessary corporate action to approve the
issuance of such Warrants and to establish the terms and conditions
thereof; (iv) a prospectus supplement with respect to such Warrants
shall have been filed (or transmitted for filing) with the Commission
pursuant to Rule 424(b) of the Act; (v) any and all actions required
under the Indenture to validly issue the Debt Securities and under the
Delaware General Corporation Law to validly issue the Common Stock or
Preferred Stock upon exercise of the Warrants shall have been taken;
and (vi) such Warrants shall have been duly executed and authenticated
or countersigned as provided in the Warrant Agreement relating thereto
and duly delivered to the purchasers thereof against payment of the
agreed consideration therefor in accordance with the applicable
underwriting, purchase or similar agreement.
4. The Depositary Shares will be legally issued, fully paid and
non-assessable when (i) the Registration Statement, as finally
amended, shall have become effective under the Act; (ii) the Company's
Board of Directors shall have taken all necessary corporate action to
approve the issuance of the Depositary Shares; and (iii) depositary
receipts shall have been duly delivered in accordance with the terms
of a deposit agreement against the deposit of duly authorized, validly
issued, fully paid and non-assessable shares of Preferred Stock.
5. Each series of Debt Securities and the Guarantees will be
legally issued and constitute the valid and binding obligations of the
Company and Guarantor, as the case may be, when (i) the Registration
Statement, as finally amended, shall have become effective under the
Act; (ii) any necessary supplemental indenture to the Indenture shall
have been duly authorized, executed and delivered by the Company and
the Trustee; (iii) the Company's and the Guarantor's respective boards
of directors shall have taken all necessary corporate action to
approve the issuance of such Debt Securities and Guarantees and to
establish the terms and conditions thereof; (iv) a prospectus
supplement with respect to such series of Debt Securities and
Guarantees shall have been filed (or transmitted for filing) with the
Commission pursuant to Rule 424(b) of the Act; and (v) any required
certificates representing such series of Debt Securities and
Guarantees shall have been duly authenticated, executed and delivered
in accordance with the Indenture against payment therefor in
accordance with the applicable underwriting agreement or upon exchange
in accordance with the terms of any other Security that has been duly
authorized, issued, paid for and delivered.
The opinions set forth in paragraphs 3, 4 and 5 hereof are subject to
the qualification that enforceability may be limited by (i) applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
similar laws of general applicability relating to or affecting the
enforcement of creditors' rights, (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law) and (iii) governmental authority to limit, delay or
prohibit the making of payments outside of the United States or in a
foreign currency or currency unit.
In connection with our opinions expressed above, we have assumed that,
at or prior to the time of the delivery of any such Security: (i) the board
of directors of the Company or Guarantors, as the case may be, shall have
duly authorized the issuance and sale of such Security and such
authorization shall not have been modified or rescinded; (ii) the
Registration Statement shall have been declared effective and such
effectiveness shall not have been terminated or rescinded; (iii) the
Indenture, if any, shall have been duly authorized, executed and delivered
by the Company, the Guarantor and the trustee and shall have been qualified
under the Trust Indenture Act of 1939, as amended; and (iv) there will not
have occurred any change in law affecting the validity or enforceability of
such Security. We have also assumed that none of the terms of any Security
to be established subsequent to the date hereof nor the issuance and
delivery of such Security, nor the compliance by the Company or any
Guarantor with the terms of such Security, nor the compliance by the
Company or any Guarantor with the terms of such Security, will violate any
applicable law or will result in a violation of any provision of any
instrument or agreement then binding upon the Company or any Guarantor, or
any restriction imposed by any court or governmental body having
jurisdiction over the Company or any Guarantor.
The foregoing opinion is limited in all respects to the laws of the
States of Delaware and Louisiana and federal laws, and we are expressing no
opinion as to the effect of the laws of any other jurisdiction, domestic or
foreign.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us in the prospectus
included therein under the caption "Legal Matters." In giving this
consent, we do not admit that we are within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as
amended, or the general rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
JONES, WALKER, WAECHTER, POITEVENT,
CARRE`RE & DENE`GRE, L.L.P.
CONSENT OF INDEPENDENT ACCOUNTS
-------------------------------
We hereby consent to the incorporation by reference in this Registration on
Form S-3 of our report dated February 15, 2000 relating to the financial
statements and financial statement schedule, which appears in Trico Marine
Services, Inc.'s Annual Report on Form 10-K for the year ended December 31,
1999. We also consent to the references to us under the heading "Experts"
in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
New Orleans, Louisiana
April 7, 2000
