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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 31, 2001
REGISTRATION NO. 333-54120
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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TORCH OFFSHORE, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 1389 74-2982117
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification No.)
401 WHITNEY AVENUE, SUITE 400
GRETNA, LOUISIANA 70056-2596
(504) 367-7030
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
WILLIAM J. BLACKWELL
401 WHITNEY AVENUE, SUITE 400
GRETNA, LOUISIANA 70056-2596
(504) 367-7030
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
R. JOEL SWANSON MARK W. COFFIN JAMES H. WILSON
BAKER BOTTS L.L.P. ADAMS AND REESE LLP VINSON & ELKINS L.L.P.
910 LOUISIANA ST. 1221 MCKINNEY, 44TH FLOOR 1001 FANNIN ST., SUITE 2300
HOUSTON, TX 77002-4995 HOUSTON, TX 77010 HOUSTON, TX 77002-6760
(713) 229-1234 (713) 652-5151 (713) 758-2222
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after this registration statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than underwriting
discounts and commissions, payable by Torch Offshore, Inc. (the "Company") in
connection with the sale of common stock being registered. All amounts are
estimates except the SEC registration fee and the NASD filing fees.
Securities and Exchange Committee registration fee.......... $ 21,563
NASD filing fee............................................. 8,625
Nasdaq National Market listing fee.......................... 75,625
Legal fees and expenses..................................... 600,000
Accounting fees and expenses................................ 125,000
Blue Sky fees and expenses (including legal fees)........... 25,000
Printing expenses........................................... 175,000
Transfer Agent fees......................................... 20,000
Miscellaneous............................................... 49,187
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Total............................................. $1,100,000
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* To be provided by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is incorporated under the laws of the State of Delaware. Section 145
("Section 145") of the General Corporation Law of the State of Delaware (the
"DGCL") gives a corporation power to 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 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.
Section 145 also gives a corporation power to 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 Delaware 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
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expenses which the Delaware Court of Chancery or such other court shall deem
proper. Section 145 further provides that, to the extent that a present or
former director or officer of a corporation has been successful on the merits or
otherwise in defense of any such action, suit or proceeding, or in defense of
any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
Section 145 also authorizes a 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 him
and incurred by him in any such capacity, arising out of his status as such,
whether or not the corporation would otherwise have the power to indemnify him
under Section 145.
The Company's Certificate of Incorporation and Bylaws provide for the
indemnification of officers and directors to the fullest extent permitted by the
DGCL. The underwriting agreement also provides for the indemnification of the
directors and officers in certain circumstances. The Company has also entered
into indemnification agreements with each of its directors and executive
officers.
The Certificate of Incorporation of the Company provides that a director of the
Company shall not be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL, as the same exists as of the date of the Certificate of Incorporation
or as such provision may be thereafter amended, supplemented or replaced or (iv)
for any transaction from which the director derived an improper personal
benefit.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
The Company has not sold any securities, registered or otherwise, within the
past three years, except for the shares issued in connection with the formation
of the Company on January 11, 2001 in an offering exempt from registration under
Section 4(2) of the Securities Act of 1933, as amended.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS
NUMBER DESCRIPTION
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1.1 Form of Underwriting Agreement
3.1+ Certificate of Incorporation
3.2+ Bylaws
3.3 Certificate of Amendment to Certificate of Incorporation
4.1+ Form of specimen common stock certificate
4.2+ Form of Registration Rights Agreement among the Company and
the stockholders named therein
5.1+ Opinion of Baker Botts L.L.P.
10.1+ Contribution Agreement dated January 15, 2001 among Torch,
Inc., Friends of Lime Rock LP, Riverside Investments LLC and
Torch Offshore, Inc.
10.2+ Torch Offshore, Inc. 2001 Long-Term Incentive Plan
10.3+ Employment Agreement between Torch Offshore, Inc. and Willie
J. Bergeron, Jr., dated January 15, 2001
10.4+ Employment Agreement between Torch Offshore, Inc. and
William J. Blackwell, dated January 15, 2001
10.5+ Employment Agreement between Torch Offshore, Inc. and
Vincent Lecarme, dated January 15, 2001
10.6+ Employment Agreement between Torch Offshore, Inc. and James
J. Mermis, dated January 15, 2001
10.7+ Employment Agreement between Torch Offshore, Inc. and Eric
N. Smith, dated January 15, 2001
10.8+ Employment Agreement between Torch Offshore, Inc. and E. T.
Robinson III, dated January 15, 2001
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NUMBER DESCRIPTION
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10.9+ Form of Indemnification Agreement
10.10+ Vessel Construction Contract by and between Bender
Shipbuilding & Repair Co., Inc. and Torch Deepwater Inc.,
dated March 30, 2000, as amended
10.11 Working Capital Line of Credit Agreement between Regions
Bank and Torch Offshore, L.L.C., as Borrower, dated May 11,
2001
10.12+ Pipelay Services Contract between Union Oil Company of
California and Torch, Inc., a Louisiana corporation, dated
January 4, 2001
10.13+ Co-operation Agreement between Sonsub Inc., a Delaware
corporation, and Torch, Inc., a Louisiana corporation, dated
March 17, 2000
10.14+ Agreement between Torch, Inc. and SAS Gouda B.V, dated March
18, 1998
10.15+ Option to Purchase between Robbye Waldron, as trustee of the
Chapter 7 bankruptcy estate of HBH, Inc. and Torch Offshore
L.L.C., dated March 2, 2001
21.1+ List of subsidiaries of the Company
23.1+ Consent of Arthur Andersen LLP
23.5+ Consent of Baker Botts L.L.P. (contained in Exhibit 5.1
hereto)
24.1+ Powers of Attorney.
+ Previously filed.
(b) FINANCIAL STATEMENT SCHEDULES
All schedules are omitted because the information is inapplicable or is
contained in the Financial Statements or Notes.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
The undersigned Company hereby undertakes to provide to the underwriters at the
closing specified in the underwriting agreement certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
The undersigned Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Gretna,
State of Louisiana, on the 30th day of May, 2001.
TORCH OFFSHORE, INC.
By: /s/ LYLE G. STOCKSTILL
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Name: Lyle G. Stockstill
Title: Chairman of the Board and
Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE
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/s/ LYLE G. STOCKSTILL Chairman of the Board and May 30, 2001
-------------------------------------------------------- Chief Executive Officer
Lyle G. Stockstill (Principal Executive
Officer)
/s/ WILLIAM J. BLACKWELL Chief Financial Officer May 30, 2001
-------------------------------------------------------- and Director (Principal
William J. Blackwell Financial and Accounting
Officer)
/s/ LANA J. HINGLE STOCKSTILL* Senior Vice President -- May 30, 2001
-------------------------------------------------------- Administration and
Lana J. Hingle Stockstill Director
/s/ ERIC N. SMITH* Executive Vice President May 30, 2001
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Eric N. Smith
/s/ CURTIS LEMONS* Director May 30, 2001
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Curtis Lemons
/s/ JOHN REYNOLDS* Director May 30, 2001
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John Reynolds
/s/ KEN WALLACE* Director May 30, 2001
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Ken Wallace
*By: /s/ WILLIAM J. BLACKWELL
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William J. Blackwell
Attorney-in-Fact
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Index to Exhibits
NUMBER DESCRIPTION
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1.1 Form of Underwriting Agreement
3.1+ Certificate of Incorporation
3.2+ Bylaws
3.3 Certificate of Amendment to Certificate of Incorporation
4.1+ Form of specimen common stock certificate
4.2+ Form of Registration Rights Agreement among the Company and
the stockholders named therein
5.1+ Opinion of Baker Botts L.L.P.
10.1+ Contribution Agreement dated January 15, 2001 among Torch,
Inc., Friends of Lime Rock LP, Riverside Investments LLC and
Torch Offshore, Inc.
10.2+ Torch Offshore, Inc. 2001 Long-Term Incentive Plan
10.3+ Employment Agreement between Torch Offshore, Inc. and Willie
J. Bergeron, Jr., dated January 15, 2001
10.4+ Employment Agreement between Torch Offshore, Inc. and
William J. Blackwell, dated January 15, 2001
10.5+ Employment Agreement between Torch Offshore, Inc. and
Vincent Lecarme, dated January 15, 2001
10.6+ Employment Agreement between Torch Offshore, Inc. and James
J. Mermis, dated January 15, 2001
10.7+ Employment Agreement between Torch Offshore, Inc. and Eric
N. Smith, dated January 15, 2001
10.8+ Employment Agreement between Torch Offshore, Inc. and E. T.
Robinson III, dated January 15, 2001
10.9+ Form of Indemnification Agreement
10.10+ Vessel Construction Contract by and between Bender
Shipbuilding & Repair Co., Inc. and Torch Deepwater Inc.,
dated March 30, 2000, as amended
10.11 Working Capital Line of Credit Agreement between Regions
Bank and Torch Offshore, L.L.C., as Borrower, dated May 11,
2001
10.12+ Pipelay Services Contract between Union Oil Company of
California and Torch, Inc., a Louisiana corporation, dated
January 4, 2001
10.13+ Co-operation Agreement between Sonsub Inc., a Delaware
corporation, and Torch, Inc., a Louisiana corporation, dated
March 17, 2000
10.14+ Agreement between Torch, Inc. and SAS Gouda B.V, dated March
18, 1998
10.15+ Option to Purchase between Robbye Waldron, as trustee of the
Chapter 7 bankruptcy estate of HBH, Inc. and Torch Offshore
L.L.C., dated March 2, 2001
21.1+ List of subsidiaries of the Company
23.1+ Consent of Arthur Andersen LLP
23.5+ Consent of Baker Botts L.L.P. (contained in Exhibit 5.1
hereto)
24.1+ Powers of Attorney.
+ Previously filed.
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