EXHIBIT 1.1
EXECUTION COPY
$200,000,000
SEACOR SMIT INC.
57/8% SENIOR NOTES DUE OCTOBER 1, 2012
UNDERWRITING AGREEMENT
----------------------
September 20, 2002
XXXXXX XXXXXXX & CO. INCORPORATED
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Ladies and Gentlemen:
1. Introductory. SEACOR SMIT Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell $200,000,000 aggregate principal amount
of its 57/8% Senior Notes Due October 1, 2012 (the "OFFERED SECURITIES") to be
issued under a first supplemental indenture, to be dated as of September 27,
2002 (the "FIRST SUPPLEMENTAL INDENTURE"), to the indenture relating to senior
debt securities, dated as of January 10, 2001, between the Company and U.S. Bank
National Association, as Trustee (as amended and supplemented by the First
Supplemental Indenture, the "INDENTURE"). The Company hereby agrees with Xxxxxx
Xxxxxxx & Co. Incorporated (the "UNDERWRITER") as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriter that:
(a) A registration statement (No. 333-53326), including a prospectus,
relating to the Offered Securities has been filed with the Securities and
Exchange Commission (the "COMMISSION"), and such registration statement, as
amended by Amendment No. 1 thereto, has become effective under the Securities
Act of 1933 (the "ACT"). Such registration statement, as amended at the time of
this Agreement, is hereinafter referred to as the "REGISTRATION STATEMENT", and
the prospectus included in such Registration Statement, as supplemented to
reflect the terms of the Offered Securities and the terms of the offering
thereof, as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("RULE 424(B)") under the Act, including all material incorporated
by reference therein, is hereinafter referred to as the "PROSPECTUS". No
document has been or will be prepared or distributed in reliance on Rule 434
under the Act.
(b) On its effective date, the Registration Statement conformed in
all material respects to the requirements of the Act, the Trust Indenture Act of
1939 (the "TRUST INDENTURE ACT") and the rules and regulations of the Commission
(the "RULES AND Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; and on the date
hereof, the Registration Statement and the Prospectus will conform in all
material respects to the requirements of the Act, the Trust Indenture Act and
the Rules and Regulations, and neither of such documents will include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances in which they were made) not
misleading, except that the foregoing does not apply to statements in or
omissions from any of such documents based upon written information furnished to
the Company by the Underwriter specifically for use therein, it being understood
and agreed that the only such information is that described as such in Section
7(b) hereof. The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects with the requirements of the Act or the
Securities Exchange Act of 1934 (the "EXCHANGE ACT"), as applicable, and the
Rules and Regulations.
(c) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; the Company has been duly qualified as
a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification (if the concept of
good standing is recognized in such other jurisdiction), except where the
failure to be so qualified would not have a material adverse effect on the
general affairs, prospects, management, financial position, stockholders' equity
or result of operations of the Company and its subsidiaries, taken as a whole (a
"MATERIAL ADVERSE EFFECT"); each active subsidiary of the Company (each, a
"SUBSIDIARY") has been duly incorporated or organized, as the case may be, and
is validly existing as a corporation or limited liability company, as the case
may be, in good standing under the laws of its jurisdiction of incorporation or
organization, as the case may be (if the concept of good standing is recognized
in such Subsidiary's jurisdiction of incorporation or organization), with power
and authority to own its properties and conduct its business as described in the
Prospectus; and each Subsidiary has been duly qualified as a foreign corporation
(or other entity) for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification (if the concept of
good standing is recognized in such other jurisdiction), except where the
failure to be so qualified would not have a Material Adverse Effect.
(d) All of the outstanding shares of capital stock of the Company
have been validly authorized and issued, are fully paid and non-assessable and
conform in all material respects to the description of the capital stock of the
Company incorporated by reference in the Prospectus; and all of the outstanding
shares of capital stock or limited liability company interests, as the case may
be, of each Subsidiary have been validly authorized and issued, are fully paid
and non-assessable and (except for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(e) The Indenture has been duly authorized and has been duly
qualified under the Trust Indenture Act with respect to the Offered Securities
registered thereby; the Offered Securities have been duly authorized; and when
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the Offered Securities are delivered and paid for pursuant to this Agreement on
the Closing Date (as defined below), the Indenture will have been duly executed
and delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the description thereof
contained in the Prospectus and the Indenture and such Offered Securities will
constitute valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
(f) There are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against the Company
or the Underwriter for a brokerage commission, finder's fee or other like
payment in connection with the Offered Securities.
(g) The execution, delivery and performance of the Indenture and this
Agreement, and the issuance and sale of the Offered Securities, compliance with
the terms and provisions thereof and hereof and the consummation by the Company
of the transactions herein contemplated will not conflict with nor result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement,
stockholders' agreement or other agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound or to which any of the property or assets of the Company
or any of its Subsidiaries is subject, nor will such action result in any
violation of the provisions of the Restated Certificate of Incorporation, as
amended, or the Amended and Restated By-laws of the Company or the charter or
by-laws (or similar governing document) of any Subsidiary or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties; and no consent, approval, authorization, order, filing, registration
or qualification of or with any such court, governmental agency or body is
required for the issuance and sale of the Offered Securities by the Company or
the consummation by the Company of the transactions contemplated by this
Agreement, except such as have been obtained and made under the Act and the
Trust Indenture Act and such as may be required under state securities or Blue
Sky laws. The Company has full power and authority to authorize, issue and sell
the Offered Securities as contemplated by this Agreement.
(h) This Agreement has been duly authorized, executed and delivered
by the Company.
(i) Except as disclosed in the Prospectus and except as would not be
reasonably likely to have a Material Adverse Effect, the Company and its
Subsidiaries have good title to all real properties and all other properties and
assets owned by them, in each case free from liens, encumbrances and defects
that would materially affect the value thereof or materially interfere with the
use made or to be made thereof by them; and except as disclosed in the
Prospectus, the Company and its Subsidiaries hold any leased real or personal
property under valid and enforceable leases with no exceptions that would
materially interfere with the use made or to be made thereof by them.
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(j) The Company and its Subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary
to conduct the business now operated by them, or presently employed by them, and
have not received any notice of infringement of, or conflict with, asserted
rights of others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its Subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(k) Except as disclosed in the Prospectus, neither the Company nor
any of its Subsidiaries is in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment or
human exposure to hazardous or toxic substances (collectively, "ENVIRONMENTAL
LAWS"), owns or operates any real property contaminated with any substance that
is subject to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any claim
relating to any environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation that might lead to such a
claim.
(l) Except as disclosed in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its Subsidiaries
is a party or of which any property of the Company or any of its Subsidiaries is
the subject that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material Adverse
Effect or would materially and adversely affect the ability of the Company to
perform its obligations under the Indenture or this Agreement; and, to the best
of the Company's knowledge, no such proceedings are threatened by governmental
authorities or threatened by others.
(m) The financial statements included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the financial
position of the Company and its consolidated subsidiaries as of the dates shown
and their results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a consistent
basis, and comply as to form with the applicable accounting requirements under
the Act and the Exchange Act and the related Rules and Regulations of the
Commission; and the schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be stated
therein.
(n) Neither the Company nor any of its Subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth in or contemplated by the
Prospectus; and, since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any material
change in the capital stock or long-term debt of the Company or any of its
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subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as set forth
in or contemplated by the Prospectus and, except as disclosed in or contemplated
by the Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(o) The Company is not and, upon the issuance of the Offered
Securities and the application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in the Investment
Company Act of 1940.
(p) The Company is a citizen of the United States within the meaning
of Section 2 of the Shipping Act of 1916, as amended (the "SHIPPING ACT") and is
qualified to engage in the coastwise trade of the United States; the issuance
and sale of the Offered Securities by the Company and the compliance by the
Company with all of the provisions of this Agreement and the consummation of the
transactions herein contemplated will not cause the Company to cease to be a
citizen of the United States within the meaning of Section 2 of the Shipping Act
or cause the Company to cease to be qualified to engage in the coastwise trade
of the United States.
(q) The Company and its Subsidiaries hold all licenses, consents and
approvals required by, and are in compliance with, all regulations of state,
Federal and foreign governmental authorities that regulate the conduct of the
business of the Company and its Subsidiaries, except where the failure to hold
any such license, consent or approval or to be in compliance with any such
regulation would not have a Material Adverse Effect.
(r) National Response Corporation ("NRC") has been designated an Oil
Spill Removal Organization by the U.S. Coast Guard pursuant to the Oil Pollution
Act of 1990.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Company, at a
purchase price of 98.189% of the principal amount thereof plus accrued interest
from September 27, 2002 to the Closing Date (as hereinafter defined), the
$200,000,000 aggregate principal amount of Offered Securities.
The Company will deliver, against payment of the purchase price, the
Offered Securities in the form of one or more permanent global Securities in
definitive form (the "GLOBAL SECURITIES") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent global Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Prospectus. Payment for the Offered Securities
shall be made by the Underwriter in Federal (same day) funds by official bank
check or checks or wire transfer to an account at a bank acceptable to the
Underwriter drawn to the order of the Company at the office of Xxxxxx & Xxxxxx
L.L.P., New York, New York, at 10:00 A.M. (New York time) on September 27, 2002,
or at such other time not later than seven full business days thereafter as the
Underwriter and the Company determine, such time being herein referred to as the
"CLOSING DATE", against delivery to the Trustee as custodian for DTC of the
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Global Securities representing all of the Offered Securities. The Global
Securities will be made available for checking at the above office of Xxxxxx &
Xxxxxx L.L.P. at least 24 hours prior to the Closing Date.
4. Offering by the Underwriter. It is understood that the Underwriter
proposes to offer the Offered Securities for sale to the public as set forth in
the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
Underwriter that:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with subparagraph (4) or (5) (as consented to by the
Underwriter) of Rule 424(b) not later than the second business day following the
execution and delivery of this Agreement). The Company will advise the
Underwriter promptly of any such filing pursuant to Rule 424(b).
(b) The Company will advise the Underwriter promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus and will
afford the Underwriter a reasonable opportunity to comment on any such proposed
amendment or supplement and will not effect such amendment or supplementation
without the Underwriter's consent, which consent shall not be unreasonably
withheld; and the Company will also advise the Underwriter promptly of the
filing of any amendment or supplement of the Registration Statement or the
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or any part thereof and
will use its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with sales by
the Underwriter or any dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Act, the Company will promptly notify the Underwriter of such
event and will promptly prepare and file with the Commission, at its own
expense, an amendment or supplement that will correct such statement or omission
or an amendment that will effect such compliance. Neither the Underwriter's
consent to, nor the Underwriter's delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 6
hereof.
(d) As soon as practicable after the date of this Agreement, the
Company will make generally available to its securityholders an earnings
statement covering a period of at least 12 months beginning after the later of
(i) the effective date of the Registration Statement, (ii) the effective date of
the most recent post-effective amendment to the Registration Statement to become
effective prior to the date hereof and (iii) the date of the Company's most
recent Annual Report on Form 10-K filed with the Commission prior to the date
hereof, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to counsel to the Underwriter copies of
the Registration Statement in the form it became effective (one of which will be
signed) and of all amendments thereto, and, so long as a prospectus relating to
the Offered Securities is required to be delivered under the Act in connection
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with sales by the Underwriter or any dealer, the Prospectus and all amendments
and supplements to such documents, in each case in such quantities as the
Underwriter has requested. The Prospectus shall be so furnished on or prior to
3:00 P.M., New York time, on the business day following the execution and
delivery of this Agreement. All other documents shall be so furnished as soon as
available. The Company will pay the expenses of printing and distributing to the
Underwriter all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as the Underwriter designates and will
continue such qualifications in effect so long as required for the distribution
of the Offered Securities; provided, however, that the Company shall not be
required in connection therewith to qualify as a foreign corporation in any
jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other than
as to matters and transactions relating to the Prospectus or the Registration
Statement or the offering or sale of the Offered Securities, in any jurisdiction
in which it is not now so subject.
(g) During the period of two years hereafter, the Company will
furnish to the Underwriter, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, for any filing fees and other expenses
(including fees and disbursements of counsel) incurred in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as the Underwriter designates and the printing of memoranda
relating thereto and for expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and supplements
thereto) to the Underwriter.
(i) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to United States
dollar-denominated debt securities issued or guaranteed by the Company and
having a maturity of more than one year from the date of issue, or publicly
disclose the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of the Underwriter for a period of 90
days after the date of the initial public offering of the Offered Securities.
6. Conditions of the Obligations of the Underwriter. The obligations
of the Underwriter to purchase and pay for the Offered Securities on the Closing
Date will be subject to the accuracy of the representations and warranties on
the part of the Company contained herein, to the accuracy of the statements of
Company officers made in any certificate pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) On or prior to the date of this Agreement, the Underwriter shall
have received a letter, dated the date of delivery thereof, in form and
substance satisfactory to the Underwriter, of Ernst & Young LLP to the effect
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specified by the Underwriter and confirming that they are independent public
accountants within the meaning of the Act and the applicable published Rules and
Regulations thereunder.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this Agreement.
Prior to the Closing Date, no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Company or the Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken as one
enterprise that, in the judgment of the Underwriter, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as would, in
the judgment of the Underwriter, be likely to prejudice materially the success
of the proposed issue, sale or distribution of the Offered Securities, whether
in the primary market or in respect of dealings in the secondary market; (iv)
any material suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (v) any banking
moratorium declared by U.S. Federal or New York authorities; (vi) any major
disruption of settlements of securities or clearance services in the United
States; or (vii) any attack on, outbreak or escalation of hostilities or act of
terrorism involving the United States, any declaration of war by Congress or any
other national or international calamity or emergency if, in the judgment of the
Underwriter, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Offered Securities.
(d) The Underwriter shall have received an opinion, dated the Closing
Date, of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to the effect
that:
(i) Each of the Company and its Subsidiaries listed on Exhibit
A to this letter that is organized under the laws of the State
of Delaware (each a "Delaware Subsidiary") is a corporation or
limited liability company, as the case may be, validly
existing and in good standing under the laws of the State of
Delaware, and has all requisite corporate or limited liability
company, as the case may be, power and authority to own, lease
and operate its properties and to carry on its business as
described in the Prospectus. Each of the Company and the
Delaware Subsidiaries is duly qualified to transact business
and is in good standing as a foreign corporation or limited
liability company, as the case may be, in each jurisdiction in
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which the conduct of its business or the ownership of its
properties requires such qualification, except where the
failure to have such qualification would not have a Material
Adverse Effect.
(ii) All of the outstanding shares of capital stock or limited
liability company interests, as the case may be, of each
Delaware Subsidiary are owned of record by the Company or a
subsidiary of the Company. Such shares of capital stock are
duly authorized, validly issued, fully paid and
non-assessable. To such counsel's knowledge, such shares and
limited liability company interests are also owned
beneficially by the Company and are free and clear of all
adverse claims, limitations on voting rights, options and
other encumbrances.
(iii) The Company has all requisite corporate power and
authority to execute and deliver the Indenture and to perform
its obligations thereunder. The execution, delivery and
performance of the Indenture by the Company have been duly
authorized by all necessary corporate action on the part of
the Company. The Indenture has been duly and validly executed
and delivered by the Company, has been duly qualified under
the Trust Indenture Act and (assuming its due authorization,
execution and delivery by the Trustee) constitutes the legal,
valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(iv) The Company has all requisite corporate power and
authority to execute and deliver the Offered Securities and to
perform its obligations thereunder. The execution, delivery
and performance of the Offered Securities by the Company have
been duly authorized by all necessary corporate action on the
part of the Company. The Offered Securities, when executed and
authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriter
pursuant to this Agreement, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of
the Indenture, enforceable against the Company in accordance
with their terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and similar laws affecting creditors' rights and remedies
generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in
equity).
(v) The Company is not, and, after giving effect to the
offering and sale of the Offered Securities and the
application of the proceeds therefrom as described in the
Prospectus, will not be, an "investment company," as defined
in the Investment Company Act of 1940, as amended.
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(vi) No consent, approval, waiver, license or authorization or
other action by or filing with, any New York, Delaware or
federal governmental authority is required for the execution
and delivery by the Company of the this Agreement, the
Indenture or the Offered Securities, the consummation by the
Company of the transactions contemplated thereby or the
performance by the Company of its obligations thereunder,
except those already obtained and except such as may be
required under securities or blue sky laws of any state or
foreign jurisdiction or under any maritime, admiralty and
related laws, rules and regulations, as to which such counsel
expresses no opinion.
(vii) The execution and delivery by the Company of this
Agreement, the Indenture and the Offered Securities, the
performance by the Company of its obligations thereunder and
the consummation of any other of the transactions contemplated
thereby, including the issuance and sale of the Offered
Securities, will not conflict with, constitute a default under
or violate (i) any of the terms, conditions or provisions of
the Restated Certificate of Incorporation or Amended and
Restated By-Laws of the Company, each as amended to the date
hereof, (ii) any of the terms, conditions or provisions of any
other document, agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which they are
bound which is listed as an exhibit on the Company's Form 10-K
for the year ended December 31, 2001, as filed with the
Commission, (iii) New York, Delaware or federal law or
regulation (other than state securities or blue sky laws,
maritime, admiralty and related laws, rules and regulations,
as to which such counsel expresses no opinion) or (iv) any
judgment, writ, injunction, decree, order or ruling known to
us of any court or governmental authority binding on the
Company or any of its Subsidiaries (other than public or
governmental authorities having jurisdiction over maritime,
admiralty or related matters or who enforce or interpret
maritime or admiralty laws or promulgate any regulations as to
such matters, as to which such counsel expresses no opinion).
(viii) The Company has all requisite corporate power and
authority to execute and deliver this Agreement. The execution
and delivery of this Agreement by the Company have been duly
authorized by all necessary corporate action on the part of
the Company. This Agreement has been duly and validly executed
and delivered by the Company.
(ix) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened to which the
Company or any Subsidiary is a party or to which any of the
properties of the Company or any Subsidiary is subject that
are required to be described in the Registration Statement or
Prospectus and are not so described. To such counsel's
knowledge, there are no contracts or other documents that are
required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration
Statement that are not so described or filed as required.
(x) The Registration Statement has become effective under the
Act, and there is no stop order of which we are aware
suspending the effectiveness of the Registration Statement. To
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such counsel's knowledge, no proceedings therefor have been
initiated or threatened by the Commission, and any required
filing of the Prospectus and any supplement thereto pursuant
to Rule 424(b) under the Act has been made in the manner and
within the time period required by such Rule.
(xi) The Registration Statement, the Prospectus and the
documents incorporated therein by reference (it being
understood that such counsel expresses no view with respect to
the financial statements and related notes, the financial
statement schedules and other financial and accounting data
included or incorporated by reference in the Registration
Statement or Prospectus), when they became effective or were
filed with the Commission, complied as to form in all material
respects with the requirements of the Act or the Exchange Act,
as the case may be, and the rules regulations thereunder.
(xii) The statements in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings and
other documents, in each case insofar as such descriptions
constitute summaries of the legal matters, documents or
proceedings referred to therein (other than statements
relating to maritime, admiralty or related matters, as to
which such counsel expresses no opinion), fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein in all material respects (it being
understood that such counsel expresses no view with respect to
the financial statements and related notes, the financial
statement schedules and other financial and accounting data
included or incorporated by reference in the Registration
Statement or Prospectus).
In addition, such counsel shall state that it has
participated in conferences with directors, officers and other
representatives of the Company, representatives of the independent
public accountants of the Company, representatives of the Underwriter
and representatives of counsel for the Underwriter, at which
conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed, and, although such
counsel has not independently verified and is not passing upon and
assumes no responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement and the
Prospectus (except to the extent specified in paragraph (xii) above),
no facts have come to such counsel's attention which lead it to
believe that the Registration Statement, on the effective date
thereof, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus,
on the date thereof or on the date hereof, contained or contains an
untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel expresses no view with respect to the
financial statements and related notes, the financial statement
schedules and other financial and accounting data included or
incorporated by reference in the Registration Statement or
Prospectus).
11
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than New York, the District of Columbia or the United States, to the
extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be
reliable and who are satisfactory to counsel for the Purchaser and
(B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public
officials. References to the Prospectus in this paragraph (d) include
any supplements.
(e) The Underwriter shall have received an opinion, dated the Closing
Date, of Louisiana counsel for the Company, in form and substance satisfactory
to the Underwriter on such matters as the Underwriter shall require.
(f) On the Closing Date, the Company shall have furnished to the
Underwriter the opinion of Xxxxx X. Gran, General Counsel of the Company, dated
the date of delivery thereof, to the effect that:
(i) the issue and sale of the Offered Securities being
delivered by the Company and the compliance by the Company
with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not
conflict with, or violate or constitute a default under, (i)
any U.S. Federal maritime or admiralty law or regulation, or
(ii) any judgment, writ, injunction, decree or order binding
on the Company or any of its subsidiaries or any of their
properties of which such counsel is aware of any U.S. Federal
court or governmental authority having jurisdiction over any
maritime or admiralty matters or who enforce or interpret any
maritime or admiralty laws or promulgate any regulations as to
such matters;
(ii) no consent, approval, waiver, license or other
authorization by or filing with any U.S. Federal maritime or
admiralty governmental authority is required for the issue and
sale of the Offered Securities by the Company or the
consummation by the Company of the transactions contemplated
herein; and
(iii) the statements in the Form 10-K incorporated by
reference in the Prospectus under the captions "Business --
Offshore Marine Services -- Government Regulations -- Domestic
Regulation" and " -- Foreign Regulation" fairly identify the
domestic governmental and international maritime regulation to
which the Company is subject.
(g) The Underwriter shall have received from Xxxxxx & Xxxxxx L.L.P.,
counsel for the Underwriter, such opinion or opinions, dated the Closing Date,
with respect to the incorporation of the Company, the validity of the Offered
Securities delivered on the Closing Date, the Registration Statement, the
Prospectus and other related matters as the Underwriter may require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(h) The Underwriter shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that the
12
representations and warranties of the Company in this Agreement are true and
correct; 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
Closing Date; no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; and, subsequent to the
respective dates of the most recent financial statements in the Prospectus,
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(i) The Underwriter shall have received a letter, dated the Closing
Date, of Ernst & Young LLP that meets the requirements of subsection (a) of this
Section, except that the specified date referred to in such subsection will be a
date not more than three days prior to the Closing Date for the purposes of this
subsection.
The Company will furnish the Underwriter with such conformed copies of such
opinions, certificates, letters and documents as the Underwriter reasonably
requests. The Underwriter may waive compliance with any conditions to the
obligations hereunder.
7. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless the Underwriter, its partners, directors and officers and each
person, if any, who controls the Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which the Underwriter may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Underwriter for any
legal or other expenses reasonably incurred by the Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such documents
in reliance upon and in conformity with written information furnished to the
Company by the Underwriter specifically for use therein, it being understood and
agreed that the only such information furnished by the Underwriter consists of
the information described as such in subsection (b) below.
(b) The Underwriter will indemnify and hold harmless the Company, its
directors and officers and each person, if any who controls the Company within
the meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
13
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by the Underwriter
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred,
it being understood and agreed that the only such information furnished by the
Underwriter consists of the following information in the Prospectus furnished on
behalf of the Underwriter: the concession and reallowance figures appearing in
the third paragraph under the caption "Underwriting;" the second sentence of the
fifth paragraph under the caption "Underwriting;" and the seventh and eighth
paragraphs under the caption "Underwriting."
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission to so notify the indemnifying party will not relieve
it from any liability that it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriter on the other from the offering
of the Offered Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Underwriter on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriter on the other shall be deemed to be in the same proportion as
14
the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
the Underwriter. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim that is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Offered Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages that the Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Underwriter within the meaning of the Act; and the obligations of the
Underwriter under this Section shall be in addition to any liability which the
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of the Company who
has signed the Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the Underwriter set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of the Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If for any reason
the purchase of the Offered Securities by the Underwriter is not consummated,
the Company shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 5 and the respective obligations of the Company and
the Underwriter pursuant to Section 7 shall remain in effect, and if any Offered
Securities have been purchased hereunder the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the Offered Securities by the Underwriter is not consummated for
any reason other than the occurrence of any event specified in clause (iii),
(iv), (v), (vi) or (vii) of Section 6(c), the Company will reimburse the
Underwriter for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriter, will be mailed, delivered or telegraphed and confirmed
to the Underwriter, x/x Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxx, 000 Xxxxxx, Xxxxx
0000, Xxxxxxx, XX 00000, Attention: Transactions Advisory Group, or, if sent to
15
the Company, will be mailed, delivered or telegraphed and confirmed to it at
1370 Avenue of the Americas, 00xx Xxxxx, Xxx Xxxx, X.X. 00000, Xxxxxxxxx:
General Counsel; provided, however, that any notice to the Underwriter pursuant
to Section 7 will be mailed, delivered or telegraphed and confirmed to the
Underwriter.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS NEGOTIATED, MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
16
If the foregoing is in accordance with the Underwriter's
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the Underwriter in accordance with its terms.
Very truly yours,
SEACOR SMIT INC.
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Vice President,
Chief Financial Officer and Secretary
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the date
first above written.
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Director
17
