SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3 to Amended and Restated Schedule 13D)*
Tidewater Inc.
------------------------------------------------------------------------
(Name of Issuer)
Common Stock, Par Value $.10 Per Share and Associated Rights to Purchase
Shares of Series A Participating Preferred Stock
------------------------------------------------------------------------
(Title of Class of Securities)
886423 10 2
-----------------------------------------------------
(CUSIP Number)
Lester Pollack With a copy to
Corporate Advisors, L.P. Timothy G. Massad
One Rockefeller Plaza Cravath, Swaine & Moore
New York, New York 10020 825 Eighth Avenue
(212) 632-4844 New York, New York 10019
(212) 474-1000
------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
September 12, 1995
----------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D,
and is filing this schedule because of Rule 13d-1(b)(3) or (4), check
the following box [ ].
Check the following box if a fee is being paid with the statement [ ].
(A fee is not required only if the reporting person: (1) has a
previous statement on file reporting beneficial ownership of more than
five percent of the class of securities described in Item 1; and (2)
has filed no amendment subsequent thereto reporting beneficial
ownership of five percent or less of such class.) (See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class
of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
Page 1 of pages
<PAGE>
SCHEDULE 13D
CUSIP No. 886423 10 2 Page 2 of Pages
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Corporate Partners, L.P.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
2 (b) [X]
3 SEC USE ONLY
SOURCE OF FUNDS*
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
5 PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Delaware
7 SOLE VOTING POWER
NUMBER OF -0-
SHARES 8 SHARED VOTING POWER
BENEFICIALLY -0-
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON WITH 10 SHARED DISPOSITIVE POWER
-0-
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11 1,694,365
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES* [ ]
PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
13 3.2%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 886423 10 2 Page 3 of pages
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Corporate Offshore Partners, L.P.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
2 (b) [X]
3 SEC USE ONLY
SOURCE OF FUNDS*
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
5 PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Bermuda
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH -0-
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH -0-
10 SHARED DISPOSITIVE POWER
-0-
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11 121,444
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES* [ ]
PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
13 0.2%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 886423 10 2 Page 4 of pages
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
State Board of Administration of Florida
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
2 (b) [X]
3 SEC USE ONLY
SOURCE OF FUNDS*
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
5 PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Florida
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH -0-
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH -0-
10 SHARED DISPOSITIVE POWER
-0-
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11 177,190
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES* [ ]
PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
13 0.3%
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 886423 10 2 Page 5 of pages
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Corporate Advisors, L.P.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
2 (b) [X]
3 SEC USE ONLY
SOURCE OF FUNDS*
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
5 PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 1,992,999
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH -0-
10 SHARED DISPOSITIVE POWER
1,992,999
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11 1,992,999
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES* [ ]
PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
13 3.7%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 886423 10 2 Page 6 of pages
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
LFCP Corp.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
2 (b) [X]
3 SEC USE ONLY
SOURCE OF FUNDS*
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
5 PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 1,992,999
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH -0-
10 SHARED DISPOSITIVE POWER
1,992,999
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11 1,992,999
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES* [ ]
PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
13 3.7%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
This Amendment No. 3 to the Amended and Restated
Schedule 13D filed on October 27, 1993 (which incorporated
prior Amendments No. 1, 2, 3, 4, 5 and 6 to the Schedule 13D
as originally filed), including the statement attached
thereto (the "Statement"), is filed on behalf of Corporate
Partners, L.P., Corporate Offshore Partners, L.P., State
Board of Administration of Florida, Corporate Advisors, L.P.
and LFCP Corp. Capitalized terms used herein and not defined
herein shall have the meaning assigned to such terms in the
Statement.
Item 4. Purpose of Transaction.
Item 4 of the Statement is hereby amended by
adding the following paragraphs after the sixth paragraph of
such Item 4 (as previously amended):
On September 7, 1995, Tidewater and the Purchasers
entered into an Underwriting Agreement (the
"Underwriting Agreement"), which provided for the
purchase by the underwriters named therein (the
"Underwriters") of 1,530,286 shares of Tidewater Common
Stock from Corporate Partners, 109,685 shares from
Corporate Offshore Partners and 160,029 shares from the
State Board (an aggregate of 1,800,000 shares for the
three Purchasers). In addition, the Purchasers granted
the Underwriters under the Underwriting Agreement a 30-
day over-allotment option to buy an additional 200,000
shares from the Purchasers, of which 170,032 shares
would be sold by Corporate Partners, 12,187 shares
would be sold by Corporate Offshore Partners and 17,781
shares would be sold by the State Board.
On September 12, 1995, Tidewater and the Purchaser
consummated the transactions contemplated by the
Underwriting Agreement. Pursuant thereto, the
Underwriters purchased 1,530,286 shares of Tidewater
Common Stock from Corporate Partners, 109,685 shares
from Corporate Offshore Partners and 160,029 shares
from the State Board (an aggregate of 1,800,000 shares
for the three Purchasers). In addition, the
Underwriters exercised the 30-day over-allotment option
granted to them by the Purchasers to buy an additional
200,000 shares from the Purchasers, of which 170,032
shares were sold by Corporate Partners,
Page 7 of Pages
<PAGE>
12,187 shares were sold by Corporate Offshore Partners
and 17,781 shares were sold by the State Board.
Item 5. Interest In Securities of the Issuer.
Items 5(a) and 5(b) of the Statement are hereby
amended by adding the following paragraph immediately
following the seventh paragraph of such Item 5:
As a result of the consummation of the sale of the
2,000,000 shares of Tidewater Common Stock sold by the
Purchasers pursuant to the Underwriting Agreement, (i)
the number of shares of Tidewater Common Stock owned by
Corporate Partners has been reduced to 1,694,365,
representing 3.2% of the 53,271,255 shares of Tidewater
Common Stock that Tidewater reported in its Quarterly
Report on Form 10-Q for the quarterly period ended June
30, 1995, to be outstanding as of July 21, 1995, (ii)
the number of shares of Tidewater Common Stock owned by
Corporate Offshore Partners has been reduced to
121,444, representing .2% of such outstanding shares,
(iii) the number of shares of Tidewater Common Stock
owned by the State Board has been reduced to 177,190,
representing .3% of such outstanding shares and (iv)
the number of shares of Tidewater Common Stock that may
be deemed to be beneficially owned by Corporate
Advisors and LFCP has been reduced to 1,992,999,
representing 3.7% of such outstanding shares.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the
Issuer.
Item 6 of the Statement is hereby amended by
adding the following paragraphs immediately after the 23rd
paragraph of such Item 6:
On September 7, 1995, Tidewater and the Purchasers
entered into the Underwriting Agreement, which provided
for the purchase by the Underwriters of 1,530,286
shares of Tidewater Common Stock from Corporate
Partners, 109,685 shares from Corporate Offshore
Partners and 160,029 shares from the State Board (an
aggregate of 1,800,000 shares for the three
Purchasers). In addition, the Purchasers granted the
Underwriters under the Underwriting Agreement a 30-day
Page 8 of Pages
<PAGE>
over-allotment option to buy an additional 200,000
shares from the Purchasers, of which 170,032 shares
would be sold by Corporate Partners, 12,187 shares
would be sold by Corporate Offshore Partners and 17,781
shares would be sold by the State Board. Pursuant to
the Underwriting Agreement, the Purchasers have agreed
that, during the period of 90 days following September
7, 1995, they will not without the prior written
consent of the representatives of the Underwriters,
offer, sell, contract to sell, file a registration
statement with the Securities Exchange Commission in
respect of, or otherwise dispose of, or write or enter
into a cash settled option with respect to, any shares
of Tidewater Common Stock other than the shares to be
sold pursuant to the Underwriting Agreement. A copy of
the Underwriting Agreement is attached hereto as
Exhibit 12 and is incorporated herein by reference. The
description of the Underwriting Agreement set forth
herein is qualified in its entirety by reference to the
text thereof.
On September 12, 1995, Tidewater and the
Purchasers consummated the transactions contemplated by
the Underwriting Agreement. Pursuant thereto, the
Underwriters purchased 1,530,286 shares of Tidewater
Common Stock from Corporate Partners, 109,685 shares
from Corporate Offshore Partners and 160,029 shares
from the State Board (an aggregate of 1,800,000 shares
for the three Purchasers). In addition, the
Underwriters exercised the 30-day over-allotment option
granted to them by the Purchasers to buy an additional
200,000 shares from the Purchasers, of which 170,032
shares were sold by Corporate Partners, 12,187 shares
were sold by Corporate Offshore Partners and 17,781
shares were sold by the State Board.
Item 7. Material to be Filed as Exhibits.
Exhibit 12: Underwriting Agreement dated as of
September 7, 1995, among Tidewater
Inc., Corporate Partners, L.P.,
Corporate Offshore Partners, L.P.,
the State Board of Administration
of Florida and the underwriters
named therein.
Page 9 of Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set
forth in this Statement is true, complete and correct.
Date: September 14, 1995
CORPORATE PARTNERS, L.P.
CORPORATE OFFSHORE PARTNERS, L.P.
STATE BOARD OF ADMINISTRATION OF
FLORIDA
by CORPORATE ADVISORS, L.P.,
general partner of Corporate
Partners, L.P. and of
Corporate Offshore
Partners, L.P. and attorney-
in-fact for State Board of
Administration of Florida,
by LFCP CORP.,
its general partner,
by /s/ Jonathan Kagan
-----------------------------
Name: Jonathan Kagan
Title: President
Page 10 of Pages
<PAGE>
EXHIBIT INDEX
Sequential
Exhibit Page
Number Document Number
12 Underwriting Agreement dated 12
as of September 7, 1995,
among Tidewater Inc.,
Corporate Partners, L.P.,
Corporate Offshore Partners,
L.P., the State Board of
Administration of Florida and
the underwriters named
therein.
Page 11 of Pages
<PAGE>
1,800,000 SHARES
TIDEWATER INC.
COMMON STOCK
($.10 PAR VALUE)
UNDERWRITING AGREEMENT
September 7, 1995
Lazard Freres & Co. LLC
Salomon Brothers Inc
Howard, Weil, Labouisse, Friedrichs
Incorporated
c/o Lazard 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, agree 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.
33-62349), 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
<PAGE>
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.
<PAGE>
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 mortgage,
pledge, lien, encumbrance, adverse claim or equity (collectively,
a "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 $25.11 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.
<PAGE>
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 Lazard Freres & Co. LLC, 30 Rockefeller
Plaza, New York, New York 10020, at 10:00 a.m., New York City time, on
September 12, 1995, or at such other place or time not later than
seven full business days thereafter as you and the Selling
Stockholders 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 Lazard Freres & Co. LLC 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,
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
which shall not be unreasonably withheld; 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
<PAGE>
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
of common stock 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.
<PAGE>
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 in
all material respects 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
<PAGE>
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, Poitevent, 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, 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;
<PAGE>
(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;
(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 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
<PAGE>
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 and the Selling Stockholders 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
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 in all material
respects 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 in all material
respects on its part to be performed or satisfied hereunder at or
prior to the Initial Closing Date.
(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.
<PAGE>
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
Selling Stockholder, the directors, officers, employees and agents of
each Selling Stockholder, each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls
any Underwriter or Selling Stockholder 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, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case (x) with
respect to any Selling Stockholder, to the extent that any such loss,
claim, damage or liability is caused by any untrue statement or
omission or alleged untrue statement or omission based upon written
information furnished to the Company by such Selling Stockholder
specifically for inclusion in the documents referred to in such
indemnity and (y) with respect to the Underwriters, 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
<PAGE>
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). Each of the Selling Stockholders, 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 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
<PAGE>
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 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
<PAGE>
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.
(i) Notwithstanding any other provision in this Agreement, the
liability of each Selling Stockholder under the indemnity and
contribution provisions contained in this Section 9 shall be limited
to an amount equal to the net proceeds from the offering (before
deducting expenses) received by such Selling Stockholder.
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.
<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 c/o Corporate Advisors, L.P., One
Rockefeller Plaza, New York, NY 10020.
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
<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 /s/ William C. O'Malley
------------------------
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 /s/ Lester Pollack
------------------------
Name: Lester Pollack
Title: Chairman
<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 /s/ Philip P. Young
----------------------
Name: Philip P. Young
Title: Managing Director
<PAGE>
SCHEDULE I
Maximum Number
Number of of Additional
Name of Selling Stockholder Shares Shares
Corporate Partners, L.P. ................ 1,530,286 170,032
Corporate Offshore Partners, L.P. ....... 109,685 12,187
The State Board of Administration
of Florida............................. 160,029 17,781
Total.................................. 1,800,000 200,000
<PAGE>
SCHEDULE II
Number of Firm
Shares to be
Underwriter Purchased
Lazard Freres & Co. LLC................. 600,000
Salomon Brothers Inc ................... 600,000
Howard, Weil, Labouisse,
Friedrichs Incorporated .............. 600,000
