As filed with the Securities and Exchange Commission on November 1, 2005
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SEACOR HOLDINGS INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
13-3542736
(I.R.S. Employer Identification No.)
11200 RICHMOND AVENUE, SUITE 400, HOUSTON, TEXAS 77082
(Address of Principal Executive Offices) (Zip Code)
SEACOR NONQUALIFIED DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
RICHARD RYAN
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
SEACOR HOLDINGS INC.
2200 ELLER DRIVE
P.O. BOX 13038
FORT LAUDERDALE, FLORIDA 33316
(Name and Address of Agent For Service)
(212) 307-6633
Telephone Number, Including Area Code, of Agent For Service.
Copies to:
DAVID E. ZELTNER, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Securities to Amount to be Offering Price Aggregate Registration
be Registered Registered (1) Per Share Offering Price (2) Fee (2)
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SEACOR Nonqualified Deferred
Compensation Plan Deferral Obligations (1) $20,000,000 100% $20,000,000 $2,354
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(1) The SEACOR Nonqualified Deferred Compensation Plan Deferral Obligations
are unsecured obligations of SEACOR Holdings Inc. to pay deferred compensation
in the future in accordance with the terms of the SEACOR Nonqualified Deferred
Compensation Plan. In addition, pursuant to Rule 416(c) under the Securities
Act of 1933, as amended, this Registration Statement also relates to an
indeterminate amount of interests to be offered or sold pursuant to the SEACOR
Nonqualified Deferred Compensation Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(h) under the Securities Act of 1933.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission, also referred to in this Registration Statement as the Commission,
by the Registrant (File No. 1-12289) are incorporated herein by reference:
(i) the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 2004;
(ii) Amendment No. 1 to the Registrant's Annual Report for
the fiscal year ended December 31, 2004 filed on Form
10-K/A with the Commission on April 13, 2005;
(iii) the Registrant's Quarterly Reports on Form 10-Q for
the quarterly periods ended June 30, 2005 and March
31, 2005;
(iv) the Registrant's Current Reports on Form 8-K filed
with the Commission on October 28, 2005, October 13,
2005, September 13, 2005, July 1, 2005, June 27,
2005, May 9, 2005, April 22, 2005, March 25, 2005,
March 17, 2005, March 14, 2005, February 9, 2005 and
January 5, 2005; and
(v) the amendments to the Registrant's Current Reports on
Form 8-K/A filed with the Commission on August 8,
2005 and May 9, 2005.
All documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment to this Registration Statement
that indicates that all securities offered have been sold or that deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents. Unless expressly incorporated into this
Registration Statement, a report (or portion thereof) furnished on Form 8-K
shall not be incorporated by reference into this Registration Statement. Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supercedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement. Copies of these documents are not required to be filed with this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
This registration statement covers deferred compensation
obligations, also referred to in this Registration Statement as DCOs, that may
be offered under the SEACOR Nonqualified Deferred Compensation Plan, also
referred to in this Registration Statement as the Deferred Compensation Plan.
The following summary of the DCOs is qualified in its entirety by reference to
the Deferred Compensation Plan.
The DCOs offered under the Deferred Compensation Plan
represent obligations of the Company to pay to participants certain compensation
amounts that the participants have elected to defer and amounts that the
Registrant, in its sole discretion, has determined to contribute. The Deferred
Compensation Plan is intended to allow certain managers and highly compensated
employees whose employment is not subject to the terms of a collective
bargaining agreement and who is a shoreside employee, as well as non-employee
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directors, to defer the payment of current compensation to future years for tax
and financial planning purposes. Subject to the terms and conditions set forth
in the Deferred Compensation Plan, each participating employee may elect to
defer a portion of his or her salary and/or bonus (including restricted stock
units), and such deferred amounts are credited to the participant's account.
Vested amounts in a participant's account in respect of deferred cash salary or
cash bonus will be indexed to one or more deemed investment alternatives chosen
by each participant from a range of such alternatives available under the
Deferred Compensation Plan. Each participant's account will be adjusted to
reflect the investment performance of the selected investment fund(s), including
any interest, appreciation or depreciation.
The DCOs are payable in cash (other than the delivery of
deferred restricted stock units), and, for termination of service (including
death and disability) other than upon retirement, will be paid in a lump sum or,
for termination of service upon retirement, in either a lump sum or in annual
installments over up to ten (10) years or, before termination, beginning in a
specified plan year, as elected by the participant and in accordance with the
Deferred Compensation Plan. In the event of an unforeseeable financial hardship,
the participant may elect to receive some or all of the deferred amounts and
related earnings, subject to approval by the Committee, as provided under the
Deferred Compensation Plan.
The obligation to pay the balance of each participant's
account will be at all times be an unfunded and unsecured obligation of the
Registrant. Benefits are payable solely from the Registrant's general funds and
are subject to the risk of corporate insolvency. The Registrant may, but is not
required to, establish a grantor trust, which may be a rabbi trust, for the
purpose of holding assets in connection with the Deferred Compensation Plan.
Participants will not have any interest in any particular assets of the
Registrant or any such trust by reason of any obligation created under the
Deferred Compensation Plan. A participant's right to the DCOs cannot be
anticipated, alienated, sold, transferred, assigned, pledged or encumbered
except by a written designation of a beneficiary under the terms of the Deferred
Compensation Plan. Any attempt to anticipate, alienate, sell, transfer, assign,
pledge or encumber the DCOs or any bankruptcy of a participant or beneficiary
will result in the termination of such DCO.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters in connection with the issuance and sale
of the securities offered hereby will be passed upon for the Registrant by Alice
N. Gran, Senior Vice President, General Counsel and Secretary of the Registrant.
Ms. Gran is a full-time employee of the Registrant and is entitled to
participate in the Deferred Compensation Plan. Ms. Gran beneficially owns equity
securities of the Registrant with an aggregate value in excess of $50,000.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As more fully described below, Section 145 of the General
Corporation Law of the State of Delaware, also known as the DGCL, permits
Delaware corporations to indemnify each of their present and former directors or
officers under certain circumstances, provided that such persons acted in good
faith and in a manner which they reasonably believed to be in, or not opposed
to, the best interests of the corporation. Article III of our Second Amended and
Restated By-laws provides that we will indemnify, to the fullest extent
permitted by Section 145 of the DGCL, as the same may be amended from time to
time, all persons whom we may indemnify pursuant thereto and in the manner
prescribed thereby.
Specifically, Section 145 of the DGCL provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person acted in good
3
faith and in a manner the person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe the person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which the person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that the person's
conduct was unlawful.
Section 145 of the DGCL also provides that a corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper. Any such indemnification (unless ordered by a court) shall be
made by the corporation only as authorized in the specific case upon a
determination that indemnification of the present or former director, officer,
employee or agent is proper in the circumstances because the person has met the
applicable standard of conduct set forth above.
Section 145 of the DGCL permits a Delaware corporation to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the corporation would have the power to indemnify such person against such
liability. We purchase and maintain such insurance for our directors and
officers.
Section 102(b) of the DGCL enables a Delaware corporation to
include a provision in its certificate of incorporation eliminating or limiting
the personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. Our certificate of
incorporation contains provisions that limit the personal liability of each of
our directors to us and our stockholders for monetary damages for breach of
fiduciary duty as a director. These provisions eliminate personal liability to
the fullest extent permitted by the DGCL.
The foregoing summaries are necessarily subject to the
complete text of the applicable statute, article(s) of our Restated Certificate
of Incorporation, as amended, by-law(s) of our Second Amended and Restated
By-laws, and insurance policy referred to above and are qualified in their
entirety by reference thereto.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
None.
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ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
----------- -----------
4.1 Restated Certificate of Incorporation of SEACOR SMIT Inc.
(incorporated herein by reference to Exhibit 3.1(a) to the
Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1997 and filed with the Commission on
August 14, 1997).
4.2 Certificate of Amendment to the Restated Certificate of
Incorporation of SEACOR SMIT Inc. (incorporated herein by
reference to Exhibit 3.1(b) to the Registrant's Quarterly Report
on Form 10-Q for the fiscal quarter ended June 30, 1997 and
filed with the Commission on August 14, 1997).
4.3 Second Amended and Restated By-laws of SEACOR Holdings Inc.*
4.4 Certificate of Amendment to the Restated Certificate of
Incorporation of SEACOR Holdings Inc. (incorporated herein by
reference to Exhibit 4.4 to the Registrant's Registration
Statement on Form S-8, filed with the Commission on July 15,
2005 (file No. 333-126613)).
5.1 Opinion of Alice N. Gran, Senior Vice President, General Counsel
and Secretary of the Registrant Weil, Gotshal & Manges LLP.*
23.1 Consent of Ernst & Young LLP.*
23.2 Consent of Alice N. Gran (included in the opinion filed as
Exhibit 5.1 to this registration statement).*
24 Power of Attorney (included as part of the signature page to
this Registration Statement and incorporated herein by
reference).*
99.1 SEACOR Nonqualified Deferred Compensation Plan (incorporated
herein by reference to Exhibit 99.1 to the Registrant's Current
Report on Form 8-K filed with the Commission on October 28,
2005).
*Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
5
424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that paragraph (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by the foregoing paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of New York, State of New York, on this 1st day of
November, 2005.
SEACOR HOLDINGS INC.
By: /s/ Richard Ryan
---------------------------------
Name: Richard Ryan
Title: Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Charles Fabrikant, Richard Ryan, Alice
Gran and Dick Fagerstal, or any of them, each acting alone, his or her true and
lawful attorney-in-fact and agent, with full powers of substitution and
resubstitution, for such person and in his or her name, place and stead, in any
and all capacities, in connection with the Registrant's Registration Statement
on Form S-8 under the Securities Act of 1933, including to sign the Registration
Statement and any and all amendments to this Registration Statement, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission and any applicable
securities exchange or securities self-regulatory body, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully, to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities on November 1, 2005.
Signatures Title
---------- -----
/s/ Charles Fabrikant Chairman of the Board of Directors,
----------------------------------- President and Chief Executive Officer
Charles Fabrikant (Principal Executive Officer)
/s/ Richard Ryan Vice President and Chief Financial
----------------------------------- Officer (Principal Financial Officer)
Richard Ryan
/s/ Matthew Cenac Vice President and Chief Accounting
----------------------------------- Officer (Principal Accounting Officer)
Matthew Cenac
/s/ James A.F. Cowderoy Director
-----------------------------------
James A.F. Cowderoy
/s/ Pierre de Demandolx Director
-----------------------------------
Pierre de Demandolx
/s/ Richard M. Fairbanks III Director
-----------------------------------
Richard M. Fairbanks III
/s/ Michael E. Gellert Director
-----------------------------------
Michael E. Gellert
/s/ John C. Hadjipateras Director
-----------------------------------
John C. Hadjipateras
/s/ Oivind Lorentzen Director
-----------------------------------
Oivind Lorentzen
/s/ Andrew R. Morse Director
-----------------------------------
Andrew R. Morse
/s/ Chris Regan Director
-----------------------------------
Chris Regan
/s/ Stephen Stamas Director
-----------------------------------
Stephen Stamas
/s/ Steven A. Webster Director
-----------------------------------
Steven A. Webster
/s/ Steven J. Wisch Director
-----------------------------------
Steven J. Wisch
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
4.1 Restated Certificate of Incorporation of SEACOR SMIT Inc.
(incorporated herein by reference to Exhibit 3.1(a) to the
Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1997 and filed with the Commission on
August 14, 1997).
4.2 Certificate of Amendment to the Restated Certificate of
Incorporation of SEACOR SMIT Inc. (incorporated herein by
reference to Exhibit 3.1(b) to the Registrant's Quarterly Report
on Form 10-Q for the fiscal quarter ended June 30, 1997 and
filed with the Commission on August 14, 1997).
4.3 Second Amended and Restated By-laws of SEACOR Holdings Inc.*
4.4 Certificate of Amendment to the Restated Certificate of
Incorporation of SEACOR Holdings Inc. (incorporated herein by
reference to Exhibit 4.4 to the Registrant's Registration
Statement on Form S-8, filed with the Commission on July 15,
2005 (file No. 333-126613)).
5.1 Opinion of Alice N. Gran, Senior Vice President, General Counsel
and Secretary of the Registrant.*
23.1 Consent of Ernst & Young LLP.*
23.2 Consent of Alice N. Gran (included in the opinion filed as
Exhibit 5.1 to this registration statement).*
24 Power of Attorney (included as part of the signature page to
this Registration Statement and incorporated herein by
reference).*
99.1 SEACOR Nonqualified Deferred Compensation Plan (incorporated
herein by reference to Exhibit 99.1 to the Registrant's Current
Report on Form 8-K filed with the Commission on October 28,
2005).
*Filed herewith.