<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 1, 1995.
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------
TIDEWATER INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 1440 CANAL STREET 72-0487776
(STATE OR OTHER NEW ORLEANS, LOUISIANA (I.R.S. EMPLOYER
JURISDICTION 70112 IDENTIFICATION NO.)
OF INCORPORATION OR (504) 568-1010
ORGANIZATION)
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CLIFFE F. LABORDE
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
TIDEWATER INC.
1440 CANAL STREET
NEW ORLEANS, LOUISIANA 70112
(504) 568-1010
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
<TABLE>
<S> <C> <C>
CURTIS R. HEARN TIMOTHY G. MASSAD T. MARK KELLY
JONES, WALKER, WAECHTER, CRAVATH, SWAINE & MOORE VINSON & ELKINS L.L.P.
POITEVENT, CARRERE & DENEGRE, WORLDWIDE PLAZA 2300 FIRST CITY TOWER
L.L.P. 825 EIGHTH AVENUE 1001 FANNIN
201 ST. CHARLES AVENUE NEW YORK, NEW YORK 10019 HOUSTON, TEXAS 77002-6760
NEW ORLEANS, LA 70170-5100 (212) 474-1000 (713) 758-2222
(504) 582-8000
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable 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, check the following box.
[_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [_]
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. [_]
---------------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.10 per share
(3) 2,000,000 shares $24.00 $48,000,000 $16,552
</TABLE>
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(1) Includes 200,000 shares that the Underwriters have the option to purchase
to cover over-allotments, if any.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), based on the average of the high and low sales
prices per share of Common Stock on the New York Stock Exchange on August
30, 1995.
(3) Each share of Common Stock includes Rights under the Company's Rights
Agreement, which Rights are attached to and trade with the Common Stock of
the Company.
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PRELIMINARY PROSPECTUS SHALL NOT CONSTITUTE AN OFFER +
+TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF +
+THESE SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR +
+SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE +
+SECURITIES LAWS OF ANY SUCH JURISDICTION. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED SEPTEMBER 1, 1995
PROSPECTUS
1,800,000 SHARES
TIDEWATER INC.
COMMON STOCK
[LOGO OF TIDEWATER INC. APPEARS HERE]
-----------
All of the 1,800,000 shares of Common Stock of Tidewater Inc. (the "Company")
offered hereby (the "Offering") are being sold by certain stockholders of the
Company (the "Selling Stockholders"). The Company will not receive any of the
proceeds from the sale of the shares of Common Stock offered hereby. See
"Selling Stockholders."
The Common Stock is listed on the New York Stock Exchange and the Pacific
Stock Exchange under the symbol "TDW." On August 31, 1995, the closing sale
price of the Common Stock, as reported on the New York Stock Exchange Composite
Tape, was $24.75 per share.
-----------
SEE "RISK FACTORS" BEGINNING ON PAGE 6 OF THIS PROSPECTUS FOR A DISCUSSION OF
CERTAIN FACTORS THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN
THE COMMON STOCK.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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<TABLE>
<CAPTION>
UNDERWRITING PROCEEDS TO
PRICE TO DISCOUNT AND SELLING
PUBLIC COMMISSIONS(1) STOCKHOLDERS(2)
--------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Share............................. $ $ $
--------------------------------------------------------------------------------
Total(3)................................ $ $ $
--------------------------------------------------------------------------------
</TABLE>
--------------------------------------------------------------------------------
(1) The Company and the Selling Stockholders have agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933. See "Underwriting."
(2) Prior to deducting $50,000 of estimated expenses payable by the Selling
Stockholders. The expenses payable by the Company are estimated to be
$110,000.
(3) The Selling Stockholders have granted the Underwriters 30-day options to
purchase up to 200,000 additional shares of Common Stock on the same terms
to cover over-allotments, if any. If all such additional shares are
purchased, the total Price to Public will be $ , the total Underwriting
Discount and Commissions will be $ and the total Proceeds to Selling
Stockholders will be $ . See "Underwriting."
-----------
The Common Stock offered hereby is offered by the Underwriters, subject to
prior sale, when, as and if delivered to and accepted by the Underwriters,
subject to approval of certain legal matters by counsel for the Underwriters
and certain other conditions. The Underwriters reserve their right to withdraw,
cancel or modify such offer and to reject orders in whole or in part. It is
expected that delivery of share certificates for the Common Stock will be made
at the offices of Lazard Freres & Co. LLC, New York, New York, on or about
, 1995.
-----------
LAZARD FRERES & CO. LLC
SALOMON BROTHERS INC
HOWARD, WEIL, LABOUISSE, FRIEDRICHS
INCORPORATED
-----------
The date of this Prospectus is September , 1995
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK
AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE OR THE PACIFIC
STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING,
IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company has filed a Registration Statement on Form S-3 (the "Registration
Statement") with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), pertaining
to the Common Stock covered by this Prospectus. This Prospectus omits certain
information and exhibits included in the Registration Statement, copies of
which may be obtained upon payment of a fee prescribed by the Commission or may
be examined free of charge at the principal office of the Commission in
Washington, D.C.
The Company is subject to the informational requirements of the Securities
Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Commission. Such
reports, proxy statements and other information filed with the Commission by
the Company can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the regional offices of the Commission
located at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and at Seven World Trade Center, New York, New York 10048.
Copies of such material can be obtained from the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. The Company's Common Stock is listed on the New York Stock Exchange and
the Pacific Stock Exchange (Symbol: TDW). Reports, proxy statements and other
information concerning the Company can be inspected at the offices of such
exchanges at 20 Broad Street, New York, New York 10005 and 301 Pine Street, San
Francisco, California 94104, respectively.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission pursuant to the Exchange Act, are by this reference incorporated in
and made a part of this Prospectus: (i) the Company's Annual Report on Form 10-
K for the fiscal year ended March 31, 1995 (File No. 1-6311); (ii) the
Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
1995; and (iii) the description of the Company's capital stock set forth in its
amendments to Registration Statement under the Exchange Act (Forms 8-A/A) filed
with the Commission on May 24, 1993.
All reports and other documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of the offering of the Common Stock
offered hereby shall be deemed to be incorporated by reference herein and to be
part of this Prospectus from their respective dates of filing. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded to the extent that a
statement contained herein or in any other document subsequently filed which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom this Prospectus is delivered, upon a written or oral request, a copy of
any or all of the documents that are incorporated herein by reference (other
than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into such documents). Requests should be directed to
Tidewater Inc., Attention: Secretary, 1440 Canal Street, New Orleans, Louisiana
70112 (Telephone: (504) 568-1010).
2
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial data appearing elsewhere in this Prospectus and in
the consolidated financial statements, including the notes thereto, and other
documents that are incorporated herein by reference. Unless otherwise
indicated, the information in this Prospectus assumes that the Underwriters'
over-allotment options will not be exercised.
THE COMPANY
The Company serves the international oil and gas industry through its two
principal divisions: Tidewater Marine and Tidewater Compression. Currently,
Tidewater Marine and Tidewater Compression account for approximately 80% and
20%, respectively, of the Company's revenues. The principal executive offices
of the Company are located at 1440 Canal Street, New Orleans, Louisiana 70112
(Telephone: (504) 568-1010).
TIDEWATER MARINE
Through its Tidewater Marine division, the Company is the world's largest
provider of offshore supply vessels and marine support services. With a fleet
of approximately 570 vessels, Tidewater Marine operates, and has a leading
market share, in most of the world's significant oil and gas exploration and
production markets. Tidewater Marine provides services supporting all phases of
offshore exploration, development and production, including: towing and anchor
handling of mobile drilling rigs and equipment; transporting supplies and
personnel to sustain drilling, workover and production activities; and
supporting pipelaying and other offshore construction activities.
The Company's fleet is deployed in the major offshore oil and gas areas of
the world. The principal areas of the Company's operations include the U.S.
Gulf of Mexico, areas offshore Australia, Brazil, Egypt, India, Indonesia,
Malaysia, Mexico, Trinidad, Venezuela, various countries of West Africa and in
the North Sea and the Persian Gulf. The Company conducts its operations through
wholly-owned subsidiaries and joint ventures.
The Company's largest class of vessels consists of towing-supply and supply
vessels that are chartered to customers for use principally in transporting
supplies and equipment from shore bases to offshore drilling rigs, platforms
and other installations. In addition, vessels of the towing-supply type are
equipped for and are capable of towing drilling rigs and other marine equipment
and setting anchors for positioning and mooring drilling rigs.
The Company's other classes of vessels include crew and utility vessels that
are chartered to customers for use principally in transporting supplies and
personnel from shore bases to offshore drilling rigs, platforms and other
installations, and offshore tugs that tow floating drilling rigs, dock tankers,
tow barges, assist pipelaying and construction barges and are used in a variety
of other commercial towing operations, including towing barges carrying a
variety of bulk cargoes and containerized cargo.
The Company's vessels also include inshore tugs and both inshore and offshore
barges, production, line-handling and various special purpose vessels. Inshore
tugs, which are operated principally within inland waters, tow drilling rigs to
and from their locations, and tow barges carrying equipment and materials for
use principally in inland water drilling and production operations. Barges are
either used in conjunction with Company tugs or are bareboat chartered to
others.
TIDEWATER COMPRESSION
Tidewater Compression provides natural gas and air compression equipment and
services principally to the energy industry, primarily in the United States.
With a fleet of approximately 2,900 compressors, Tidewater Compression operates
the largest rental fleet of gas compressors in the United States, which it
rents to oil and gas producers and processors. The compressors are used
primarily to boost the pressure of
3
<PAGE>
natural gas from the wellhead into gas gathering systems, into nearby gas
processing plants, or into high pressure pipelines. Gas compression equipment
and services offered by the Company also are used in the production of coalbed
methane and in enhanced recovery projects such as fire-flooding, gas lift, or
gas injection, with the objective of increasing the amount of oil or
condensate that can be recovered from a reservoir. Customers often rent
compressors rather than purchase them because the required compressor
horsepower and stage configuration can change several times during the
lifetime of a project. The primary market served is natural gas production
activities in the United States, although the Company is actively seeking to
establish markets outside the United States.
During fiscal 1995, the Company almost tripled the size of its gas
compression fleet through its acquisition of the natural gas compression
assets of Halliburton Company and one of its affiliated companies
(collectively "Halliburton Compression") and Brazos Gas Compressing Company
("Brazos"), a subsidiary of Mitchell Energy & Development Corp. ("Mitchell").
In the Halliburton Compression acquisition, the rental agreements entered into
by Halliburton for rental of its compressors to customers were assumed by the
Company. As part of the Brazos transaction, the Company entered into an
agreement to provide the gas compression service needs of Mitchell Energy
Corporation, Mitchell's oil and gas operating subsidiary, for a period of two
years at fair market value rental rates.
THE OFFERING
The selling stockholders (the "Selling Stockholders") are Corporate
Partners, L.P., Corporate Offshore Partners, L.P. and The State Board of
Administration of Florida (collectively, the "Corporate Partners Group"),
which, prior to the Offering, own in the aggregate approximately 7.5% of the
outstanding shares of Common Stock. The Selling Stockholders were previously
stockholders of Zapata Gulf Marine Corporation ("Zapata Gulf") and received
their shares of Common Stock upon the acquisition of Zapata Gulf by the
Company in January 1992. After giving effect to the Offering, the Corporate
Partners Group will own approximately 4.1% of the outstanding shares of Common
Stock (3.7%, if the Underwriters' over-allotment options are exercised in
full). See "Selling Stockholders."
<TABLE>
<C> <S>
Common Stock offered by the Selling Stockholders. 1,800,000 shares(/1/)
Shares outstanding before and after the Offering. 53,307,918(/2/)
NYSE and PSE Common Stock Symbol................. TDW
Dividends........................................ On July 20, 1995, the Board
of Directors of the Company
increased the regular
quarterly dividend to $.125
per share.
Use of Proceeds.................................. The Company will not receive
any of the proceeds from the
sale of the shares of Common
Stock offered hereby.
</TABLE>
-------
(1) Does not include 200,000 shares that the Underwriters have the option to
purchase to cover over-allotments, if any.
(2) Based on the number of shares of Common Stock outstanding at August 29,
1995. Does not include 703,188 shares of Common Stock issuable upon
exercise of stock options (currently exercisable or exercisable within 60
days) granted under existing stock option plans.
4
<PAGE>
SELECTED FINANCIAL DATA
The following table contains selected financial data for the Company and its
subsidiaries for the three months ended June 30, 1995 and 1994 and for each of
the fiscal years in the five-year period ended March 31, 1995. The data for
each of the fiscal years in the five-year period ended March 31, 1995 are
derived from the consolidated financial statements of the Company and its
subsidiaries, which financial statements have been audited by KPMG Peat Marwick
LLP, independent certified public accountants. The consolidated financial
statements as of March 31, 1995 and 1994, and for each of the years in the
three-year period ended March 31, 1995, and the report of KPMG Peat Marwick LLP
thereon, have been incorporated by reference into this Prospectus. The data for
the three-month periods ended June 30, 1995 and 1994 are derived from the
unaudited condensed consolidated financial statements for the related periods
included in the Form 10-Q that has been incorporated by reference into this
Prospectus. The following financial data should be read in conjunction with
such financial statements, including the notes thereto. Results of operations
for the interim periods are not necessarily indicative of results that may be
expected for any other interim period or for the year as a whole.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
JUNE 30, YEAR ENDED MARCH 31,
------------------------ ---------------------------------------------------------------------
1995(/1/) 1994(/2/)(/3/) 1995(/1/)(/3/)(/4/) 1994(/3/)(/5/) 1993(/7/)(/8/) 1992(/8/) 1991(/8/)
--------- -------------- ------------------- -------------- -------------- --------- ---------
(THOUSAND OF DOLLARS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
Revenues:
Marine operations...... $113,997 $118,418 $455,284 $466,601 $413,439 $430,681 $394,325
Compression operations. 27,039 14,913 83,490 55,471 62,099 54,561 61,479
-------- -------- -------- -------- -------- -------- --------
$141,036 $133,331 $538,774 $522,072 $475,538 $485,242 $455,804
======== ======== ======== ======== ======== ======== ========
Earnings from continuing
operations............. $ 16,493 $ 13,441 $ 42,628 $ 36,130 $ 27,809 $ 25,904 $ 36,904
======== ======== ======== ======== ======== ======== ========
Net earnings............ $ 16,493 $ 13,441 $ 42,628 $ 24,160 $ 24,268 $ 26,261 $ 34,646
======== ======== ======== ======== ======== ======== ========
Per common share:
Earnings from
continuing operations. $ .31 $ .25 $ .80 $ .67 $ .53 $ .49 $ .70
======== ======== ======== ======== ======== ======== ========
Net earnings........... $ .31 $ .25 $ .80 $ .45 $ .46 $ .50 $ .66
======== ======== ======== ======== ======== ======== ========
Total assets............ $872,721 $773,455 $902,185 $809,886 $838,748 $867,573 $896,420
======== ======== ======== ======== ======== ======== ========
Long-term debt.......... $ 60,000 $ -- $100,000 $ -- $ 95,722 $123,896 $181,622
======== ======== ======== ======== ======== ======== ========
Cash dividends declared
per common share(/6/).. $ .10 $ .10 $ .40 $ .30 $ .325 $ -- $ --
======== ======== ======== ======== ======== ======== ========
</TABLE>
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(1) See Note (3) of Notes to Unaudited Condensed Consolidated Financial
Statements included in the Form 10-Q incorporated by reference herein
concerning an increase in useful lives of marine vessels effective April 1,
1995. The effect of this change in accounting estimate increased earnings
from continuing operations for the three months ended June 30, 1995 by
$2,400,000 ($.04 per common share). See Note (1) of Notes to Consolidated
Financial Statements in the Form 10-K incorporated by reference herein
concerning an increase effective October 1, 1994 in the estimated salvage
value of natural gas compressors. The effect of this change in accounting
estimate increased earnings from continuing operations by $1,900,000 ($.04
per common share) for the year ended March 31, 1995 and $1,200,000 ($.02
per common share) for the three months ended June 30, 1995.
(2) See Note (6) of Notes to Unaudited Condensed Consolidated Financial
Statements in the Form 10-Q incorporated by reference herein concerning a
$1,100,000 ($.02 per common share) after-tax property tax refund during the
three months ended June 30, 1994.
(3) See Note (4) of Notes to Unaudited Condensed Consolidated Financial
Statements in the Form 10-Q incorporated by reference herein and Note (2)
of Notes to Consolidated Financial Statements in the Form 10-K incorporated
by reference herein for pro forma results of operations of the Company and
of the acquired operations of Brazos and Halliburton for the years ended
March 31, 1995 and 1994 and the three months ended June 30, 1994 as though
the acquisitions had been consummated on April 1 of the respective periods.
(4) See Note (11) of Notes to Consolidated Financial Statements included in the
Form 10-K incorporated by reference herein concerning a $3,700,000 ($.07
per common share) after-tax charge to earnings during the year ended March
31, 1995 reflecting the cost of a restructuring program of the Company's
corporate headquarters and worldwide marine operations.
(5) See Note (7) of Notes to Consolidated Financial Statements included in the
Form 10-K incorporated by reference herein concerning an $11,970,000 ($.22
per common share) extraordinary loss on early debt retirement during the
year ended March 31, 1994.
(6) As a result of the timing of the fiscal 1994 Board of Directors meetings,
only three quarterly dividends of $.10 per common share each were declared
during the year ended March 31, 1994.
(7) See Note (8) of Notes to Consolidated Financial Statements included in the
Form 10-K incorporated by reference herein concerning a $6,640,000 ($.13
per common share) charge resulting from a change in accounting for
postretirement benefits other than pensions during the year ended March 31,
1993.
(8) See Note (3) of Notes to Consolidated Financial Statements included in the
Form 10-K incorporated by reference herein concerning the March 1993
disposal of the Company's container shipping segment. Earnings (loss) from
this discontinued operation were $3,099,000 ($.06 per common share),
$357,000 ($.01 per common share) and ($2,258,000) (($.04) per common share)
for the years ended March 31, 1993, 1992 and 1991, respectively.
5
<PAGE>
RISK FACTORS
Prospective purchasers of the Common Stock offered hereby should carefully
consider the risk factors set forth below, as well as the other information
contained or incorporated by reference in this Prospectus.
INDUSTRY CONDITIONS
Tidewater Marine's operations are materially dependent upon the levels of
activity in offshore oil and natural gas exploration, development and
production throughout the world. Such activity levels are affected both by
short-term and long-term trends in world oil and natural gas prices. In recent
years, oil and natural gas prices and, therefore, the level of offshore
drilling and exploration activity, have been extremely volatile. Any prolonged
reduction in oil and natural gas prices would, in all likelihood, depress the
level of offshore exploration and development activity and result in a
corresponding decline in the demand for the Company's marine support services.
Any sustained reduction in such activity would, in all likelihood, have a
material adverse effect on the Company's revenues and profitability.
INTERNATIONAL MARINE OPERATIONS
The Company's foreign marine equipment operations are subject to the usual
risks inherent in doing business in foreign countries. Such risks include
political changes, possible vessel seizure, company nationalization or other
governmental actions, currency restrictions and revaluations and import/export
restrictions, all of which are beyond the control of the Company. Although it
is impossible to predict the likelihood of such occurrences or their effect on
the Company, the Company believes these risks to be within acceptable limits,
and, in view of the mobile nature of the Company's principal revenue producing
assets, does not consider them to constitute a factor materially adverse to the
conduct of its foreign marine equipment operations as a whole.
INSURANCE
During the past several years, the Company has experienced significant
increases in the cost of marine insurance. These increases were due in part to
the contraction of capacity in the third-party marine insurance market, with
those insurers that remain in the market being unwilling to provide levels of
coverage available in the past at comparable rates. The increase also reflects,
however, an increase in the Company's loss experience in recent years, the
financial instability of certain underwriters and the recognition of
underinsured marine losses for Zapata Gulf marine insurance programs. Although
management believes that the Company's loss experience and current insurance
costs are comparable to those of other marine service companies, the Company
has added and expanded vessel safety programs since April 1992 in an effort to
control future insurance costs. No assurance is given that the programs
initiated by the Company will succeed or that capacity in the insurance
industry will increase sufficiently to control rising insurance costs. However,
management believes that the Company currently is adequately insured and will
continue to be able to obtain adequate coverage at competitive rates for the
foreseeable future.
AGE OF FLEET
Because of over capacity within the industry on a worldwide basis, there has
been no significant new vessel construction since 1983. Currently, the average
age of the Company's vessel fleet is approximately 17 years, and the average
age of the Company's towing-supply and supply vessels is approximately 15
years. Because repair and maintenance costs increase as vessels age, they have
an estimated economic life ranging from 15 years for the Company's smaller
vessels to approximately 25 years for its towing-supply and supply vessels.
There can be no assurance that the Company will be able to maintain the size of
its fleet through extending the economic life of existing vessels, acquiring
used vessels or, unless day rates increase substantially, through new vessel
construction.
FOREIGN OWNERSHIP LIMITATION
Under the Merchant Marine Act of 1920, in the event that persons other than
U.S. citizens should in the aggregate own in excess of 25% of the Company's
outstanding stock, the Company's U.S. flag vessels
6
<PAGE>
would lose the privilege of engaging in the transportation of merchandise in
U.S. coastwise trade. To assure the Company's continued ability to engage in
U.S. coastwise trade, the Company's Restated Certificate of Incorporation
contains provisions designed to assure that not more than 24% of the
outstanding shares of Common Stock are owned by persons who are not U.S.
citizens. The Restated Certificate provides that any transfer or purported
transfer of shares of Common Stock that would result in the ownership by
persons who are not U.S. citizens of more than 24% of the then outstanding
shares of Common Stock will not be effective against the Company, and the
Company has the power to deny voting and dividend rights with respect to such
shares. Based on information supplied to the Company by its transfer agent,
approximately 10% of the Common Stock outstanding, including approximately 7.5%
of the Common Stock outstanding owned by the Selling Stockholders, was owned by
non-U.S. citizens at August 29, 1995; however, the Company cannot predict the
percentage of the outstanding Common Stock that will be owned by non-U.S.
citizens at the time offers or sales are made pursuant to this Prospectus.
CURRENCY FLUCTUATIONS AND INFLATION
Because of its significant foreign operations, the Company is exposed to
currency fluctuations and exchange risks. To minimize the financial impact of
these items the Company attempts to contract a majority of its services in
United States dollars.
Day-to-day operating costs generally are affected by inflation. However,
because the energy services industry requires specialized goods and services,
general economic inflationary trends may not affect the Company's operating
costs. The major impact on operating costs is the level of offshore exploration
and development spending by energy exploration and production companies. As
this spending increases, prices of goods and services used by the oil and gas
industry and the energy services industry will increase. Future improvements in
vessel day rates and compressor rental rates may buffer the Company from the
inflationary effects on operating costs.
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of the Offering, the Selling Stockholders will collectively
be the beneficial owners of approximately 4.1% of the Company's outstanding
Common Stock (3.7%, if the Underwriters' over-allotment options are exercised
in full). The shares of Common Stock that will continue to be owned by the
Selling Stockholders may be eligible for resale under Rule 144 or otherwise.
The Selling Stockholders have agreed not to offer or sell any shares of Common
Stock for a period of 90 days from the date of this Prospectus without the
prior written consent of the representatives of the Underwriters. The
eligibility for sale and the sale of shares of Common Stock by the Selling
Stockholders, whether as part of a registered public offering, pursuant to an
exemption or exemptions from Securities Act registration, or otherwise, could
adversely affect the market price of the Common Stock.
7
<PAGE>
SELLING STOCKHOLDERS
The following table sets forth the number and percentage of shares of Common
Stock owned by each Selling Stockholder at August 29, 1995 and after giving
effect to the Offering. The Company will not receive any proceeds from the sale
of Common Stock by the Selling Stockholders.
<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP BENEFICIAL OWNERSHIP
PRIOR TO OFFERING NUMBER OF AFTER OFFERING
-------------------- SHARES TO --------------------
NUMBER OF BE NUMBER OF
NAME SHARES PERCENTAGE SOLD(/1/) SHARES PERCENTAGE
---- --------- ---------- --------- --------- ----------
<S> <C> <C> <C> <C> <C>
Corporate Partners,
L.P.(/2/)(/3/)............ 3,394,683 6.4% 1,530,286 1,864,397 3.5%
Corporate Offshore
Partners, L.P.(/2/)(/3/).. 243,316 0.5% 109,685 133,631 0.3%
The State Board of
Administration
of Florida(/2/)(/3/)...... 355,000 0.7% 160,029 194,971 0.4%
--------- --- --------- --------- ---
Total for the Corporate
Partners Group(/2/)(/3/).. 3,992,999 7.5% 1,800,000 2,192,999 4.1%
In care of Corporate
Advisors, L.P.(/2/)
One Rockefeller Plaza
New York, NY 10020
</TABLE>
--------
(1) Assumes the Underwriters' over-allotment options are not exercised.
(2) Lester Pollack, who is a director of the Company, is the Senior Managing
Director of Corporate Advisors, L.P. ("Corporate Advisors") and is a
Managing Director of Lazard Freres & Co. LLC ("Lazard"), which is one of
the representatives of the Underwriters. See "Underwriting." A wholly-owned
subsidiary of Lazard is the general partner of Corporate Advisors, which in
turn is the general partner of Corporate Partners, L.P. and Corporate
Offshore Partners, L.P. Pursuant to an investment management agreement,
Corporate Advisors also manages certain investments on behalf of The State
Board of Administration of Florida ("SBAF") (including SBAF's investment in
the Company described above) and SBAF has appointed Corporate Advisors as
SBAF's attorney-in-fact with respect to the shares of the Company's Common
Stock under investment management.
(3) The table reflects shares held of record by these Selling Stockholders;
however, all of such shares may be deemed to be beneficially owned by the
other members of the Corporate Partners Group because of the relationships
described in footnote (2).
The shares of Common Stock offered hereby were issued to the Selling
Stockholders in connection with the Company's merger with Zapata Gulf, and are
being registered by the Company at the request of the Selling Stockholders. The
Company will bear the expenses of the registration of the shares of Common
Stock offered hereby, other than underwriting discount and commissions, the
fees and expenses of counsel to the Selling Stockholders and all other out-of-
pocket expenses of the Selling Stockholders. The expenses to be paid by the
Company for the registration of the shares of Common Stock offered hereby are
estimated at $110,000. The expenses to be paid by the Selling Stockholders are
estimated at $50,000.
The Company has agreed to indemnify the Selling Stockholders against certain
liabilities under the Securities Act. Under certain stockholders' agreements
entered into between the Company and the Selling Stockholders at the time of
the Zapata Gulf merger, following the sale of shares of Common Stock offered
hereby, the Selling Stockholders will not be entitled to any additional demand
registrations but will be entitled to include shares of Common Stock owned by
them in most registrations of Common Stock initiated by the Company.
8
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement,
the Selling Stockholders have agreed to sell to each of the Underwriters named
below (the "Underwriters"), for whom Lazard Freres & Co. LLC, Salomon Brothers
Inc and Howard, Weil, Labouisse, Friedrichs Incorporated are acting as
Representatives (the "Representatives"), and each of the Underwriters has
severally agreed to purchase from the Selling Stockholders, the respective
number of shares of Common Stock set forth opposite its name below:
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITERS SHARES
------------ ---------
<S> <C>
Lazard Freres & Co. LLC...............................................
Salomon Brothers Inc..................................................
Howard, Weil, Labouisse, Friedrichs Incorporated......................
---------
Total............................................................... 1,800,000
=========
</TABLE>
In the Underwriting Agreement, the Underwriters have agreed, subject to the
terms and conditions set forth therein, to purchase all shares of Common Stock
offered hereby if any such shares are purchased. In the event of a default of
any Underwriter, the Underwriting Agreement provides that, in certain
circumstances, purchase commitments of the non-defaulting Underwriter may be
increased or the Underwriting Agreement may be terminated. The Selling
Stockholders have been advised by the Underwriters that they propose initially
to offer such shares of Common Stock to the public at the public offering price
set forth on the cover page of this Prospectus, and to certain dealers at such
price, less a concession not in excess of $ per share of the Common Stock.
The Underwriters may allow, and such dealers may reallow, a concession not in
excess of $ per share of Common Stock to other dealers. After the Offering,
the public offering price and such concessions may be changed.
The Selling Stockholders have granted to the Underwriters options,
exercisable during the 30-day period after the date of this Prospectus, to
purchase up to 200,000 additional shares of Common Stock (divided on a pro rata
basis among the Selling Stockholders) at the same price per share as the
initial 1,800,000 shares of Common Stock to be purchased by the Underwriters.
The Underwriters may exercise such options to cover over-allotments in the sale
of the shares of Common Stock. To the extent that the Underwriters exercise
such options, each Underwriter will have a firm commitment, subject to certain
conditions, to purchase the same proportion of the option shares of Common
Stock as the number of such shares of Common Stock to be purchased and offered
by such Underwriter as set forth in the above table bears to the total number
of shares of Common Stock initially offered by the Underwriters hereby.
The Company and the Selling Stockholders have agreed not to offer, sell,
contract to sell, or otherwise dispose of, directly or indirectly, or announce
the offering by the Company of, any shares of Common Stock, or any securities
convertible into, or exchangeable for, shares of Common Stock, for a period of
60 days, in the case of the Company, and 90 days, in the case of the Selling
Stockholders, from the date of this Prospectus, except those offered hereby or
issued by the Company pursuant to its existing benefit plans or existing stock
option (including restricted stock) plans, the conversion of existing
securities, or pursuant to the Company's Rights Agreement without the prior
written consent of the Representatives. In addition, the Company may issue
shares of Common Stock in connection with an acquisition or merger after a 30
day period from the date of this Prospectus, although the Company currently has
no agreements or understandings for any such transactions.
The Underwriting Agreement provides that the Company (and the Selling
Stockholders, with respect to information provided by them) will indemnify the
several Underwriters against certain liabilities, including liabilities under
the Securities Act, or contribute to payments the Underwriters may be required
to make in respect thereof.
9
<PAGE>
LEGAL MATTERS
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., New Orleans,
Louisiana, will render an opinion that under the General Corporation Law of
Delaware the shares of Common Stock offered hereby have been duly authorized
and validly issued and are fully paid and nonassessable.
Cliffe F. Laborde, General Counsel of the Company, and Jones Walker will pass
upon certain legal matters for the Company, Vinson & Elkins L.L.P. will pass
upon certain legal matters for the Underwriters and Cravath, Swaine & Moore
will pass upon certain legal matters for the Selling Stockholders. Mr. Laborde
beneficially owns approximately 56,509 shares of Common Stock.
EXPERTS
The consolidated financial statements and schedule of Tidewater Inc. and
subsidiaries as of March 31, 1995 and 1994 and for each of the years in the
three-year period ended March 31, 1995, incorporated by reference herein and in
the Registration Statement, have been incorporated by reference herein in
reliance upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of such
firm as experts in accounting and auditing. The report of KPMG Peat Marwick LLP
covering the March 31, 1995 consolidated financial statements refers to a
change in the method of accounting for postretirement benefits other than
pensions in fiscal year 1993.
With respect to the unaudited interim financial information of Tidewater Inc.
and subsidiaries for the periods ended June 30, 1995 and 1994, incorporated by
reference herein, the independent certified public accountants have reported
that they applied limited procedures in accordance with professional standards
for a review of such information. However, their separate report included in
the June 30, 1995 Form 10-Q and incorporated by reference herein states that
they did not audit and they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their report on such
information should be restricted in light of the limited nature of the review
procedures applied. The accountants are not subject to the liability provisions
of Section 11 of the Securities Act of 1933 for their report on the unaudited
interim financial information because this report is not a "report" or a "part"
of the Registration Statement on Form S-3 prepared or certified by the
accountants within the meaning of Sections 7 and 11 of the Securities Act.
10
<PAGE>
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY, THE SELLING STOCKHOLDERS OR ANY UNDERWRITER. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY SINCE SUCH DATE.
----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 2
Prospectus Summary......................................................... 3
Risk Factors............................................................... 6
Selling Stockholders....................................................... 8
Underwriting............................................................... 9
Legal Matters.............................................................. 10
Experts.................................................................... 10
</TABLE>
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
1,800,000 SHARES
LOGO
[LOGO OF TIDEWATER INC.]
TIDEWATER INC.
COMMON STOCK
----------------
PROSPECTUS
----------------
LAZARD FRERES & CO. LLC
SALOMON BROTHERS INC
HOWARD, WEIL,
LABOUISSE, FRIEDRICHS
INCORPORATED
SEPTEMBER , 1995
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated fees and expenses payable by the Registrant in connection with
the offering of the shares of Common Stock registered hereunder are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............. $ 16,552
Printing fees and expenses...................................... 20,000
Legal fees and expenses payable by the Registrant............... 25,000
Accounting fees and expenses.................................... 32,000
Blue Sky fees and expenses...................................... 10,000
NASD filing fee................................................. 5,300
Miscellaneous................................................... 1,148
--------
Total........................................................... $110,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") authorizes a
court to award, or a corporation's board of directors to grant, indemnity to
directors and officers under certain circumstances for liabilities incurred in
connection with their activities in such capacities (including reimbursement
for expenses incurred). Section 102(b)(7) of the DGCL permits a provision in
the certificate of incorporation of each corporation organized thereunder,
including the Company, eliminating or limiting, with certain exceptions, the
personal liability of a director to the corporation or its shareholders for
monetary damages for certain breaches of fiduciary duty as a director. Article
VIII of the Company's By-laws provides that the Company shall indemnify any
directors, directors emeriti, officers, employees and agents who were or are
parties to or threatened to be made parties to any threatened, pending or
completed action, suit or proceeding for liabilities and expenses incurred by
reason of their actions in such capacities on behalf of the Company, provided
that the party seeking indemnification acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; provided, however, that
in the case of an action or suit by or in the right of the corporation to
procure a judgment in its favor, no indemnification shall be made in respect of
any claim, issue or matter as to which such party shall have been adjudged to
be liable to the corporation unless and only to the extent that an appropriate
court shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such party is
fairly and reasonably entitled to indemnity for such expenses that the court
shall deem proper. The Company's By-laws also state, among other things, that
it is the policy of the Company to indemnify directors, directors emeriti,
officers, agents and employees of the Company to the fullest extent permitted
by law. In addition, the Company maintains an insurance policy designed to
reimburse the Company for any payments made by it pursuant to the foregoing
indemnification. Such policy has coverage of $15 million, subject to a $5
million self-insured retention.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
1 --Form of Underwriting Agreement
4.1 --Restated Certificate of Incorporation of the Company, (filed with the
Commission as Exhibit 3(a) to the Company's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1993 and incorporated herein by
reference)
4.2 --By-laws of the Company (filed with the Commission as Exhibit 3(b) to the
Company's Quarterly Report on Form 10-Q for the quarter ended September
30, 1993 and incorporated herein by reference)
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
4.3 --Restated Rights Agreement dated as of December 17, 1993 between the
Company and the Rights Agent named therein (filed with the Commission as
Exhibit 4 to the Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1993 and incorporated herein by reference)
5 --Opinion of Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P.
15 --Letter re unaudited interim financial information
23.1 --Consent of KPMG Peat Marwick LLP
23.2 --Consent of Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P. (included in Exhibit 5)
24 --Powers of Attorney (included on the signature page of this Registration
Statement)
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to 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.
(2) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
under Item 15 above, 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.
(3) (a) That, for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared
effective.
(b) That, for purposes of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF NEW ORLEANS, STATE OF LOUISIANA, ON SEPTEMBER 1,
1995.
TIDEWATER INC.
/s/ Cliffe F. Laborde
By:__________________________________
Cliffe F. Laborde
Senior Vice President and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT EACH PERSON WHOSE SIGNATURE APPEARS
IMMEDIATELY BELOW CONSTITUTES AND APPOINTS WILLIAM C. O'MALLEY AND CLIFFE F.
LABORDE, 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 NECESSARY TO BE DONE, AS FULLY TO ALL INTENTS AND PURPOSES AS HE
MIGHT OR COULD DO IN PERSON, HEREBY 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, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ William C. O'Malley Chairman of the Board of September 1, 1995
____________________________________ Directors, President and
William C. O'Malley Chief Executive Officer
/s/ Ken C. Tamblyn Executive Vice President and September 1, 1995
____________________________________ Chief Financial Officer
Ken C. Tamblyn (Principal Financial and
Accounting Officer)
/s/ Robert H. Boh Director September 1, 1995
____________________________________
Robert H. Boh
/s/ Donald T. Bollinger Director September 1, 1995
____________________________________
Donald T. Bollinger
/s/ Arthur R. Carlson Director September 1, 1995
____________________________________
Arthur R. Carlson
</TABLE>
S-1
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ Hugh J. Kelly Director September 1, 1995
____________________________________
Hugh J. Kelly
/s/ John P. Laborde Director September 1, 1995
____________________________________
John P. Laborde
/s/ Paul W. Murrill Director September 1, 1995
____________________________________
Paul W. Murrill
Director September , 1995
____________________________________
Lester Pollack
/s/ J. Hugh Roff, Jr. Director September 1, 1995
____________________________________
J. Hugh Roff, Jr.
</TABLE>
S-2
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION LOCATION(/1/)
------- -------------------- --------
<C> <S> <C>
1 --Form of Underwriting Agreement F
4.1 --Restated Certificate of Incorporation of the I
Company, (filed with the Commission as Exhibit 3(a)
to the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1993 and incorporated
herein by reference)
4.2 --By-laws of the Company (filed with the Commission as I
Exhibit 3(b) to the Company's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1993
and incorporated herein by reference)
4.3 --Restated Rights Agreement dated as of December 17, I
1993 between the Company and the Rights Agent named
therein (filed with the Commission as Exhibit 4 to
the Company's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1993 and incorporated
herein by reference)
5 --Opinion of Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P. F
15 --Letter re unaudited interim financial information F
23.1 --Consent of KPMG Peat Marwick LLP F
23.2 --Consent of Jones, Walker, Waechter, Poitevent, F
Carrere & Denegre, L.L.P. (included in Exhibit 5)
--Powers of Attorney (included on the signature page
24 of this Registration Statement) F
</TABLE>
--------
(1) "I" indicates that the Exhibit is incorporated by reference herein. "F"
indicates that the Exhibit is filed herewith.
<PAGE>
EXHIBIT 1
1,800,000 SHARES
TIDEWATER INC.
COMMON STOCK
($.10 PAR VALUE)
UNDERWRITING AGREEMENT
September , 1995
Lazard Freres & Co. LLC
Salomon Brothers Inc
Howard, Weil, Labouisse, Friedrichs
Incorporated
c/oLazard Freres & Co. LLC
30 Rockefeller Plaza
New York, New York 10020
Dear Sirs:
Section 1. Introductory. Certain stockholders of Tidewater Inc., a Delaware
corporation (the "Company") named in Schedule I hereto (the "Selling
Stockholders") severally propose to sell to the several underwriters named in
Schedule II hereto (the "Underwriters") for whom you are acting as
representatives (the "Representatives") an aggregate of 1,800,000 shares of
Common Stock, $.10 par value (the "Firm Shares") of the Company, each Selling
Stockholder selling the amount set forth opposite such Selling Stockholder's
name in Schedule I hereto. The Selling Stockholders also propose to sell to the
several Underwriters, upon the terms and conditions set forth in Section 4
hereof, up to an additional 200,000 shares of Common Stock of the Company (the
"Additional Shares"), with each Selling Stockholder selling the amount set
forth opposite such Selling Stockholder's name in Schedule I hereto. The Firm
Shares and the Additional Shares are hereinafter sometimes collectively
referred to as the "Shares."
The Company and the Selling Stockholders hereby, severally and not jointly,
hereby agrees with the Underwriters as follows:
Section 2. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to, and agrees with, the several Underwriters
that:
(a) A registration statement on Form S-3 (Registration No. 33- ),
including a form of preliminary prospectus, relating to the Shares has been
filed by the Company pursuant to the Securities Act of 1933, as amended
(the "Act"), with the Securities and Exchange Commission (the
"Commission"). The Company may have filed one or more amendments thereto,
including the related preliminary prospectus, each of which has previously
been furnished to you. The Company will next file with the Commission
either (i) prior to effectiveness of such registration statement, a further
amendment to such registration statement (including the form of final
prospectus) or (ii) after effectiveness of such registration statement, a
final prospectus in accordance with Rules 430A and 424(b)(1) or (4) under
the Act. In the case of clause (ii), the Company has included in such
registration statement, as amended at the Effective Time (as defined
below), all information (other than information permitted to be omitted
from the Registration Statement when it becomes effective pursuant to Rule
430A ("Rule 430A Information") required by the Act and the rules and
regulations thereunder (the "Rules and Regulations") to be included in the
final prospectus with respect to the Shares and the offering thereof.
<PAGE>
As filed, such amendment and form of final prospectus, or such final
prospectus, shall contain all Rule 430A Information, together with all
other such required information, with respect to the Shares and the
offering thereof, and, except to the extent you shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to
you prior to the execution of this Agreement or, to the extent not
completed at such time, shall contain only such specific additional
information and other changes (beyond that contained in the latest
Preliminary Prospectus) as the Company has advised you, prior to the
execution of this Agreement, will be included or made therein. For purposes
of this Agreement, "Effective Time" means the time as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, was or is declared effective by the Commission.
"Preliminary Prospectus" means each prospectus included in such
registration statement, or amendments thereof, before it becomes effective
under the Act, any prospectus filed with the Commission by the Company
pursuant to Rule 424(a) and the prospectus included in the Registration
Statement at the Effective Time that omits Rule 430A Information. Such
registration statement, as amended at the Effective Time, including all
Rule 430A Information, if any, is hereinafter referred to as the
"Registration Statement," and the form of prospectus relating to the Shares
and the offering thereof, as first filed with the Commission pursuant to
and in accordance with Rule 424(b) or, if no such filing is required, as
included in the Registration Statement is hereinafter referred to as the
"Prospectus." Any reference herein to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934 (the
"Exchange Act") on or before the Effective Time or the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and any
reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Time, or the date of
any Preliminary Prospectus or the Prospectus, as the case may be, deemed to
be incorporated therein by reference.
(b) At the Effective Time, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date (as defined in Section 4), the Prospectus
(and any supplements thereto) will, comply in all material respects with
the applicable requirements of the Act and the Rules and Regulations; at
the Effective Time, the Registration Statement did not or will not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and, at the Effective Time, the Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence does not
apply to information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for use
therein as specified in Section 9(a) (the "Underwriters' Information").
(c) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission and no proceedings for that
purpose shall have been instituted or threatened by the Commission, and
each Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the Rules and
Regulations, and did not contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; except that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
the Underwriters' Information.
(d) The consolidated financial statements included in the Registration
Statement and Prospectus present fairly the consolidated financial position
of the Company and its consolidated subsidiaries as of
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the dates indicated and the results of their operations, and their cash
flows for the periods specified; such financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved except (i) that
the financial statements for the periods ended June 30, 1995 and 1994 omit
substantially all disclosures required by generally accepted accounting
principles, and (ii) for the change in accounting method effective April 1,
1992 for postretirement benefits other than pensions as set forth in Note
(1) to Consolidated Financial Statements included in the Annual Report on
Form 10-K for the fiscal year ended March 31, 1995; and the supporting
schedules, if any, included in the Registration Statement present fairly
the information required to be stated therein.
(e) The Company and each of its subsidiaries that constitutes a
"significant subsidiary" under Rule 1-02 of Regulation S-X under the Act
(individually, a "Subsidiary" and, collectively, the "Subsidiaries") have
been duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of incorporation
with power and authority to own, lease and operate their properties and
conduct their businesses as described in the Registration Statement and
Prospectus; and each of them is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which it
owns or leases properties or in which the conduct of its business requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse Effect.
For purposes hereof, "Material Adverse Effect" shall mean any effect that
would, individually or in the aggregate, have a material adverse effect on
the condition, financial or otherwise, results of operations, business or
prospects of the Company and its Subsidiaries, taken as a whole.
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and the shares of capital stock outstanding have been duly
authorized, are validly issued, fully paid and nonassessable and conform to
the description thereof contained in the Prospectus.
(g) Neither the Company nor any of its Subsidiaries is in violation of
its or any of their charters or bylaws or other organizational documents or
in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which it or any
of them is a party or by which it or any of them or their properties may be
bound, except any violation or default that would not have a Material
Adverse Effect.
(h) There are no actions, suits or proceedings before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, contemplated or threatened against the Company or
any of its Subsidiaries, or to which any of their respective properties is
subject, which, if adversely determined, would individually or in the
aggregate result in any Material Adverse Effect, or adversely affect the
offering of the Shares in the manner contemplated by the Prospectus.
(i) There are no contracts or other documents which are required to be
described in the Registration Statement or the Prospectus or filed as
exhibits to the Registration Statement by the Act or by the Rules and
Regulations which have not been so described or filed.
(j) This Agreement has been duly authorized, executed and delivered by
the Company.
(k) There are no contracts, agreements or understandings between the
Company and any person other than the Selling Stockholders granting such
person the right to require the Company to file a registration statement
under the Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such securities
under the Registration Statement.
(l) Except as set forth in the Prospectus under the caption
"Underwriting," neither the Company nor any of its officers, directors or
holders of five percent or more of any class of its capital stock or any of
their respective affiliates is a member of, or is associated or affiliated
with a member of, the National Association of Securities Dealers, Inc.
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Section 3. Representations, Warranties and Agreements of the Selling
Stockholders. Each Selling Stockholder, severally and not jointly, represents
and warrants to, and agrees with, the several Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or
on behalf of such Selling Stockholder.
(b) Such Selling Stockholder has the legal right and power to execute and
deliver this Agreement and to sell, transfer and deliver the Shares to be
sold by such Selling Stockholder in the manner provided in this Agreement,
and no such action will contravene any provision of applicable law, or the
certificate of incorporation or bylaws or other organizational document of
such Selling Stockholder, or any agreement or other instrument binding upon
such Selling Stockholder or any administrative or court decree or order,
and no consent, approval, authorization, order, filing, registration or
qualification of or with any court or governmental authority or agency is
required for the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein and therein by such
Selling Stockholder, except such as may be required under the Act and the
Rules and Regulations or state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the Underwriters.
(c) Such Selling Stockholder has, and will deliver to the Underwriters,
good and marketable title to the Shares to be sold by such Selling
Stockholder, free and clear of any Lien.
(d) The Shares to be sold by such Selling Stockholder have been duly
authorized and are validly issued, fully paid and nonassessable.
(e) All information furnished in writing by or on behalf of such Selling
Stockholder for use in the Registration Statement and Prospectus does not,
and on the Closing Date will not, contain any untrue statement of a
material fact or omit to state any material fact necessary to make such
information not misleading.
Section 4. Purchase, Sale and Delivery of Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, each Selling Stockholder, severally but
not jointly, hereby agrees to issue and sell to the Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from such Selling
Stockholder, at a purchase price of $ per Share (the "purchase price per
Share"), the respective number of Firm Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bear the same proportion
to the number of Firm Shares to be sold by such Selling Stockholder as the
number of Firm Shares set forth opposite such Underwriter's name in Schedule II
hereto bears to the total number of Firm Shares.
Each Selling Stockholder hereby agrees, severally and not jointly, to issue
and sell to the Underwriters and, on the basis of the representations,
warranties and agreements herein contained, but subject to the terms and
conditions herein set forth, the Underwriters shall have the right to purchase,
severally and not jointly, from each Selling Stockholder, pursuant to an option
to be exercised in the 30-day period commencing on the date of this Agreement,
up to 200,000 Additional Shares at the purchase price per Share. Additional
Shares may be purchased solely for the purpose of covering over-allotments made
in connection with the offering of the Firm Shares. If any Additional Shares
are to be purchased, each Underwriter agrees, severally and not jointly, to
purchase from such Selling Stockholder that proportion of the total number of
Additional Shares (subject to adjustment by you to eliminate fractions) to be
purchased as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule II hereto bears to the total number of Firm Shares. In
the event that the Underwriters purchase less than all the Additional Shares to
be sold by each Selling Stockholder, the number of Additional Shares to be sold
by each Selling Stockholder shall be, as nearly as practicable, in the same
proportion to each other as are the number of Additional Shares to be sold by
each Selling Stockholder as set forth herein and in Schedule I hereto.
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The Selling Stockholders will deliver the Firm Shares to you for the accounts
of the Underwriters, against payment of the purchase price therefor by one or
more certified or official bank checks payable in New York Clearing House or
other next day funds drawn to the order of the Selling Stockholders. Payment
for the Firm Shares shall be made at the office of at
10:00 a.m., New York City time, on , 1995, or at such other
place or time not later than seven full business days thereafter as you and the
Selling Stockholder determine (the "Initial Closing Date").
The Selling Stockholders will deliver the Additional Shares to be purchased
to you for the accounts of the Underwriters, against payment of the purchase
price therefor by, at the option of the Selling Stockholders, wire transfer of
next day funds, one or more certified or official bank checks payable in New
York Clearing House or other next day funds drawn to the order of the Selling
Stockholders, at the office of on such date and at
such time (the "Option Closing Date") as shall be specified in the notice from
Lazard Freres & Co. LLC to the Selling Stockholders exercising the option to
purchase Additional Shares. The Option Closing Date may be the same as the
Initial Closing Date but shall in no event be earlier than the Initial Closing
Date nor earlier than two nor later than ten business days after the giving of
the notice hereinafter referred to. Such notice may be given, by letter or by
telecopy or other facsimile transmission or by telephone (if subsequently
confirmed in writing), to the Selling Stockholders at any time within 30 days
after the date of this Agreement. The Option Closing Date may be varied by
agreement between the Underwriters and the Selling Stockholders. The Initial
Closing Date and the Option Closing Date are herein collectively referred to as
the "Closing Date."
The certificates for all of the Firm Shares and the Additional Shares so to
be delivered will be in such denominations and registered in such names as you
request two full business days prior to the Initial Closing Date or the Option
Closing Date, as the case may be, and will be made available at the office of
Lazard Freres & Co. LLC, New York, New York, or, upon your request, through the
facilities of The Depository Trust Company, for checking and packaging at least
one full business day prior to the Initial Closing Date or the Option Closing
Date, as the case may be.
The Selling Stockholders agree that, without your prior written consent, they
will not offer, sell, contract to sell, file a registration statement with the
Commission in respect of, or otherwise dispose of, or write or enter into a
cash settled option with respect to, any shares of common stock of the Company
for a period of 90 days after the date of this Agreement, other than the Shares
to be sold hereunder.
Section 5. Offering by Underwriters. After the Registration Statement becomes
effective, the several Underwriters will offer the Shares for sale to the
public on the terms and conditions as set forth in the Prospectus.
Section 6. Covenants of the Company. The Company covenants and agrees with
the several Underwriters that:
(a) If the Effective Time is prior to the execution and delivery of this
Agreement, the Company will file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable, and
with your consent, which shall not be unreasonably withheld, subparagraph
(4)) of Rule 424(b) within the time period prescribed by such rule. The
Company will advise you promptly of any proposal to amend or supplement the
Registration Statement as filed, or the related Prospectus, prior to the
Closing Date, and will not effect such amendment or supplement without your
consent; the Company will also advise you promptly of the effectiveness of
the Registration Statement (if the Effective Time is subsequent to the
execution and delivery of this Agreement), of the filing and effectiveness
of any amendment or supplement to the Registration Statement or the
Prospectus, and of the issuance by the Commission of any stop order in
respect of the Registration Statement or of any order preventing or
suspending the use of any Preliminary Prospectus or any Prospectus relating
to the Shares or the initiation of any proceedings for any such purpose, of
the suspension of the qualification of the Shares for offering or sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose, or of any request by the Commission to amend or supplement
the Registration Statement or Prospectus
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or for additional information and will use its best efforts to prevent the
issuance of any such stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or any prospectus relating to the
Shares or suspending any such qualification and to obtain as soon as
possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the Shares is required
to be delivered under the Act, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact, or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend
or supplement the Prospectus to comply with the Act, the Rules and
Regulations or any other law, the Company promptly will prepare and file
with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance and
will notify you and, upon your request, prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as you
may from time to time reasonably request, of an amended Prospectus or a
supplement to the Prospectus complying with Section 10(a) of the Act which
will correct such statement or omission or effect such compliance.
(c) The Company will make generally available to the Company's security
holders as soon as practicable an earnings statement covering the twelve-
month period ending September 30, 1996 that satisfies the provisions of
Section 11(a) of the Act and the Rules and Regulations (including Rule
158).
(d) The Company will deliver to each of you as many signed and conformed
copies of the Registration Statement (as originally filed) and of each
amendment thereto (including exhibits filed therewith) and copies of each
Preliminary Prospectus as you may reasonably request and will also deliver
to you a conformed copy of the Registration Statement and each amendment
thereto for each of the Underwriters.
(e) The Company will take such action as you may reasonably request, in
cooperation with you, to qualify the Shares for offering and sale under the
applicable securities laws of such states and other jurisdictions of the
United States as you may designate, and will maintain such qualifications
in effect for as long as may be required for the distribution of the
Shares. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Shares have been
qualified as above provided.
(f) The Company agrees that, without your prior written consent, it will
not offer, sell, contract to sell, file a registration statement with the
Commission in respect of, or otherwise dispose of, or write or enter into a
cash settled option with respect to, any shares of common stock of the
Company or any securities convertible into or exercisable or exchangeable
for such common stock for a period of 60 days after the date of this
Agreement, other than (i) the Shares to be sold hereunder, (ii) any shares
of such common stock issued and sold pursuant to existing benefit plans or
existing stock option plans (including restricted stock plans), or the
conversion of a security outstanding on the date hereof and referred to in
the Prospectus, (iii) pursuant to the Company's Rights Agreement, or (iv)
shares issued by the Company in connection with a merger or acquisition,
but only, in the case of (iv), after a 30 day period has elapsed after the
date of this Agreement.
(g) The Company confirms as of the date hereof that it is in compliance
with all provisions of Section 1 of the Laws of Florida, Chapter 92-198, An
Act Relating to Disclosure of Doing Business with Cuba, and the Company
further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba after
the date the Registration Statement becomes or has become effective with
the Commission or with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information reported in
the Prospectus, if any, concerning the Company's business with Cuba or with
any person or affiliate located in Cuba changes in any material way, the
Company will provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
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Section 7. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Shares on the Initial
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein as of
the date hereof and as of the Initial Closing Date with the same force and
effect as if made as of that date, to the accuracy of the statements of the
Company and the Selling Stockholders made in any certificates pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) If the Effective Time is not prior to the execution and delivery of
this Agreement, the Effective Time shall have occurred not later than (i)
6:00 p.m., New York City time, on the date of determination of the offering
price, if such determination occurred at or prior to 3:00 p.m., New York
City time, on such date or (ii) 12:00 noon, New York City time, on the
business day following the day on which the offering price was determined
if such determination occurred after 3:00 p.m., New York City time, on such
date. If the Effective Time is prior to the execution and delivery of this
Agreement, the Company shall have filed the Prospectus with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the Rules and Regulations and in accordance with Section
6(a) hereof. In either case, prior to the Initial Closing Date, no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or threatened by the Commission; and the Company shall have complied with
all requests for additional information on the part of the Commission to
your reasonable satisfaction.
(b) You shall not have advised the Company that the Registration
Statement or Prospectus, or any amendment or supplement thereto, contains
any untrue statement of fact or omits to state any fact which, you have
concluded, is material and in the case of an omission is required to be
stated therein or is necessary to make the statements therein not
misleading.
(c) The Company shall have furnished to the Representatives the opinion
of Cliffe F. Laborde, Senior Vice President and General Counsel of the
Company, dated the Initial Closing Date, to the effect that:
(i) each of the Company and each subsidiary of the Company (specified
in such opinion) that constitutes a "significant subsidiary" under Rule
1-02 of Regulation S-X under the Act (individually, a "Subsidiary" and,
collectively, the "Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification wherein it
owns or leases material properties or conducts material business,
except where any failure to be so qualified and in good standing would
not have a Material Adverse Effect on the Company and its Subsidiaries
taken as a whole;
(ii) all the outstanding shares of capital stock of each Subsidiary
have been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Prospectus,
all outstanding shares of capital stock of the Subsidiaries (other than
directors qualifying shares) are owned by the Company either directly
or through wholly-owned subsidiaries, free and clear of any perfected
security interest and, to the knowledge of such counsel, after due
inquiry, any other security interest, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set forth
in the Prospectus; the capital stock of the Company conforms to the
description thereof contained in the Prospectus; the outstanding shares
of Common Stock (including the Shares being sold hereunder by the
Selling Stockholders) have been duly and validly authorized and issued
and are fully paid and nonassessable; the Shares being sold by the
Selling Stockholders are duly listed and admitted for
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trading on the New York Stock Exchange and the Pacific Stock Exchange;
the certificates for the Shares are in valid and sufficient form; and
the holders of outstanding shares of capital stock of the Company are
not entitled to pre-emptive or other rights to subscribe for the
Shares;
(iv) to the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or
any of its subsidiaries of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Prospectus, and there is no contract or other document of a character
required to be described in the Registration Statement or Prospectus,
or to be filed as an exhibit, which is not described or filed as
required;
(v) such counsel has no reason to believe that at the Effective Time
the Registration Statement contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the Prospectus includes any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(vi) this Agreement has been duly authorized, executed and delivered
by the Company;
(vii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated herein, except such as have been obtained
under the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of
the Shares by the Underwriters and such other approvals (specified in
such opinion) as have been obtained;
(viii) except to the extent that the ownership of more than 25% of
the Company's outstanding Common Stock by persons other than U.S.
citizens would prohibit the Company's U.S. flag vessels from engaging
in the transportation of personnel or merchandise in U.S. coastwise
trade, neither the issue and sale of the Shares, nor the consummation
of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a breach
or violation of, or constitute a default under any law or the charter
or bylaws of the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to which the Company
or any of its subsidiaries is a party or bound or any judgment, order
or decree known to such counsel to be applicable to the Company or any
of its subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Company or any of its subsidiaries; and
(ix) no holders of securities of the Company (other than the Selling
Stockholders) have rights to the registration of such securities under
the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Louisiana, the General Corporation Law of the State of Delaware or the
United States, to the extent he deems proper and specified in such opinion,
upon the opinion of other counsel of good standing whom he believes to be
reliable and who are satisfactory to counsel for the Underwriters and (B)
as to matters of fact, to the extent he deems proper, on certificates of
responsible officers of the Company and public officials. Reference to the
Prospectus in this paragraph (c) includes any supplements thereto.
(d) The Company shall have furnished to the Representatives the opinion
of Jones, Walker, Waechter, Poitevant, Carrere & Denegre, L.L.P., special
counsel for the Company, dated the Initial Closing Date, to the effect
that:
(i) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction in
which it is chartered or organized, with full corporate power and
authority to own its properties and conduct its business as described
in the Prospectus,
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and is duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction which requires such
qualifications wherein it owns or leases material properties or
conducts material business;
(ii) the Company's authorized equity capitalization is as set forth
in the Prospectus; the capital stock of the Company conforms to the
description thereof contained in the Prospectus; the Shares being sold
by the Selling Stockholders are duly listed and admitted for trading on
the New York Stock Exchange and the Pacific Stock Exchange; and the
certificates for the Shares are in valid and sufficient form;
(iii) the Registration Statement has become effective under the Act;
any required filing of the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the best knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and the
Prospectus (other than the financial statements and other financial and
statistical information contained therein, as to which such counsel
need express no opinion) comply as to form in all material respects
with the applicable requirements of the Act and the Rules and
Regulations; and such counsel has no reason to believe that at the
Effective Time the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(iv) this Agreement has been duly authorized, executed and delivered
by the Company; and
(v) neither the issue and sale of the Shares, nor the consummation of
any other of the transactions herein contemplated nor the fulfillment
of the terms hereof will conflict with, result in a breach or violation
of, or constitute a default under the charter or bylaws of the Company
or the terms of any indenture or other agreement or instrument known to
such counsel and to which the Company is a party or by which it is
bound.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of any jurisdiction other than the
State of Louisiana, the General Corporation Law of the State of Delaware,
the State of New York or the United States, to the extent they deem proper
and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to
counsel for the Underwriters, and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Company
and public officials. Reference to this Prospectus in this paragraph (d)
include any supplements thereto.
(e) The Selling Stockholders shall have furnished to the Representatives
the opinion of Cravath, Swaine & Moore, counsel for the Selling
Stockholders, dated the Initial Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered
by such Selling Stockholder, and such Selling Stockholder has full
legal right and authority to sell, transfer and deliver in the manner
provided in this Agreement the Shares being sold by such Selling
Stockholder hereunder;
(ii) assuming the Underwriters acquire the Shares in good faith and
without notice of any adverse claim, the delivery by such Selling
Stockholder to the several Underwriters of certificates for the Shares
being sold hereunder by such Selling Stockholder against payment
therefor as provided herein, will pass good and marketable title to
such Shares to the several Underwriters, free and clear of all liens,
encumbrances, equities and claims whatsoever;
(iii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by such
Selling Stockholder of the transactions contemplated
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herein, except such as may be required under the Act and under the blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Shares by the Underwriters and such other approvals
(specified in such opinion) as have been obtained; and
(iv) none of the sale of the Shares being sold by such Selling
Stockholder hereunder, the consummation of any other of the
transactions contemplated herein by such Selling Stockholder or the
fulfillment of the terms hereof by such Selling Stockholder will
conflict with, result in a breach or violation of, or constitute a
default under any law or the charter, partnership agreement or other
governing instrument or bylaws of such Selling Stockholder or the terms
of any indenture or other agreement or instrument known to such counsel
and to which such Selling Stockholder or any of its subsidiaries is a
party or bound, or any judgment, order or decree known to such counsel
to be applicable to such Selling Stockholder or any of its subsidiaries
of any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over such Selling Stockholder or any
of its subsidiaries.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
General Corporation Law of the State of Delaware, the State of New York or
the United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel (Horace Schow, General Counsel
to The State Board of Administration of Florida as to the laws of the State
of Florida, and Appleby, Spurling & Kempe as to the laws of Bermuda), and
(B) as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Selling Stockholders and public officials.
No opinion need be expressed by any counsel to any Selling Stockholder with
respect to any maritime law or regulation of the United States or the Blue
Sky laws of any jurisdiction.
(f) You shall have received from Vinson & Elkins L.L.P., counsel for the
Underwriters, an opinion, dated the Initial Closing Date, with respect to
such matters as you may reasonably request.
(g) You shall have received from the President or any Senior Vice
President and a principal financial or accounting officer of the Company a
certificate, dated the Initial Closing Date, in which such officers, shall
state (i) such officers have carefully examined the Registration Statement
and the Prospectus, (ii) in their opinion, as of the Effective Time, the
Registration Statement and the Prospectus did not include any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading and since the Effective Time, no event has occurred which
should have been set forth in a supplement or amendment to the Registration
Statement or the Prospectus, (iii) that there has not been, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change in the condition,
financial or otherwise, earnings, business or prospects of the Company and
its subsidiaries considered as a whole, whether or not arising in the
ordinary course of business, (iv) the representations and warranties of the
Company contained in Section 2 are true and correct in all material
respects with the same force and effect as though made on and as of the
Initial Closing Date and the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Initial Closing Date, and (v) to their knowledge no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or
threatened by the Commission.
(h) You shall have received certificates from the Chairman of the Board or
the President of the corporation that is the general partner of Corporate
Advisors, L.P., on behalf of each Selling Stockholder, satisfactory to you
in which such officer, to the best of his knowledge and after reasonable
investigation, shall state that (i) such officer has carefully examined the
Registration Statement and the Prospectus, and (ii) the representations and
warranties of such Selling Stockholder contained in Section 3 are true and
correct with the same force and effect as though made on the Initial
Closing Date and such Selling Stockholder has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Initial Closing Date.
10
<PAGE>
(i) You shall have received from KPMG Peat Marwick LLP, independent
public accountants, two letters, the first dated the date of this Agreement
and the other dated such Initial Closing Date, addressed to the
Underwriters (with conformed copies for each of the Underwriters),
substantially in the form of Annex A hereto with such variations as are
reasonably acceptable to you.
(j) At the Initial Closing Date, counsel for the Underwriters shall have
been furnished with such other documents and opinions as they may
reasonably require.
The several obligations of the Underwriters to purchase the Additional Shares
hereunder are subject to (i) the accuracy of and compliance with the
representations and warranties of the Company and the Selling Stockholders
contained herein on and as of the Option Closing Date, (ii) satisfaction on and
as of the Option Closing Date of the conditions set forth in subsections (a) to
(j) of this Section 7, inclusive (and, for purposes thereof, each reference
therein to the Initial Closing Date shall be deemed to refer to the Option
Closing Date), and (iii) the absence of circumstances on or prior to the Option
Closing Date which would permit termination of this Agreement pursuant to
Section 11.
Section 8. Payment of Expenses. The Company will pay all costs, expenses,
fees, disbursements and taxes incident to (i) the preparation by the Company,
printing, filing and distribution of the Registration Statement (including
financial statements and exhibits), the Prospectus, each Preliminary Prospectus
and all amendments and supplements to any of them prior to or during the period
specified in Section 6(b), (ii) the printing, reproduction and distribution of
this Agreement, and all other underwriting and selling group documents by mail,
telex or other means, (iii) the registration with the Commission of the Shares,
(iv) the registration or qualification of the Shares for offer and sale under
the securities or Blue Sky laws of the several states and the preparation,
printing and distribution of Preliminary and Supplemental Blue Sky Memoranda
and Legal Investment Survey (including the reasonable fees and disbursements of
your counsel relating to the foregoing), (v) filings and clearance with the
National Association of Securities Dealers, Inc. in connection with the
offering, (vi) the fees and expenses of the Registrar and Transfer Agent for
the Shares and its counsel, and (vii) the performance by the Company of its
other obligations under this Agreement. All expenses incurred by the Selling
Stockholders, except for underwriting discount and commissions and the expenses
of counsel for the Selling Stockholders and out-of-pocket expenses of the
Selling Stockholders, shall be paid by the Company.
If the sale of the Shares provided for herein is not consummated because of
the failure to satisfy any condition to the obligations of the Underwriters set
forth in Section 7 hereof, because of any termination pursuant to Section 11
hereof or because of any refusal, failure or inability of the Company or any
Selling Stockholder to perform any agreement herein or comply with any
provision hereof other than by reason of a default by any Underwriter, the
Company shall reimburse you for all of your out-of-pocket expenses incurred in
connection with marketing and preparing for the offering of the Shares,
including the reasonable fees and disbursements of counsel for the
Underwriters.
Section 9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each person
who controls any Underwriter within the meaning of either Section 15 of the Act
or Section 20 of the Exchange Act from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus or in
any Preliminary Prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss,
11
<PAGE>
claim, damage, liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability is caused by any such untrue statement or omission or alleged
untrue statement or omission based upon the following information furnished to
the Company by you in (i) the last paragraph of text on the cover page of the
Prospectus concerning the terms of the offering by the Underwriters, (ii) the
first paragraph of page 2 of the Prospectus concerning over-allotment and
stabilization by the Underwriters and (iii) the first sentence of the first
paragraph of text under the caption "Underwriting" in the Prospectus concerning
the terms of the offering by the Underwriters (all of the foregoing the
"Underwriters' Information"). This indemnity agreement will be in addition to
any liability which the Company may otherwise have to the persons referred to
above in this Section 9(a).
(b) Each Selling Stockholder severally agrees to indemnify and hold harmless
the Company, each of its directors, officers, employees and agents, each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls the Company or any Underwriter within the meaning
of either Section 15 of the Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to each Underwriter provided
in Section 9(a) above, but only with reference to written information furnished
to the Company by such Selling Stockholder specifically for inclusion in the
documents referred to in such indemnity. This indemnity agreement will be in
addition to any liability which any Selling Stockholder may otherwise have to
the persons referred to above in this Section 9(b). The Company and the
Representatives acknowledge that the statements relating to such Selling
Stockholder set forth under the heading "Selling Stockholders" in the body of
any Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of such Selling Stockholder for inclusion
in any Preliminary Prospectus or the Prospectus.
(c) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act and each Selling
Stockholder, to the same extent as the foregoing indemnity from the Company to
each Underwriter provided in Section 9(a) above, but only with reference to the
Underwriters' Information. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have to the persons referred to
above in this Section 9(c).
(d) In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to any of the three
preceding paragraphs, such person (hereinafter called the indemnified party)
shall promptly notify the person against whom such indemnity may be sought
(hereinafter called the indemnifying party) in writing; however, the omission
to so notify the indemnifying party shall relieve the indemnifying party from
liability under the three preceding paragraphs only to the extent prejudiced
thereby. The indemnifying party, shall be entitled to assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others that the
indemnifying party may designate and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such action or proceeding any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel, (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them or (iii) the indemnifying party fails to assume the defense of
such action or proceeding. It is understood that the indemnifying party shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the reasonable fees and expenses of more than
one separate firm (in addition to any local counsel) for all Underwriters and
all persons, if any, who control Underwriters within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, (b) the reasonable
fees and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign the Registration
Statement and each
12
<PAGE>
person, if any, who controls the Company within the meaning of either such
Section, and (c) the reasonable fees and expenses of more than one separate
firm (in addition to any local counsel) for all Selling Stockholders and all
persons, if any, who control Selling Stockholders within the meaning of either
such Section, and that all such fees and expenses shall be reimbursed as they
are incurred. In the case of any such separate firm for the Underwriters and
such control persons of Underwriters, such firm shall be designated in writing
by Lazard Freres & Co. LLC. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company. In the case of any such
separate firm for the Selling Stockholders and such controlling persons of
Selling Stockholders, such firm shall be designated in writing by the general
partner or the persons named as attorneys-in-fact for the Selling Stockholders.
(e) If the indemnification provided for in this Section 9 is insufficient or
unavailable to an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, the Selling Stockholders and the Underwriters, as applicable, from the
offering of the Shares or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law or if the indemnified party shall have
failed to the prejudice of the indemnifying party to give the notice required
by Section 9(d), in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company, the Selling Stockholders and the Underwriters, as applicable,
in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other shall be
deemed to be in the same proportions as the total net proceeds from the
offering (before deducting expenses) received by the Selling Stockholders bear
to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company, the Selling Stockholders and the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company, the Selling Stockholders or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(f) The Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to Section 9(e) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to in the immediately preceding paragraph shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of Section 9(e), in no event shall any
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to Section 9(e) are several in proportion to the respective number of
Firm Shares set forth opposite their names in Schedule II hereto and not joint.
(g) The Company and the Selling Stockholders agree that any claims that the
Company may have against any Selling Stockholder and any claims that any
Selling Stockholder may have against the Company in each case arising out of or
based on any untrue statement or alleged untrue statement in the Registration
Statement
13
<PAGE>
or the Prospectus or any Preliminary Prospectus, or caused by any omission or
alleged omission to state therein a material fact, or otherwise arising out of
or based upon the sale of Shares (each a "Cross-Claim"), shall be subordinated
in right of payment as set forth below to the prior indefeasible payment in
full in cash of any and all claims the Underwriters may have against any of the
Selling Stockholders or the Company, as the case may be, arising out of or
based on any untrue statement or alleged untrue statement in the Registration
Statement or the Prospectus or any Preliminary Prospectus, or caused by any
omission or alleged omission to state therein a material fact, or otherwise
arising out of or based upon the sale of Shares under this Agreement (each an
"Underwriter Claim"). The Company and each Selling Stockholder agree that it
will provide notice to you within three business days of the making by it of
any Cross-Claim, and that such notice shall provide reasonable detail as to the
factual and legal basis for the Cross-Claim and the amount claimed. Thereafter,
no amount may be paid by the Company or any Selling Stockholder in respect of
any such Cross-Claim until the date that is 45 days after the receipt by you of
the foregoing notice; provided, however, that if any Underwriter shall have
prior to such 45th day notified the Company or such Selling Stockholder, as the
case may be, who made such Cross-Claim or against whom such Cross-Claim was
made of any Underwriter Claim that such Underwriter is making or may make
against it, then no amount may be paid by the Company or such Selling
Stockholder with respect to such Cross-Claim without the prior written approval
of each such Underwriter until the prior indefeasible payment in full in cash
of each such Underwriter Claim or until it has been established in a final
adjudication by a court of competent jurisdiction that such Underwriter is not
entitled to receive any payment from the Company or such Selling Stockholder in
respect of such Underwriter Claim. If a payment or distribution is made to the
Company or a Selling Stockholder that because of this Section 9(g) should not
have been made to it, the Company or such Selling Stockholder receiving such
payment or distribution shall hold it in trust for the Underwriters and pay it
over to them or their designee as their interests shall appear.
(h) The Company and the Selling Stockholders agree with the Underwriters that
any indemnity provision of any agreement between the Company on the one hand
and any of the Selling Stockholders on the other shall not be deemed to modify
or supersede any provision of this Section 9.
Section 10. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company or Selling Stockholders
submitted pursuant hereto, including indemnity and contribution agreements,
shall remain operative and in full force and effect, regardless of any
termination of this Agreement, or any investigation, or any statement as to the
results thereof, made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company, its officers or
directors or controlling persons, or by any Selling Stockholder or any person
controlling any Selling Stockholder, and shall survive acceptance of and
payment for Shares hereunder.
Anything herein to the contrary notwithstanding, the indemnity agreement of
the Company in subsection (a) of Section 9 hereof, the representations and
warranties in subsections (b), (c), (d) and (e) of Section 2 and any
representation or warranty as to the accuracy of the Registration Statement or
the Prospectus contained in any certificate furnished by the Company pursuant
to Section 7 hereof, insofar as they may constitute a basis for indemnification
for liabilities (other than payment by the Company of expenses incurred or paid
in the successful defense of any action, suit or proceeding) arising under the
Act, shall not extend to the extent of any interest therein of a controlling
person or partner of any Underwriter who is a director, officer or controlling
person of the Company when the Registration Statement has become effective or
who, with his consent, is named in the Registration Statement as about to
become a director of the Company, except in each case to the extent that an
interest of such character shall have been determined by a court of appropriate
jurisdiction as not against public policy as expressed in the Act. Unless in
the opinion of counsel for the Company the matter has been settled by
controlling precedent, the Company will, if a claim for such indemnification is
asserted, submit to a court of appropriate jurisdiction the question whether
such interest is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
14
<PAGE>
Section 11. Termination. This Agreement may be terminated for any reason at
any time prior to the delivery of and payment for the Shares on the Initial
Closing Date or the Option Closing Date, as the case may be, by Lazard Freres &
Co. LLC upon the giving of written notice of such termination to the Company,
if prior to such time (i) there has been, since the respective dates as of
which information is given in the Registration Statement and the Prospectus,
any material adverse change in the condition, financial or otherwise, earnings,
business or prospects of the Company and its subsidiaries considered as a
whole, whether or not arising in the ordinary course of business, (ii) there
has occurred any outbreak or escalation of hostilities or other calamity or
crisis or material change in existing national or international financial,
political, economic or securities market conditions, the effect of which is
such as to make it, in the judgement of Lazard Freres & Co. LLC, impracticable
or inadvisable to market the Shares in the manner contemplated in the
Prospectus or enforce contracts for the sale of the Shares, or (iii) trading in
the Common Stock of the Company has been suspended by the Commission or the New
York Stock Exchange or the Pacific Stock Exchange, or trading generally on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for securities have been required, by
either of said exchanges or by order of the Commission or any other
governmental authority, or a banking moratorium has been declared by either
Federal or New York authorities. In the event of any such termination, the
provisions of Section 8, the indemnity agreement and contribution provisions
set forth in Section 9, and the provisions of Sections 10 and 15 shall remain
in effect.
Section 12. Default. If, on the Initial Closing Date or the Option Closing
Date, as the case may be, any one or more of the Underwriters shall fail or
refuse to purchase Shares that it or they have agreed to purchase hereunder on
such date, and the aggregate number of Shares which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than one-
tenth of the aggregate number of the Shares to be purchased on such date, the
other Underwriters shall be obligated severally in the proportions that the
number of Firm Shares set forth opposite their respective names in Schedule II
bear to the aggregate number of Firm Shares set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to Section 4 be increased pursuant to this Section 12 by an
amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Initial Closing Date or the Option
Closing Date, as the case may be, any Underwriter or Underwriters shall fail or
refuse to purchase Shares and the aggregate number of Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Shares to be purchased on such date, and arrangements satisfactory to you, the
Company and the Selling Stockholders for the purchase of such Shares are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company or the
Selling Stockholders. In any such case either you or the Company shall have the
right to postpone the Initial Closing Date or the Option Closing Date, as the
case may be, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus
or in any other documents or arrangements may be effected. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
Section 13. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall be
directed to you c/o Lazard Freres & Co. LLC, 30 Rockefeller Plaza, New York,
New York 10020, Attention: Syndicate Department; notices to the Company shall
be directed to it at 1440 Canal Street, New Orleans, Louisiana 70112, facsimile
transmission no. (504) 566-4559, attention of Cliffe F. Laborde, General
Counsel; and notices to the Selling Stockholders shall be directed to them at
their respective addresses, telex numbers and facsimile transmission numbers
set forth in Schedule I hereto.
Section 14. Parties. This Agreement shall inure to the benefit of and be
binding upon the Company, its directors and officers who signed the
Registration Statement, the Underwriters, the Selling Stockholders, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or
15
<PAGE>
mentioned in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. No purchaser
of Shares from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
Section 15. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the law of the State of New York.
Section 16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
If the foregoing, is in accordance with your understanding of our agreement,
please sign this Agreement and return to us six counterparts hereof.
Very truly yours,
TIDEWATER INC.
By _________________________________
William C. O'Malley
Chairman of the Board of
Directors,
President and Chief Executive
Officer
The Selling Stockholders named in
Schedule I hereto, acting severally
BY:CORPORATE ADVISORS, L.P.,
general partner of Corporate
Partners,
L.P. and of Corporate Offshore
Partners,
L.P. and attorney-in-fact of
The State
Board of Administration of
Florida
BY:LFCP Corp., its general partner
By __________________________________
Name:
Title:
16
<PAGE>
Confirmed and Accepted, as of the
date first above written:
LAZARD FRERES & CO. LLC
SALOMON BROTHERS INC
HOWARD, WEIL, LABOUISSE,
FRIEDRICHS INCORPORATED
Acting severally on behalf of themselves
and the several Underwriters named herein.
By __________________________________
Name:
Title:
17
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
MAXIMUM
NUMBER OF
NUMBER OF ADDITIONAL
NAME OF SELLING STOCKHOLDER SHARES SHARES
--------------------------- --------- ----------
<S> <C> <C>
Corporate Partners, L.P. .................................. 1,530,286
Corporate Offshore Partners, L.P. ......................... 109,685
The State Board of Administration of Florida............... 160,029
--------- -------
Total.................................................... 1,800,000 200,000
========= =======
</TABLE>
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
NUMBER OF FIRM
SHARES TO BE
UNDERWRITER PURCHASED
----------- --------------
<S> <C>
Lazard Freres & Co. LLC..........................................
Salomon Brothers Inc.............................................
Howard, Weil, Labouisse, Friedrichs Incorporated.................
[Names of other Underwriters]....................................
========
</TABLE>
<PAGE>
EXHIBIT 5
September 1, 1995
Tidewater Inc.
1440 Canal Street
New Orleans, Louisiana 70112
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 you
with the Securities and Exchange Commission (the "Commission") on the date
hereof with respect to the offer by the Selling Stockholders, as described
therein, of up to 2,000,000 shares of Common Stock, $.10 par value per share
(the "Shares"). In so acting, we have examined original, or photostatic or
certified copies, of such records of the Company, certificates of officers of
the Company 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, we are of the opinion that the Shares have been
duly authorized and validly issued and are fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to us in the prospectus 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.
Very truly yours,
/s/ Jones, Walker, Waechter,
Poitevent, Carrere & Denegre,
L.L.P.
Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
<PAGE>
EXHIBIT 15
Tidewater Inc.
New Orleans, Louisiana
Gentlemen:
Re: Registration Statement on Form S-3
With respect to the subject registration statement, we acknowledge our
awareness of the use therein of our report dated July 19, 1995 related to our
review of interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such report is not
considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the
meaning of sections 7 and 11 of the Act.
Very truly yours,
/s/ KPMG PEAT MARWICK LLP
KPMG Peat Marwick LLP
New Orleans, Louisiana
September 1, 1995
<PAGE>
EXHIBIT 23.1
ACCOUNTANTS' CONSENT
The Board of Directors and
Stockholders of Tidewater Inc.:
We consent to the use of our report dated May 1, 1995 on the consolidated
financial statements of Tidewater Inc. and subsidiaries as of March 31, 1995
and 1994, and for each of the years in the three-year period then ended
incorporated herein by reference and to the references to our firm under the
headings "Selected Financial Data" and "Experts" in the prospectus. Our report
refers to a change in the method of accounting for postretirement benefits
other than pensions in fiscal 1993.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
New Orleans, Louisiana
September 1, 1995
