AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 28, 2003.
REGISTRATION NO. 333-103451
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CAL DIVE INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
MINNESOTA 95-3409686
(State or other jurisdiction of (I.R.S. Employer
incorporation of organization) Identification No.)
400 N. SAM HOUSTON PARKWAY E., SUITE 400
HOUSTON, TEXAS 77060
(281) 618-0400
(Address, including zip code, and telephone number,
including area code, of registrants principal executive offices)
A. WADE PURSELL
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
CAL DIVE INTERNATIONAL, INC.
400 N. SAM HOUSTON PARKWAY E., SUITE 400
HOUSTON, TEXAS 77060
(281) 618-0400
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
COPIES TO:
JAMES LEWIS CONNOR, III ARTHUR H. ROGERS
SENIOR VICE PRESIDENT AND GENERAL COUNSEL FULBRIGHT & JAWORSKI L.L.P.
CAL DIVE INTERNATIONAL, INC. 1301 MCKINNEY STREET
400 N. SAM HOUSTON PARKWAY E., SUITE 400 SUITE 5100
HOUSTON, TEXAS 77060 HOUSTON, TEXAS 77010
(281) 618-0400 (713) 651-5151
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the Effective Date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY
DETERMINE.
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PROSPECTUS
7,486,907 SHARES
COMMON STOCK
(NO PAR VALUE PER SHARE)
CAL DIVE INTERNATIONAL, INC.
400 N. SAM HOUSTON PARKWAY E., SUITE 400
HOUSTON, TEXAS 77060
(281) 618-0400
This prospectus covers the potential resale of up to 7,486,907 shares of
Common Stock of Cal Dive International, Inc., some or all of which could
potentially be issued to Fletcher International, Ltd. (including the entities
and persons described elsewhere in this prospectus, "Fletcher") pursuant to
rights of conversion or redemption, or in payment of quarterly dividends on
shares of preferred stock issued or issuable under the First Amended and
Restated Agreement dated January 17, 2003, but effective as of December 31,
2002, made by and between Cal Dive International, Inc. and Fletcher
International, Ltd. (the "Agreement"), including, but not limited to, 25,000
shares of our Series A-1 Cumulative Convertible Preferred Stock, par value $0.01
per share, issued under the Agreement, and 30,000 shares of Preferred Stock
issuable upon Fletcher's exercise of rights under the Agreement. Some or all of
the Common Stock so issued may be sold from time to time in the market or in
other transactions by Fletcher. Fletcher may sell the shares of Common Stock
described in this prospectus in various ways and at different times, but it is
not required to sell any or all of these shares. We do not know if any of these
shares will ultimately be issued to Fletcher or whether any of them will be sold
pursuant to this prospectus. The price to the public for the shares and the
proceeds to Fletcher at any time will depend upon the terms of such sale. We
will not receive any of the proceeds from the sale of the Common Stock by
Fletcher, but we are bearing some of the expense of registration of the shares.
See "Plan of Distribution" beginning on page 8.
Our Common Stock is listed on the Nasdaq National Market System under the
symbol "CDIS." On April 22, 2003, the last reported sale price of our Common
Stock on the Nasdaq National Market System was $16.32.
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING
ON PAGE 3 FOR A DISCUSSION OF CERTAIN FACTORS THAT YOU SHOULD CONSIDER BEFORE
YOU INVEST IN OUR COMMON STOCK.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------
UNLESS THE CONTEXT OTHERWISE REQUIRES, ALL REFERENCES TO "WE," "US," "OUR
COMPANY" OR "THE COMPANY" IN THIS PROSPECTUS REFER COLLECTIVELY TO CAL DIVE
INTERNATIONAL, INC., A MINNESOTA CORPORATION, AND ITS SUBSIDIARIES.
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The date of this prospectus is April 28, 2003
TABLE OF CONTENTS
PAGE
----
About Cal Dive International, Inc. ......................... 3
Risk Factors................................................ 3
Special Statement Regarding Forward-Looking Statements...... 6
Use of Proceeds............................................. 7
The Selling Shareholder..................................... 7
Plan of Distribution........................................ 8
Description of Capital Stock................................ 10
Incorporation of Documents by Reference..................... 13
Where You Can Find More Information......................... 14
Experts..................................................... 14
Legal Matters............................................... 15
ABOUT CAL DIVE INTERNATIONAL, INC.
We are an energy services company specializing in subsea construction and
well operations as well as providing oil and gas companies with alternatives to
the traditional approaches of equity sharing in offshore properties. We operate
primarily in the Gulf of Mexico, or Gulf, and recently in the North Sea with
services that cover the lifecycle of an offshore oil and gas field. We believe
we have a longstanding reputation for innovation in our subsea construction
techniques, equipment design and methods of partnering with customers. Our
diversified fleet of 23 vessels and 21 remotely operated vehicles (ROVs) and
trencher systems performs services that support drilling, well completion,
intervention, construction and decommissioning projects involving pipelines,
production platforms, risers and subsea production systems. We also have
acquired significant interests in oil and gas properties and related production
facilities as part of our Production Partnering business. Our customers include
major and independent oil and gas producers, pipeline transmission companies and
offshore engineering and construction firms.
RISK FACTORS
There are various risks, described below, any one of which may materially
impact your investment in our company or may in the future, and, in some cases,
already do, materially affect us and our business, financial condition, or
results of operations and could result in a partial or complete loss of your
investment. You should consider carefully these factors with respect to your
investment in our Common Stock. This section includes or refers to certain
forward-looking statements; you should read the explanation of the
qualifications and limitations on such forward-looking statements beginning on
page 6.
OUR BUSINESS IS ADVERSELY AFFECTED BY LOW OIL AND GAS PRICES AND BY THE
CYCLICALITY OF THE OIL AND GAS INDUSTRY.
Our business is substantially dependent upon the condition of the oil and
gas industry and, in particular, the willingness of oil and gas companies to
make capital expenditures for offshore exploration, drilling and production
operations. The level of capital expenditures generally depends on the
prevailing view of future oil and gas prices, which are influenced by numerous
factors affecting the supply and demand for oil and gas, including, but not
limited to:
- Worldwide economic activity,
- Economic and political conditions in the Middle East and other
oil-producing regions,
- Coordination by the Organization of Petroleum Exporting Countries (OPEC),
- The cost of exploring for and producing oil and gas,
- The sale and expiration dates of offshore leases in the United States and
overseas,
- The discovery rate of new oil and gas reserves in offshore areas,
- Technological advances,
- Interest rates and the cost of capital,
- Environmental regulations, and
- Tax policies.
The level of offshore construction activity did not increase despite higher
commodity prices in 2002. We cannot assure you that activity levels will
increase anytime soon. A sustained period of low drilling and production
activity or the return of lower commodity prices would likely have a material
adverse effect on our financial position and results of operations.
3
THE OPERATION OF MARINE VESSELS IS RISKY, AND WE DO NOT HAVE INSURANCE COVERAGE
FOR ALL RISKS.
Marine construction involves a high degree of operational risk. Hazards,
such as vessels sinking, grounding, colliding and sustaining damage from severe
weather conditions, are inherent in marine operations. These hazards can cause
personal injury or loss of life, severe damage to and destruction of property
and equipment, pollution or environmental damage and suspension of operations.
Damage arising from such occurrences may result in lawsuits asserting large
claims. We maintain such insurance protection as we deem prudent, including
Jones Act employee coverage, which is the maritime equivalent of workers'
compensation, and hull insurance on our vessels. We cannot assure you that any
such insurance will be sufficient or effective under all circumstances or
against all hazards to which we may be subject. A successful claim for which we
are not fully insured could have a material adverse effect on us. Moreover, we
cannot assure you that we will be able to maintain adequate insurance in the
future at rates that we consider reasonable. As a result of market conditions,
premiums and deductibles for certain of our insurance policies have increased
substantially, and could escalate further. In some instances, certain insurance
could become unavailable or available only for reduced amounts of coverage. For
example, insurance carriers are now requiring broad exclusions for losses due to
war risk and terrorist acts. As construction activity expands into deeper water
in the Gulf, a greater percentage of our revenues may be from Deepwater
construction projects that are larger and more complex, and thus riskier, than
shallow water projects. As a result, our revenues and profits are increasingly
dependent on our larger vessels. The current insurance on our vessels, in some
cases, is in amounts approximating book value, which is less than replacement
value. In the event of property loss due to a catastrophic marine disaster,
mechanical failure or collision, insurance may not cover a substantial loss of
revenues, increased costs and other liabilities, and could have a material
adverse effect on our operating performance if we were to lose any of our large
vessels.
OUR CONTRACTING BUSINESS DECLINES IN WINTER, AND BAD WEATHER IN THE GULF OR
NORTH SEA CAN ADVERSELY AFFECT OUR OPERATIONS.
Marine operations conducted in the Gulf and North Sea are seasonal and
depend, in part, on weather conditions. Historically, we have enjoyed our
highest vessel utilization rates during the summer and fall when weather
conditions are favorable for offshore exploration, development and construction
activities. We typically have experienced our lowest utilization rates in the
first quarter. As is common in the industry, we typically bear the risk of
delays caused by some but not all adverse weather conditions. Accordingly, our
results in any one quarter are not necessarily indicative of annual results or
continuing trends.
IF WE BID TOO LOW ON A TURNKEY CONTRACT, WE SUFFER CONSEQUENCES.
A majority of our projects are performed on a qualified turnkey basis where
described work is delivered for a fixed price and extra work, which is subject
to customer approval, is billed separately. The revenue, cost and gross profit
realized on a turnkey contract can vary from the estimated amount because of
changes in offshore job conditions, variations in labor and equipment
productivity from the original estimates, and the performance of others such as
alliance partners. These variations and risks inherent in the marine
construction industry may result in our experiencing reduced profitability or
losses on projects.
ESTIMATES OF OUR OIL AND GAS RESERVES, FUTURE CASH FLOWS AND ABANDONMENT COSTS
MAY BE SIGNIFICANTLY INCORRECT.
Our proved reserves at December 31, 2002, included the reserves assigned to
our ownership position in the Gunnison project, a Deepwater Gulf of Mexico oil
and gas field operated by Kerr-McGee Corporation. These reserves constitute 47%
of our total proved reserves as of December 31, 2002. The reserves assigned to
Gunnison were not generated by our reservoir engineers, as we do not own the
seismic data for the three fields that comprise Gunnison. Instead, they were
determined based on information provided by the operator, Kerr-McGee Oil & Gas
Corporation. These reserve estimates were reviewed by our engineers, including
an assessment of the operator's assumptions and their engineering, geologic and
evaluation principles and techniques. This prospectus also contains estimates of
our other proved oil and gas reserves and the estimated future net cash flows
therefrom based upon reports for the years ended December 31, 2000, 2001 and
2002,
4
reviewed by Miller and Lents, Ltd., independent petroleum engineers. These
reports rely upon various assumptions, including assumptions required by the
Securities and Exchange Commission, as to oil and gas prices, drilling and
operating expenses, capital expenditures, abandonment costs, taxes and
availability of funds. The process of estimating oil and gas reserves is
complex, requiring significant decisions and assumptions in the evaluation of
available geological, geophysical, engineering and economic data for each
reservoir. As a result, these estimates are inherently imprecise. Actual future
production, cash flows, development expenditures, operating and abandonment
expenses and quantities of recoverable oil and gas reserves may vary
substantially from those estimated in these reports. Any significant variance in
these assumptions could materially affect the estimated quantity and value of
our proved reserves. You should not assume that the present value of future net
cash flows from our proved reserves referred to in this prospectus is the
current market value of our estimated oil and gas reserves. In accordance with
Securities and Exchange Commission requirements, we base the estimated
discounted future net cash flows from our proved reserves on prices and costs on
the date of the estimate. Actual future prices and costs may differ materially
from those used in the net present value estimate. In addition, if costs of
abandonment are materially greater than our estimates, they could have an
adverse effect on earnings.
THE GUNNISON PROJECT MAY NOT RESULT IN THE EXPECTED CASH FLOWS OR SUBSEA ASSET
UTILIZATION WE ANTICIPATE AND COULD INVOLVE SIGNIFICANT FUTURE CAPITAL OUTLAYS.
The Gunnison project is subject to a number of assumptions and
uncertainties, including estimates of the capital outlays necessary to develop
the prospect and the cash flows that we may ultimately derive. We cannot assure
you that we will be able to fund all required capital outlays or that these
outlays will be profitable. Moreover, although we have contracts for subsea
construction work, the extent of utilization of our subsea assets for such work
has not been fully determined. We have a $35.0 million loan facility to provide
for the financing of part of our portion of the construction costs of the spar,
of which we had drawn down $31.9 million as of March 31, 2003. See "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources" in our Form 10-K/A listed under
"Incorporation of Documents by Reference."
EXPECTED CASH FLOWS FROM THE Q4000, INTREPID AND SEAWELL, AS WELL AS CANYON, MAY
NOT BE IMMEDIATE OR AS HIGH AS EXPECTED.
The Q4000, Intrepid and the Seawell are vessels that were placed into
service during 2002. In addition, during 2002 we acquired Canyon Offshore, Inc.,
a supplier of ROVs to the offshore construction and telecommunications industry.
We will not receive any material increase in revenue or cash flow from their
operation until there is significant utilization of these vessels and Canyon's
services. We cannot assure you that customer demand for these vessels and
Canyon's services will be as high as currently anticipated and, as a result, our
future cash flows may be adversely affected. New vessels from third parties may
also enter the market in the coming years and compete with the Q4000, Intrepid
and the Seawell for contracts.
OUR OIL AND GAS OPERATIONS INVOLVE SIGNIFICANT RISKS, AND WE DO NOT HAVE
INSURANCE COVERAGE FOR ALL RISKS.
Our oil and gas operations are subject to risks incident to the operation
of oil and gas wells, including, but not limited to, uncontrollable flows of
oil, gas, brine or well fluids into the environment, blowouts, cratering,
mechanical difficulties, fires, explosions, pollution and other risks, any of
which could result in substantial losses to us. We maintain insurance against
some, but not all, of the risks described above.
WE MAY NOT BE ABLE TO COMPETE SUCCESSFULLY AGAINST CURRENT AND FUTURE
COMPETITORS.
The business in which we operate is highly competitive. Several of our
competitors are substantially larger and have greater financial and other
resources than we have. If other companies relocate or acquire vessels for
operations in the Gulf or the North Sea, levels of competition may increase and
our business could be adversely affected.
5
THE LOSS OF THE SERVICES OF ONE OR MORE OF OUR KEY EMPLOYEES, OR OUR FAILURE TO
ATTRACT AND RETAIN OTHER HIGHLY QUALIFIED PERSONNEL IN THE FUTURE, COULD DISRUPT
OUR OPERATIONS AND ADVERSELY AFFECT OUR FINANCIAL RESULTS.
Our industry has lost a significant number of experienced subsea people
over the years due to, among other reasons, the volatility in commodity prices.
Our continued success depends on the active participation of our key employees.
The loss of our key people could adversely affect our operations. We believe
that our success and continued growth are also dependent upon our ability to
attract and retain skilled personnel. We believe that our wage rates are
competitive; however, unionization or a significant increase in the wages paid
by other employers could result in a reduction in our workforce, increases in
the wage rates we pay, or both. If either of these events occurs for any
significant period of time, our revenues and profitability could be diminished
and our growth potential could be impaired.
IF WE FAIL TO EFFECTIVELY MANAGE OUR GROWTH, OUR RESULTS OF OPERATIONS COULD BE
HARMED.
We have a history of growing through acquisitions of large assets and
acquisitions of companies. We must plan and manage our acquisitions effectively
to achieve revenue growth and maintain profitability in our evolving market. If
we fail to effectively manage current and future acquisitions, our results of
operations could be adversely affected. Our growth has placed, and is expected
to continue to place, significant demands on our personnel, management and other
resources. We must continue to improve our operational, financial, management
and legal/compliance information systems to keep pace with the growth of our
business.
WE MAY NEED TO CHANGE THE MANNER IN WHICH WE CONDUCT OUR BUSINESS IN RESPONSE TO
CHANGES IN GOVERNMENT REGULATIONS.
Our subsea construction, intervention, inspection, maintenance and
decommissioning operations and our oil and gas production from offshore
properties, including decommissioning of such properties, are subject to and
affected by various types of government regulation, including numerous federal,
state and local environmental protection laws and regulations. These laws and
regulations are becoming increasingly complex, stringent and expensive to comply
with, and significant fines and penalties may be imposed for noncompliance. We
cannot assure you that continued compliance with existing or future laws or
regulations will not adversely affect our operations.
CERTAIN PROVISIONS OF OUR CORPORATE DOCUMENTS AND MINNESOTA LAW MAY DISCOURAGE A
THIRD PARTY FROM MAKING A TAKEOVER PROPOSAL.
In addition to the 55,000 shares of preferred stock issued or issuable to
Fletcher under the Agreement, our board of directors has the authority, without
any action by our shareholders, to fix the rights and preferences on up to
4,945,000 shares of undesignated preferred stock, including dividend,
liquidation and voting rights. In addition, our by-laws divide the board of
directors into three classes. We are also subject to certain anti-takeover
provisions of the Minnesota Business Corporation Act. We also have employment
contracts with all of our senior officers that require cash payments in the
event of a "change of control." Any or all of the provisions or factors
described above may have the effect of discouraging a takeover proposal or
tender offer not approved by management and the board of directors and could
result in shareholders who may wish to participate in such a proposal or tender
offer receiving less for their shares than otherwise might be available in the
event of a takeover attempt.
SPECIAL STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference include certain
statements that may be deemed "forward-looking statements" within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act. You can
identify these statements by forward-looking words such as "anticipate,"
"believe," "budget," "could," "estimate," "expect," "forecast," "intend," "may,"
"plan," "potential," "should," "will" and "would" or similar words. You should
read statements that contain these words carefully because they discuss our
future expectations, contain projections of our future financial
6
position or results of operations or state other forward-looking information. We
believe that it is important to communicate our future expectations to our
investors. However, there may be events in the future that we are not able to
predict or control accurately. The factors listed under "Risk Factors" provide
examples of risks, uncertainties and events that may cause our actual results to
differ materially from the expectations we describe in our forward-looking
statements. You should be aware that the occurrence of the events described in
"Risk Factors" and elsewhere in this prospectus could have a material adverse
effect on our business, results of operations and financial position.
USE OF PROCEEDS
We will not receive any proceeds from the sale by Fletcher of the Common
Stock described in this prospectus.
THE SELLING SHAREHOLDER
The 7,486,907 shares of our Common Stock covered by this prospectus consist
of shares of our Common Stock that may be issued to Fletcher upon conversion or
redemption of or as dividends on the Series A Shares. As used in this
prospectus, "Series A Shares" means the shares of our Series A-1 Cumulative
Convertible Preferred Stock ("Series A-1 Preferred Stock") together with any
additional shares of preferred stock issuable to Fletcher pursuant to rights
under the Agreement, having, except as set forth in the Agreement, the same
terms, conditions, rights, preferences and privileges as the Series A-1
Preferred Stock. As used in this prospectus, "Fletcher" means Fletcher
International, Ltd. and donees, pledgees, transferees or other
successors-in-interest selling shares received from Fletcher International, Ltd.
as a gift, pledge, distribution or other transfer not involving a sale of our
stock. The selling shareholder has not held any position or office nor has it
had any other material relationship with us or any of our affiliates within the
past three years other than as a result of its ownership of shares of equity
securities.
The following table provides certain information with respect to Fletcher,
including Fletcher's beneficial ownership of our Common Stock as of April 22,
2003, and as adjusted to give effect to the sale of the shares covered by this
prospectus. The amounts set forth below are based upon information provided to
us by representatives of Fletcher, or on our records, as of April 22, 2003, and
are accurate to the best of our knowledge. As of the date of this prospectus,
Fletcher has not converted or redeemed any of the Series A-1 Preferred Stock and
no shares of Common Stock have been issued as dividends on the Series A-1
Preferred Stock. It is possible that Fletcher may have acquired, sold,
transferred or otherwise disposed of shares of our Common Stock in transactions
exempt from the registration requirements of the Securities Act of 1933, since
the date on which it provided the information to us regarding the shares
beneficially owned by it. This table assumes that Fletcher will offer for sale
all of its shares of our Common Stock. We do not know whether Fletcher will
convert or redeem the Series A Shares or whether it will offer for sale any or
all of the Common Stock covered by this prospectus.
Beneficial ownership is determined in accordance with Rule 13d-3(d)
promulgated by the Commission under the Securities Exchange Act of 1934, as
amended. Unless otherwise noted, each person or group identified possesses sole
voting and investment power with respect to the shares, subject to community
property laws where applicable.
COMMON STOCK PERCENTAGE OF
DEEMED BENEFICIALLY COMMON STOCK ALL COMMON STOCK
OWNED PRIOR TO COMMON STOCK TO BE OWNED TO BE OWNED
NAME THE OFFERING(1) OFFERED HEREBY(2) AFTER OFFERING(3) AFTER OFFERING(3)
---- ------------------- ----------------- ----------------- -----------------
Fletcher International,
Ltd....................... 833,333 7,486,907 0 0
---------------
(1) Includes 833,333 shares deemed to be beneficially owned due to Fletcher's
right to convert the Series A-1 Preferred Stock into Common Stock.
(2) We are contractually obligated to register a number of shares equal to not
less than 7,486,907 pursuant to the Agreement.
7
(3) Assumes Fletcher will receive all shares of Common Stock included in this
table and sell all such shares under this prospectus.
The securities listed above include outstanding securities held in one or
more accounts managed by Fletcher Asset Management, Inc. ("FAM") for Fletcher.
FAM is an investment adviser to Fletcher and is registered under Section 203 of
the Investment Advisors Act of 1940, as amended. Pursuant to an investment
advisory agreement between FAM and Fletcher, FAM has the authority to vote and
dispose of the securities in these accounts. By reason of the provisions of Rule
13d-3 under the Exchange Act, Fletcher and FAM may each be deemed to
beneficially own the securities registered under the registration statement of
which this prospectus is a part. In addition, by virtue of Alphonse Fletcher,
Jr.'s position as Chairman and Chief Executive Officer of FAM, Mr. Fletcher may
be deemed to have the shared power to vote or direct the vote of, and the shared
power to dispose or direct the disposition of, these securities. For these
reasons, Mr. Fletcher may also be deemed to be a beneficial owner of these
securities.
PLAN OF DISTRIBUTION
We are registering all 7,486,907 shares covered by this prospectus on
behalf of Fletcher. We will not receive any of the proceeds from sales by
Fletcher of the shares of Common Stock covered by this prospectus. Fletcher may
sell the shares covered by this prospectus that are ultimately issued to it at
different times. Fletcher will act independently of us in making decisions for
the timing, manner and size of each sale. The shares offered for sale under this
prospectus are listed on the Nasdaq National Market. The sales may be made on
one or more exchanges or quotation systems or in the over-the-counter market or
in other transactions, at prices and at terms then prevailing or at prices
related to the then current market price, or at otherwise negotiated prices.
The shares may be sold by one or more of, or a combination of, the
following in addition to any other method permitted under this prospectus:
- A block trade in which the broker-dealer so engaged will attempt to sell
the shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
- purchases by a broker-dealer as principal and resale by this
broker-dealer for its account through this prospectus;
- an exchange or quotation system distribution that complies with the rules
of the exchange or quotation system;
- ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
- privately negotiated transactions;
- an underwritten offering;
- by pledge to secure debts and other obligations;
- pursuant to hedging transactions; or
- by a combination of the above methods of sale.
If required, this prospectus may be amended or supplemented on a continual
basis to describe a specific plan of distribution. In effecting sales,
broker-dealers engaged by the selling shareholder may arrange for other
broker-dealers to participate in the resales.
Some or all of the shares covered by this prospectus may be sold to or
through an underwriter or underwriters. Any shares sold in that manner will be
acquired by the underwriters for their own accounts and may be resold at
different times in one or more transactions, including negotiated transactions,
at a fixed public offering price or at varying prices determined at the time of
sale. These shares may be offered to the public through underwriting syndicates
represented by one or more managing underwriters or may be offered
8
to the public directly by one or more underwriters. Any public offering price
and any discounts or concessions allowed or disallowed or paid to dealers may be
changed at different times.
Underwriters, broker-dealers or agents may receive compensation in the form
of commissions, discounts or concessions from Fletcher and/or the purchasers of
shares for whom such underwriters, broker-dealers or agents may act as agents or
to whom they sell as principal, or both. Underwriters, broker-dealers or agents
may also receive compensation from the purchasers of the shares for whom they
act as agents or to whom they sell as principals, or both. Compensation for or
to a particular underwriter or broker-dealer might be in excess of customary
commissions and will be in amounts to be negotiated at the time of the sale.
Underwriters, broker-dealers or agents and any other participating
broker-dealers or Fletcher may be considered to be underwriters within the
meaning of section 2(11) of the Securities Act, as amended, relating to the
sales of the shares. Underwriters are defined in this section as any person who
has purchased from an issuer with a view to, or offers or sells for an issuer in
connection with, the distribution of any security, or participates or has a
direct or indirect participation in any undertaking, or participates or has a
participation in the direct or indirect underwriting of any undertaking. Any
commission, discount or concession received by them and any profit on the resale
of the shares purchased by them may be considered to be underwriting discounts
or commissions under the Securities Act. Because Fletcher may be considered to
be an underwriter within the meaning of section 2(11) of the Securities Act,
Fletcher may be subject to the prospectus delivery requirements of the
Securities Act. Neither the delivery of any prospectus, or any prospectus
supplement, nor any other action taken by us, Fletcher or any purchaser relating
to the purchase or sale of shares under this prospectus will be considered or
treated as an admission that any of them is an underwriter within the meaning of
the Securities Act relating to the sale of any shares. Additionally, any
securities covered by this prospectus that qualify for sale through Rule 144
under the Securities Act may be sold under Rule 144 rather than through this
prospectus.
The shares may be sold through registered or licensed brokers or dealers if
required under applicable state securities law. Additionally, in some states the
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Fletcher may enter into hedging transactions with broker-dealers or others
who, in turn, may resell the shares in the course of hedging the positions they
assume through this prospectus. Fletcher may enter into option or other
transactions with broker-dealers that require the delivery to the broker-dealer
of shares which the broker-dealer may then resell or transfer through this
prospectus. Fletcher may also loan or pledge the shares to a broker-dealer, and
the broker-dealer may sell the loaned shares, or upon a default the pledged
shares, by use of this prospectus.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the shares may not engage in market-making
activities for our Common Stock during some restricted periods. Additionally,
Fletcher will be subject to applicable provisions of the Exchange Act and the
associated rules and regulations under the Exchange Act, including Regulation M,
that may limit the timing of purchases and sales of shares of our Common Stock
by Fletcher. We will make copies of this prospectus available to Fletcher and
have informed Fletcher of the need for delivery of copies of this prospectus to
purchasers at or before the time of any sale of the shares.
We will file a supplement to this prospectus, if required, pursuant to Rule
424(b) under the Securities Act upon being notified by Fletcher that any
material arrangement has been entered into with a broker-dealer for the sale of
shares through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer. That supplement will
disclose:
- the name of the selling shareholder and of the participating
broker-dealer(s);
- the number of shares involved;
- the price at which such shares were sold;
- the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable;
9
- that such broker-dealer(s) did not conduct any investigation to verify
the information set out or incorporated by reference in this prospectus;
and
- other facts material to the transaction.
We will bear all costs, expenses and fees for the registration of the
shares. Fletcher will bear all commissions and discounts, if any, attributable
to their individual sales of the shares. We have agreed to indemnify Fletcher
and Fletcher may agree to indemnify any broker-dealer or agent that participates
in transactions involving sales of the shares against some liabilities,
including liabilities arising under the Securities Act.
DESCRIPTION OF CAPITAL STOCK
Our amended and restated articles of incorporation provide for authorized
capital stock of 120,000,000 shares of Common Stock, of which 37,629,052 shares
were issued and outstanding on April 22, 2003, and 5,000,000 shares of preferred
stock, of which 25,000 shares are issued and outstanding. The following summary
description of our capital stock is qualified in its entirety by reference to
our amended and restated articles of incorporation and our amended and restated
by-laws, each of which is incorporated by reference.
COMMON STOCK
The holders of Common Stock are entitled to one vote for each share on all
matters voted on by shareholders, and except as otherwise required by law or as
provided in any resolution adopted by the board of directors with respect to any
series of preferred stock, the holders of shares of Common Stock exclusively
possess all voting power.
Subject to any preferential rights of any outstanding series of preferred
stock created by the board of directors from time to time, the holders of Common
Stock are entitled to such dividends as may be declared from time to time by the
board of directors from funds available therefor, and upon liquidation will be
entitled to receive pro rata all assets of Cal Dive available for distribution
to such holders. The Common Stock is not convertible or redeemable and there are
no sinking fund provisions therefor. Holders of the Common Stock are not
entitled to any preemptive rights.
PREFERRED STOCK
Our board of directors, without any action by our shareholders, is
authorized to issue up to 5,000,000 shares of preferred stock, in one or more
series and to determine the voting rights, preferences as to dividends and
assets in liquidation and the conversion and other rights of each such series.
There are 25,000 shares of Series A-1 Preferred Stock outstanding. See "Certain
Anti-Takeover Provisions" below with regard to the effect that the issuance of
additional shares of preferred stock might have on attempts to take over Cal
Dive.
CERTAIN ANTI-TAKEOVER PROVISIONS
The articles of incorporation and by-laws contain a number of provisions
that could make the acquisition of Cal Dive by means of a tender or exchange
offer, a proxy contest or otherwise more difficult. The description of those
provisions set forth below is intended to be only a summary and is qualified in
its entirety by reference to the pertinent sections of the articles of
incorporation and the by-laws, which are incorporated by reference into this
prospectus.
Classified Board of Directors; Removal of Directors. Our directors are
currently divided into three classes, only one class of which is subject to
re-election in any given year. The classification of directors will have the
effect of making it more difficult for shareholders to change the composition of
the board of directors. At least two annual meetings of shareholders generally
will be required to effect a change in majority of the board of directors. Such
a delay may help ensure that our directors, if confronted by a shareholder
attempting
10
to force a proxy contest, a tender or exchange offer or an extraordinary
corporate transaction, would have sufficient time to review the proposal as well
as any available alternatives to the proposal and to act in what they believe to
be the best interest of the shareholders. The classification provisions will
apply to every election of directors, however, regardless of whether a change in
the composition of the board of directors would be beneficial to us and our
shareholders and whether a majority of our shareholders believes that such a
change would be desirable.
The articles of incorporation provide that our directors may only be
removed by the affirmative vote of the holders of 68% of the voting power of all
the then outstanding shares of stock entitled to vote generally in the election
of directors (the "Voting Stock").
The classification provisions could also have the effect of discouraging a
third party from initiating a proxy contest, making a tender or exchange offer
or otherwise attempting to obtain control of Cal Dive, even though such an
attempt might be beneficial to us and our shareholders. These provisions could
thus increase the likelihood that incumbent directors will retain their
positions. In addition, the classification provisions may discourage
accumulations of large blocks of our Common Stock that are effected for purposes
of changing the composition of the board of directors. Accordingly, shareholders
could be deprived of certain opportunities to sell their shares of Common Stock
at a higher market price than might otherwise be the case.
Preferred Stock. The articles of incorporation authorize the board of
directors to establish one or more series of preferred stock and to determine,
with respect to any series of preferred stock, the terms and rights of such
series, including:
- the designation of the series;
- the number of shares of the series, which number the board may thereafter
(except where otherwise provided in the certificate of designation)
increase or decrease (but not below the number of shares thereof then
outstanding);
- whether dividends, if any, will be cumulative or non-cumulative and the
dividend rate of the series;
- the dates at which dividends, if any, will be payable;
- the redemption rights and price or prices, if any, for shares of the
series;
- the terms and amounts of any sinking fund provided for the purchase or
redemption of shares of the series;
- the amounts payable on shares of the series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of
Cal Dive;
- whether the shares of the series will be convertible into shares of any
other class or series, or any other security, of Cal Dive or any other
corporation, and, if so, the specification of the other class or series
or the other security, the conversion price or prices or rate or rates,
any adjustments thereof, the date or dates as of which such shares shall
be convertible and all of the terms and conditions upon which such
conversion may be made;
- restrictions, if any, on the issuance of shares of the same series or of
any other class or series; and
- voting rights, if any, of the shareholder of such series, which may
include the right of such shareholders to vote separately as a class on
any matter.
We believe that the ability of the board of directors to issue one or more
series of preferred stock will provide us with flexibility in structuring
possible future financings and acquisitions and in meeting other corporate needs
which might arise. The authorized shares or preferred stock, as well as shares
of Common Stock, will be available for issuance without further action by our
shareholders, unless that action is required by applicable law or the rules of
any stock exchange or automated quotation system on which our securities may be
listed or traded.
11
Although the board of directors has no intention at the present time of
doing so, it could issue a series of preferred stock that, depending on the
terms of such series, might impede the completion of a proxy contest, merger,
tender or exchange offer or other attempt to obtain control of Cal Dive. The
board of directors will make any determination to issue such shares based on its
judgment as to the best interests of Cal Dive and our shareholders. The board of
directors, in so acting, could issue preferred stock having terms that could
discourage an acquisition attempt through which an acquiror may be otherwise
able to change the composition of the board of directors, including a tender or
exchange offer or other transaction that some, or a majority of our shareholders
might believe to be in their best interests or in which shareholders might
receive a premium for their stock over the then current market price of such
stock.
No Shareholder Action by Written Consent; Special Meetings. The articles
of incorporation and by-laws provide that shareholder action can be taken only
at an annual or special meeting of shareholders and prohibit shareholder action
by written consent in lieu of a meeting. The by-laws provide that special
meetings of shareholders can be called only upon a written request by the chief
executive officer or a majority of the members of the board of directors.
Shareholders are not permitted to call a special meeting or to require that the
board of directors call a special meeting.
The provisions of the articles of incorporation and the by-laws prohibiting
shareholder action by written consent may have the effect of delaying
consideration of a shareholder proposal, including a shareholder proposal that a
majority of shareholders believes to be in the best interest of Cal Dive, until
the next annual meeting unless a special meeting is called. These provisions
would also prevent the holders of a majority of the Voting Stock from
unilaterally using written consents to take shareholder action. Moreover, a
shareholder could not force shareholder consideration of a proposal over the
opposition of the board of directors by calling a special meeting of
shareholders prior to the time a majority of the board of directors believes
such consideration to be appropriate.
Amendment of Certain Provisions of the Articles of Incorporation and
Bylaws. Under the Minnesota Business Corporation Act (the "MBCA"), the
shareholders have the right to adopt, amend or repeal the by-laws and, with the
approval of the board of directors, the articles of incorporation. The articles
of incorporation provide that the affirmative vote of the holders of at least
80% of the voting power of the then outstanding shares of Voting Stock, voting
together as a single class, and in addition to any other vote required by the
articles of incorporation or by-laws, is required to amend provisions of the
articles of incorporation of by-laws relating to:
- the prohibition of shareholder action without a meeting;
- the prohibition of shareholders calling a special meeting;
- the number, election and term of our directors;
- the removal of directors; and
- fixing a quorum for meetings of shareholders.
The vote of the holders of a majority of the voting power of the
outstanding shares of Voting Stock is required to amend all other provisions of
the articles of incorporation. The by-laws further provide that the by-laws may
be amended by the board of directors. These super-majority voting requirements
will have the effect of making more difficult any amendment by shareholders of
the by-laws or of any of the provisions that such amendment would be in their
best interests.
Anti-Takeover Legislation. As a public corporation, we are governed by the
provisions of Section 302A.673 of the MBCA. This anti-takeover provision may
eventually operate to deny shareholders the receipt of a premium on their Common
Stock and may also have a depressive effect on the market price of our Common
Stock. Section 302A.673 prohibits a public corporation from engaging in a
"business combination" with an "interested shareholder" for a period of four
years after the date of the transaction in which the person became an interested
shareholder, unless the business combination is approved by a committee of all
of the disinterested members of our board of directors before the interested
shareholder's share acquisition date. A "business combination" includes mergers,
asset sales and other transaction. An "interested shareholder" is a
12
person who is the beneficial owner of 10% or more of the corporation's Voting
Stock. Reference is made to the detailed terms of Section 302A.673 of the MBCA.
LIMITATION ON DIRECTORS' LIABILITY AND INDEMNIFICATION OF DIRECTORS AND OFFICERS
The articles of incorporation contain a provision that eliminates, to the
extent currently allowed under the MBCA, the personal monetary liability of a
director to Cal Dive and our shareholders for breach of fiduciary duty of care
as a director, except in certain circumstances. If a director of Cal Dive were
to breach such fiduciary duty of care in performing duties as a director,
neither Cal Dive nor our shareholders could recover monetary damages from the
director, and the only course of action available to our shareholders would be
equitable remedies, such as an action to enjoin or rescind a transaction
involving a breach of the fiduciary duty of care. To the extent certain claims
against directors are limited to equitable remedies, this provision of the
articles of incorporation may reduce the likelihood of derivative litigation
against directors for breach of their fiduciary duty of care. Additionally,
equitable remedies may not be effective in many situations. If a shareholder's
only remedy is to enjoin the completion of the board of directors' action, this
remedy would be ineffective if the shareholder does not become aware of a
transaction or event until after its has been completed. In such a situation,
such shareholder would not have effective remedy against the directors.
Our by-laws require us to indemnify directors and officers to the fullest
extent permitted under Minnesota law. The MBCA provides that a corporation
organized under the Minnesota law shall indemnify any director, officer,
employee or agent of the corporation made or threatened to be made a party to a
proceeding, by reason of the former or present official capacity (as defined in
the MBCA) of the person, against judgments, penalties, fines, settlements, and
reasonable expense incurred by the person in connection with the proceedings if
certain statutory standards are met. "Proceeding" means a threatened, pending or
completed civil, criminal, administrative, arbitration or investigative
proceeding, including one by or in the right of the corporation. Selection
302A.521 of the MBCA contains detailed terms regarding such rights of
indemnification and reference is made thereto for a complete statement of such
indemnification rights.
All of the foregoing indemnification provisions include statements that
such provisions are not to be deemed exclusive of any other right to indemnity
to which a director or officer may be entitled under any bylaw, agreement, vote
of shareholders or disinterested directors or otherwise.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our Common Stock is Wells Fargo Bank
Minnesota, N.A.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" information into this
prospectus, which means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is deemed to be part of this prospectus, except for
any information superseded by information in this prospectus. This prospectus
incorporates by reference the documents set forth below that we previously filed
with the SEC. These documents contain important information about us.
- our annual report on Form 10-K/A for our fiscal year ended December 31,
2002;
- our proxy statement on Schedule 14-A filed April 15, 2003; and
- our current reports on Form 8-K dated January 8, 2003, January 22, 2003
and February 24, 2003.
All documents that we file pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 after the date of this prospectus will be
deemed to be incorporated in this prospectus by reference and will be a part of
this prospectus from the date of the filing of the document. Any statement
contained in a document incorporated or deemed to be incorporated by reference
in this prospectus will be deemed to be modified or superseded for purposes of
this prospectus to the extent that a statement contained in this prospectus or
in any other subsequently filed document which also is or is deemed to be
incorporated by
13
reference in this prospectus modifies or supersedes that statement. Any
statement that is modified or superseded will not constitute a part of this
prospectus, except as modified or superceded.
Upon oral or written request and at no cost to the requester, we will
provide to any person, including a beneficial owner, to whom a prospectus is
delivered, a copy of any or all of the information that has been incorporated by
reference in this prospectus but not delivered with this prospectus. All
requests should be made to: Cal Dive International, Inc. 400 N. Sam Houston
Parkway E., Suite 400, Houston, Texas 77060 Attn: A. Wade Pursell, Chief
Financial Officer. Telephone requests may be directed to the Chief Financial
Officer at (281) 618-0400. You should rely only on the information incorporated
by reference or provided in this prospectus. We have not authorized anyone to
provide you with different information. You should not assume that the
information in this prospectus or the documents incorporated by reference is
accurate as of any date other than the date on the front of this prospectus or
those documents or that any document incorporated by reference is accurate as of
any date other than its filing date.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities Exchange
Act of 1934, as amended, and, in accordance therewith, file reports and other
information with the Securities and Exchange Commission. Copies of reports,
proxy statements and other information filed by the Company with the Commission
can be inspected and copied at the Commission's public reference facilities at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and, upon request, may
be made available at the Commission's regional offices at 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511, and at 233 Broadway, New York,
New York 10279. You may obtain information on the operation of the Public
Reference Room by calling the Securities and Exchange Commission at
1-800-SEC-0330. The Securities and Exchange Commission maintains a web site that
contains reports, proxy and information statements and other information
regarding registrants, including Cal Dive International, Inc., that file
electronically with the Securities and Exchange Commission. You may access the
Securities and Exchange Commission's web site at http://www.sec.gov.
Our Common Stock trades on the Nasdaq National Market System. Copies of
reports, proxy statements and other information concerning us can also be
inspected at the offices of National Association of Securities Dealers, Inc.,
located at 1735 K Street, N.W. Washington, D.C. 20006.
We also have filed with the Securities and Exchange Commission a
registration statement on Form S-3 under the Securities Act of 1933, as amended
with respect to the shares offered hereby. This prospectus does not contain all
of the information set forth in the registration statement and the exhibits and
schedules thereto. For further information with respect to the Company and the
offering, reference is made to such registration statement, exhibits and
schedules, which may be inspected without charge at the Commission's office in
Washington, D.C., and copies of all or any part thereof may be obtained from
such office after payment of fees prescribed by the Commission.
EXPERTS
The consolidated financial statements of Cal Dive International, Inc. at
December 31, 2002, and for the year then ended appearing in Cal Dive
International Inc.'s Annual Report (Form 10-K/A) for the year ended December 31,
2002, have been audited by Ernst & Young LLP, independent auditors, as set forth
in their report thereon included therein and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by reference in
reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
The consolidated financial statements of Cal Dive International, Inc. as of
December 31, 2001 and for each of the years in the two year period ended
December 31, 2001 incorporated by reference in this prospectus and elsewhere in
the registration statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their report with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in giving
said report. On June 13, 2002, the Company dismissed
14
Arthur Andersen LLP as its principal independent auditors and engaged Ernst &
Young LLP. The Company did not consult with Ernst & Young LLP on any matter
prior to their retention in June 2002. Arthur Andersen LLP has not consented to
the inclusion of their report in this prospectus, and we have dispensed with the
requirement to file their consent in reliance upon Rule 437a of the Securities
Act of 1933. Because Arthur Andersen LLP has not consented to the inclusion of
their report in this prospectus, you will not be able to recover against Arthur
Andersen LLP under Section 11 of the Securities Act for any untrue statements of
a material fact contained in the financial statements audited by Arthur Andersen
LLP or any omissions of a material fact required to be stated therein.
The estimated reserve evaluations (excluding Gunnison) and related
calculations of Miller & Lents, Ltd. incorporated by reference in this
prospectus and elsewhere in this registration statement have been included
herein in reliance upon the authority of said firm as an expert in petroleum
engineering.
LEGAL MATTERS
The validity of the Common Stock offered under this prospectus will be
passed upon by our Special Counsel, Andrew C. Becher.
15
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NO DEALER, SALES REPRESENTATIVE OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS
OFFERING OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY OUR COMPANY OR ANY OTHER PERSON. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES
OTHER THAN THE SHARES OF COMMON STOCK TO WHICH IT RELATES OR AN OFFER TO, OR A
SOLICITATION OF, ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER OR
SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF OUR COMPANY OR THAT INFORMATION
CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the issuance and distribution of the
securities being registered are set forth in the following table (all amounts
except the registration fees are estimated):
Registration fee -- Securities and Exchange Commission...... $10,496.63
Accountant's fees and expenses -- Company................... $10,000.00
Legal expenses -- Company................................... $15,000.00
Printing expenses........................................... $ 2,000.00
Miscellaneous............................................... $ 5,000.00
----------
TOTAL....................................................... $42,496.63
All expenses itemized above shall be borne by our Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The articles of incorporation contain a provision that eliminates, to the
extent currently allowed under the MBCA, the personal monetary liability of a
director to Cal Dive and our shareholders for breach of fiduciary duty of care
as a director, except in certain circumstances. If a director of Cal Dive were
to breach such fiduciary duty of care in performing duties as a director,
neither Cal Dive nor our shareholders could recover monetary damages from the
director, and the only course of action available to our shareholders would be
equitable remedies, such as an action to enjoin or rescind a transaction
involving a breach of the fiduciary duty of care. To the extent certain claims
against directors are limited to equitable remedies, this provision of the
articles of incorporation may reduce the likelihood of derivative litigation
against directors for breach of their fiduciary duty of care. Additionally,
equitable remedies may not be effective in many situations. If a shareholder's
only remedy is to enjoin the completion of the board of directors' action, this
remedy would be ineffective if the shareholder does not become aware of a
transaction or event until after its has been completed. In such a situation,
such shareholder would not have effective remedy against the directors.
Our by-laws require us to indemnify directors and officers to the fullest
extent permitted under Minnesota law. The MBCA provides that a corporation
organized under the Minnesota law shall indemnify any director, officer,
employee or agent of the corporation made or threatened to be made a party to a
proceeding, by reason of the former or present official capacity (as defined in
the MBCA) of the person, against judgments, penalties, fines, settlements, and
reasonable expense incurred by the person in connection with the proceedings if
certain statutory standards are met. "Proceeding" means a threatened, pending or
completed civil, criminal, administrative, arbitration or investigative
proceeding, including one by or in the right of the corporation. Selection
302A.521 of the MBCA contains detailed terms regarding such rights of
indemnification and reference is made thereto for a complete statement of such
indemnification rights.
All of the foregoing indemnification provisions include statements that
such provisions are not to be deemed exclusive of any other right to indemnity
to which a director or officer may be entitled under any bylaw, agreement, vote
of shareholders or disinterested directors or otherwise.
ITEM 16. EXHIBITS
3.1 Amended and Restated Articles of Incorporation of
registrant, incorporated by reference to Exhibit 3.1 to the
Form S-1 Registration Statement filed by registrant with the
Securities and Exchange Commission on May 1, 1997 (Reg. No.
333-26357) (the "Form S-1").
3.2 Bylaws of registrant, incorporated by reference to Exhibit
3.2 to the Form S-1.
II-1
..3 3 Articles of Correction, incorporated by reference to Exhibit 3.3 to the Form S-3 Registration
Statement filed by registrant with the Securities and Exchange Commission on May 22, 2002 (Reg.
No. 333-87620) (the "Form S-3").
3.4 Amendment to the 1997 Amended and Restated Articles of Incorporation of registrant,
incorporated by reference to Exhibit 3.4 to the Form S-3.
3.5 Certificate of Rights and Preferences, incorporated by reference to Exhibit 3.1 to the Current
Report on Form 8-K, filed by registrant with the Securities and Exchange Commission on January
22, 2003 (the "Form 8-K").
4.1 Second Amended and Restated Loan and Security Agreement by and among Fleet Capital Corporation,
Southwest Bank of Texas, N.A. and Whitney National Bank, as Lenders, and Cal Dive
International, Inc., Energy Resource Technology, Inc., Aquatica, Inc. and Canyon Offshore,
Inc., as Borrowers, dated February 22, 2002, incorporated by reference to Exhibit 4.1 to the
registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2001, filed by
the registrant with the Securities and Exchange Commission on March 28, 2002 (the "2001 Form
10-K").
4.2 First Amendment to Second Amended and Restated Loan and Security Agreement by and among Fleet
Capital Corporation, Southwest Bank of Texas, N.A. and Whitney National Bank, as Lenders, and
Cal Dive International, Inc., Energy Resource Technology, Inc., Aquatica, Inc. and Canyon
Offshore, Inc., as Borrowers, dated August 9, 2002, incorporated by reference to Exhibit 4.2 to
the registrant's Annual Report on Form 10-K/A for the fiscal year ended December 31, 2002,
filed by the registrant with the Securities and Exchange Commission on April 8, 2003 (the "2002
Form 10-K").
4.3 Second Amendment to Second Amended and Restated Loan and Security Agreement by and among Fleet
Capital Corporation, Southwest Bank of Texas, N.A. and Whitney National Bank, as Lenders, and
Cal Dive International, Inc., Energy Resource Technology, Inc. and Canyon Offshore, Inc., as
Borrowers, dated August 30, 2002, incorporated by reference to Exhibit 4.3 to the 2002 Form
10-K.
4.4 Third Amendment to Second Amended and Restated Loan and Security Agreement by and among Fleet
Capital Corporation, Southwest Bank of Texas, N.A. and Whitney National Bank, as Lenders, and
Cal Dive International, Inc., Energy Resource Technology, Inc. and Canyon Offshore, Inc., as
Borrowers, dated October 24, 2002, incorporated by reference to Exhibit 4.1 to this
Registration Statement as originally filed by the registrant with the Securities and Exchange
Commission on February 26, 2003 (Reg. 333-103451) (the "2003 Form S-3").
4.5 Fourth Amendment to Second Amended and Restated Loan and Security Agreement by and among Fleet
Capital Corporation, Southwest Bank of Texas, N.A. and Whitney National Bank, as Lenders, and
Cal Dive International, Inc., Energy Resource Technology, Inc. and Canyon Offshore, Inc., as
Borrowers, dated February 14, 2003, incorporated by reference to Exhibit 4.5 to the 2002 Form
10-K.
4.6 Participation Agreement among ERT, Cal Dive International, Inc., Cal Dive/Gunnison Business
Trust No. 2001-1 and Bank One, N.A., et. al., dated as of November 8, 2001, incorporated by
reference to Exhibit 4.2 to the 2001 Form 10-K.
4.7 Form of Common Stock certificate, incorporated by reference to Exhibit 4.1 to the Form S-1.
4.8 Credit Agreement among Cal Dive I-Title XI, Inc., GOVCO Incorporated, Citibank N.A. and
Citibank International LLC dated as of August 16, 2000, incorporated by reference to Exhibit
4.4 to the 2001 Form 10-K.
4.9 Amendment No. 1 to Credit Agreement among Cal Dive I-Title XI, Inc., GOVCO Incorporated,
Citibank N.A. and Citibank International LLC dated as of January 25, 2002, incorporated by
reference to Exhibit 4.9 to the 2002 Form 10-K.
4.10 Amendment No. 2 to Credit Agreement among Cal Dive I-Title XI, Inc., GOVCO Incorporated,
Citibank N.A. and Citibank International LLC dated as of November 15, 2002, incorporated by
reference to Exhibit 4.4 to the 2003 Form S-3.
4.11 First Amended and Restated Agreement dated January 17, 2003, but effective as of December 31,
2002, made by and between Cal Dive International, Inc. and Fletcher International, Ltd.,
incorporated by reference to Exhibit 10.1 to the Form 8-K.
II-2
4.12 Amended and Restated Credit Agreement among Cal
Dive/Gunnison Business Trust No. 2001-1, Energy Resource
Technology, Inc., Cal Dive International, Inc., Wilmington
Trust Company, a Delaware banking corporation, the Lenders
party thereto, and Bank One, NA, as Agent, dated July 26,
2002, incorporated by reference to Exhibit 4.12 to the 2002
Form 10-K.
4.13 First Amendment to Amended and Restated Credit Agreement
among Cal Dive/Gunnison Business Trust No. 2001-1, Energy
Resource Technology, Inc., Cal Dive International, Inc.,
Wilmington Trust Company, a Delaware banking corporation,
the Lenders party thereto, and Bank One, NA, as Agent, dated
January 7, 2003, incorporated by reference to Exhibit 4.13
to the 2002 Form 10-K.
4.14 Second Amendment to Amended and Restated Credit Agreement
among Cal Dive/Gunnison Business Trust No. 2001-1, Energy
Resource Technology, Inc., Cal Dive International, Inc.,
Wilmington Trust Company, a Delaware banking corporation,
the Lenders party thereto, and Bank One, NA, as Agent, dated
February 14, 2003, incorporated by reference to Exhibit 4.14
to the 2002 Form 10-K.
5.1* Opinion of Andrew C. Becher.
23.1** Consent of Ernst & Young LLP.
23.2** Consent of Miller & Lents, Ltd.
23.3* Consent of Andrew C. Becher (included in Exhibit 5.1).
24.1* Power of Attorney from members of the Board of Directors and
certain officers of the registrant (located on the signature
page of this Registration Statement as originally filed).
---------------
* Previously filed.
** Filed herewith.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
To include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933, as amended.
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 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 and of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
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 the first two undertakings do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the undersigned registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
That, for the purpose of determining any liability under the Securities Act
of 1933, as amended, 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 to be the initial bona fide offering
thereof;
II-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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the undersigned registrant's annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, may be permitted to directors, officers and controlling persons of the
undersigned registrant pursuant to the foregoing provisions, or otherwise, the
undersigned registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
undersigned registrant of expenses incurred or paid by a director, officer or
controlling person of the undersigned 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
undersigned registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on April 28, 2003.
CAL DIVE INTERNATIONAL, INC.
By: /s/ A. WADE PURSELL
------------------------------------
A. Wade Pursell
Senior Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
* Chairman, Chief April 28, 2003
-------------------------------- Executive
Owen Kratz Officer and Director
* President, Chief April 28, 2003
-------------------------------- Operating
Martin R. Ferron Officer and Director
* Vice Chairman and April 28, 2003
-------------------------------- Director
S. James Nelson, Jr.
/s/ A. WADE PURSELL Senior Vice President April 28, 2003
----------------------------------- and Chief
A. Wade Pursell Financial Officer
(principal
financial and
accounting officer)
* Director April 28, 2003
--------------------------------
Gordon F. Ahalt
* Director April 28, 2003
--------------------------------
Bernard J. Duroc-Danner
* Director April 28, 2003
--------------------------------
William Transier
* Director April 28, 2003
--------------------------------
John Lovoi
* Director April 28, 2003
--------------------------------
Anthony Tripodo
*By: /s/ JAMES LEWIS CONNOR, III
--------------------------------
James Lewis Connor, III,
As Attorney-in-Fact
For Each of the Persons
Indicated
II-5
EXHIBITS
3.1 Amended and Restated Articles of Incorporation of
registrant, incorporated by reference to Exhibit 3.1 to the
Form S-1 Registration Statement filed by registrant with the
Securities and Exchange Commission on May 1, 1997 (Reg. No.
333-26357) (the "Form S-1").
3.2 Bylaws of registrant, incorporated by reference to Exhibit
3.2 to the Form S-1.
3.3 Articles of Correction, incorporated by reference to Exhibit
3.3 to the Form S-3 Registration Statement filed by
registrant with the Securities and Exchange Commission on
May 22, 2002 (Reg. No. 333-87620) (the "Form S-3").
3.4 Amendment to the 1997 Amended and Restated Articles of
Incorporation of registrant, incorporated by reference to
Exhibit 3.4 to the Form S-3.
3.5 Certificate of Rights and Preferences, incorporated by
reference to Exhibit 3.1 to the Current Report on Form 8-K,
filed by registrant with the Securities and Exchange
Commission on January 22, 2003 (the "Form 8-K").
4.1 Second Amended and Restated Loan and Security Agreement by
and among Fleet Capital Corporation, Southwest Bank of
Texas, N.A. and Whitney National Bank, as Lenders, and Cal
Dive International, Inc., Energy Resource Technology, Inc.,
Aquatica, Inc. and Canyon Offshore, Inc., as Borrowers,
dated February 22, 2002, incorporated by reference to
Exhibit 4.1 to the registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 2001, filed by the
registrant with the Securities and Exchange Commission on
March 28, 2002 (the "2001 Form 10-K").
4.2 First Amendment to Second Amended and Restated Loan and
Security Agreement by and among Fleet Capital Corporation,
Southwest Bank of Texas, N.A. and Whitney National Bank, as
Lenders, and Cal Dive International, Inc., Energy Resource
Technology, Inc., Aquatica, Inc. and Canyon Offshore, Inc.,
as Borrowers, dated August 9, 2002, incorporated by
reference to Exhibit 4.2 to the registrant's Annual Report
on Form 10-K/A for the fiscal year ended December 31, 2002,
filed by the registrant with the Securities and Exchange
Commission on April 8, 2003 (the "2002 Form 10-K").
4.3 Second Amendment to Second Amended and Restated Loan and
Security Agreement by and among Fleet Capital Corporation,
Southwest Bank of Texas, N.A. and Whitney National Bank, as
Lenders, and Cal Dive International, Inc., Energy Resource
Technology, Inc. and Canyon Offshore, Inc., as Borrowers,
dated August 30, 2002, incorporated by reference to Exhibit
4.3 to the 2002 Form 10-K.
4.4 Third Amendment to Second Amended and Restated Loan and
Security Agreement by and among Fleet Capital Corporation,
Southwest Bank of Texas, N.A. and Whitney National Bank, as
Lenders, and Cal Dive International, Inc., Energy Resource
Technology, Inc. and Canyon Offshore, Inc., as Borrowers,
dated October 24, 2002, incorporated by reference to Exhibit
4.1 to this Registration Statement as originally filed by
the registrant with the Securities and Exchange Commission
on February 26, 2003 (Reg. 333-103451) (the "2003 Form
S-3").
4.5 Fourth Amendment to Second Amended and Restated Loan and
Security Agreement by and among Fleet Capital Corporation,
Southwest Bank of Texas, N.A. and Whitney National Bank, as
Lenders, and Cal Dive International, Inc., Energy Resource
Technology, Inc. and Canyon Offshore, Inc., as Borrowers,
dated February 14, 2003, incorporated by reference to
Exhibit 4.5 to the 2002 Form 10-K.
4.6 Participation Agreement among ERT, Cal Dive International,
Inc., Cal Dive/Gunnison Business Trust No. 2001-1 and Bank
One, N.A., et. al., dated as of November 8, 2001,
incorporated by reference to Exhibit 4.2 to the 2001 Form
10-K.
4.7 Form of Common Stock certificate, incorporated by reference
to Exhibit 4.1 to the Form S-1.
4.8 Credit Agreement among Cal Dive I-Title XI, Inc., GOVCO
Incorporated, Citibank N.A. and Citibank International LLC
dated as of August 16, 2000, incorporated by reference to
Exhibit 4.4 to the 2001 Form 10-K.
4.9 Amendment No. 1 to Credit Agreement among Cal Dive I-Title
XI, Inc., GOVCO Incorporated, Citibank N.A. and Citibank
International LLC dated as of January 25, 2002, incorporated
by reference to Exhibit 4.9 to the 2002 Form 10-K.
4.10 Amendment No. 2 to Credit Agreement among Cal Dive I-Title
XI, Inc., GOVCO Incorporated, Citibank N.A. and Citibank
International LLC dated as of November 15, 2002,
incorporated by reference to Exhibit 4.4 to the 2003 Form
S-3.
4.11 First Amended and Restated Agreement dated January 17, 2003,
but effective as of December 31, 2002, made by and between
Cal Dive International, Inc. and Fletcher International,
Ltd., incorporated by reference to Exhibit 10.1 to the Form
8-K.
4.12 Amended and Restated Credit Agreement among Cal
Dive/Gunnison Business Trust No. 2001-1, Energy Resource
Technology, Inc., Cal Dive International, Inc., Wilmington
Trust Company, a Delaware banking corporation, the Lenders
party thereto, and Bank One, NA, as Agent, dated July 26,
2002, incorporated by reference to Exhibit 4.12 to the 2002
Form 10-K.
4.13 First Amendment to Amended and Restated Credit Agreement
among Cal Dive/Gunnison Business Trust No. 2001-1, Energy
Resource Technology, Inc., Cal Dive International, Inc.,
Wilmington Trust Company, a Delaware banking corporation,
the Lenders party thereto, and Bank One, NA, as Agent, dated
January 7, 2003, incorporated by reference to Exhibit 4.13
to the 2002 Form 10-K.
4.14 Second Amendment to Amended and Restated Credit Agreement
among Cal Dive/Gunnison Business Trust No. 2001-1, Energy
Resource Technology, Inc., Cal Dive International, Inc.,
Wilmington Trust Company, a Delaware banking corporation,
the Lenders party thereto, and Bank One, NA, as Agent, dated
February 14, 2003, incorporated by reference to Exhibit 4.14
to the 2002 Form 10-K.
5.1* Opinion of Andrew C. Becher.
23.1** Consent of Ernst & Young LLP.
23.2** Consent of Miller & Lents, Ltd.
23.3* Consent of Andrew C. Becher (included in Exhibit 5.1).
24.1* Power of Attorney from members of the Board of Directors and
certain officers of the registrant (located on the signature
page of this Registration Statement as originally filed).
---------------
* Previously filed.
** Filed herewith.