UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
Date of Report (Date of earliest event reported):
October 6, 2004 (October 4, 2004)
___________________
TORCH OFFSHORE, INC.
(Exact Name of Registrant as Specified in its Charter)
000-32855
(Commission File Number)
Delaware 74-2982117
(State or Other Jurisdiction (IRS Employer
of Incorporation) Identification No.)
401 Whitney Avenue, Suite 400
Gretna, Louisiana 70056-2596
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code:
(504) 367-7030
___________________
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of
the Registrant under any of the following provisions:
[ ] Written communications pursuant to Rule 425 under
the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under
the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule
14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule
13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c)
SECTION 1 - REGISTRANT'S BUSINESS AND OPERATIONS
Item 1.01 Entry into a Material Definitive Agreement.
On October 4, 2004, Torch Offshore, Inc. (the "Company")
entered into a settlement agreement with Cable Shipping
Inc., the owners of the Midnight Hunter, in the amount of
$4.1 million. The Company and Cable Shipping Inc. were
parties in a London arbitration relating to the cancellation
of the charter of the Midnight Hunter in which an interim
award was given to Cable Shipping Inc. in November 2003.
Quantum was set for October 13 - 19, 2004 in London,
England.
The terms of the settlement agreement call for payment of
the $4.1 million by the Company to Cable Shipping Inc. on
November 19, 2004. The current charter of the Midnight
Hunter to the Company, which was executed on January 28,
2004, remains in tact through September 2, 2005.
SECTION 2 - FINANCIAL INFORMATION
Item 2.03 Creation of a Direct Financial Obligation or
an Obligation under an Off-Balance Sheet
Arrangement of a Registrant.
The disclosure contained in Item 1.01 is incorporated herein
in this Item 2.03 by reference.
SECTION 9 - FINANCIAL STATEMENTS AND EXHIBITS
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits.
Exhibit Number Description
-------------- -----------
99.1 Settlement Agreement between Cable Shipping
Inc. and Torch Offshore, LLC and Torch
Offshore, Inc. dated October 4, 2004
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly
authorized.
TORCH OFFSHORE, INC.
By: /s/ ROBERT E. FULTON
Date: October 6, 2004 ------------------------
Robert E. Fulton
Chief Financial Officer
EXHIBIT INDEX
Exhibit Number Description
-------------- -----------
99.1 Settlement Agreement between Cable Shipping
Inc. and Torch Offshore, LLC and Torch
Offshore, Inc. dated October 4, 2004
Exhibit 99.1
M/V "MIDNIGHT HUNTER" - CHARTERPARTY DATED 31ST MAY 2002
SETTLEMENT AGREEMENT
This Agreement is made this 4th day of October 2004,
BETWEEN:
1. CABLE SHIPPING INC, of 80 Broad Street, Monrovia,
Liberia ("Cable"); and
2. Torch Offshore, LLC ("Torch LLC") and Torch Offshore,
Inc ("Torch Inc") both of 401 Whitney Avenue, Suite 400,
Gretna, Louisiana, 70056, USA, (collectively "Torch").
Collectively, Cable, Torch LLC and Torch Inc shall be
referred to as the "Parties", and each a "Party".
WHEREAS
(a) The Parties are currently parties to an LMAA
Arbitration in London in relation to the "MIDNIGHT HUNTER"
charterparty dated 31st May 2002 (the "Arbitration") in
which Mark Hamsher is the Sole Arbitrator.
(b) Issues of liability in the Arbitration were determined
pursuant to an interim Award dated 5th November 2003
(pursuant to which certain sums were awarded in favour of
Cable), and a timetable set for the determination of issues
of quantum, with a hearing fixed for 13th - 19th October
2004.
(c) The Parties have, in the interim, agreed terms of
settlement.
IT IS HEREBY AGREED AS FOLLOWS:
1. The Parties agree that
1.1 Cable shall accept a total sum of US $6,304,254.59 (Six
Million Three Hundred and Four Thousand Two Hundred and
Fifty Four United States Dollars and Fifty Nine Cents) plus
a further sum of GBP14,539.28 (Fourteen Thousand Five Hundred
and Thirty Nine Pounds Sterling and Twenty-Eight Pence)
inclusive of interest and costs in full and final settlement
of all claims and counterclaims in this reference, such sums
being inclusive of all principal sums, interest and costs
awarded pursuant to the Interim Arbitration Award dated 5th
November 2003, and consisting of the sums specified in
paragraph 1.2 below.
1.2 In addition to the sums already paid on behalf of Torch
to Cable, consisting of:
(i) The US $2,204,254.59 which was paid on behalf of Torch
to Cable on 13th April 2004, and
(ii) The GBP14,539.28 which was paid on behalf of Torch to
Cable on 4th May 2004;
Torch shall upon the publication of the Final Consent
Award referred to in paragraph 1.3 below forthwith pay
a further sum of US $4,100,000 (Four Million One
Hundred Thousand United States Dollars) to Cable.
1.3 The Parties shall jointly request the Arbitrator to
issue on 19th November 2004 a Final Consent Award (which the
Parties hereby agree shall be final and unappealable) in the
form attached hereto at Appendix A.
1.4 On 19th November 2004, Torch shall pay all of the
Arbitrator's outstanding fees in respect of the Arbitration,
and the Arbitrator's costs in respect of the Final Consent
Award referred to in paragraph 1.3 above.
2. The Charterparty of the "MIDNIGHT HUNTER" concluded
between Cable and Torch Inc dated 28th January 2004
remains in full force and effect unamended and in full
accordance with all of its original provisions
(including for the avoidance of doubt the option price
pursuant to Clause 52 payable by Cable on 2nd September
2005 in the sum of USD 14,750,000.00).
3. Law and Jurisdiction
3.1 Governing Law
This Agreement shall in all respects be governed by and
interpreted in accordance with English law.
3.2 Jurisdiction
The Parties irrevocably agree that the Courts of
England are to have jurisdiction to settle any matters
which may arise out of or in connection with this
Agreement and that any proceedings arising out of or in
connection with this Agreement ("Proceedings") may be
brought in such Courts.
3.3 Alternative Jurisdictions
Nothing contained in this clause shall limit the right
of any Party to take Proceedings in any other court of
competent jurisdiction nor shall the taking of
Proceedings in one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction,
whether concurrently or not.
3.4 Waiver of Objections
Each of the Parties irrevocably waives any objection
which it may now or in the future have to the laying of
the venue of any Proceedings in any such court as is
referred to in this clause, and any claim that any such
Proceedings have been brought in an inconvenient or
inappropriate forum, and irrevocably agrees that a
judgment in any Proceedings brought in any such court
shall be conclusive and binding on it and may be
enforced in the courts of any other jurisdiction.
3.5 Service of Process
3.5.1 Without prejudice to the right of Cable to use any
other method of service permitted by law, Torch irrevocably
agrees that any Claim Form, Notice, Judgment or other legal
process shall be sufficiently served on it if addressed to
and left at or sent by pre-paid first class post to Clyde &
Co. of Beaufort House, Chertsey Street, Guildford Surrey,
GU1 4HA and in that event shall be conclusively deemed to
have been served on the next business day after the day it
was left at that address or, if posted, on the second
business day after it was posted.
3.5.2 Without prejudice to the right of Torch to use any
other method of service permitted by law, Cable irrevocably
agrees that any Claim Form, Notice, Judgement or other legal
process shall be sufficiently served on it if addressed to
and left at or sent by pre-paid first class post to Marine
Legal Services Limited of Gate House, 1 Farringdon Street,
London, EC4M 7NS and in that event shall be conclusively
deemed to have been served on the next business day after
the day it was left at that address or, if posted, on the
second business day after it was posted.
IN WITNESS WHEREOF the Parties have caused this Agreement to
be signed on their behalf as follows:
/s/ S.C. Brown
--------------
Marine Legal Services, on behalf of CABLE SHIPPING INC
/s/ Clyde & Co. (David Bennett)
-------------------------------
Clyde & Co, on behalf of TORCH OFFSHORE LLC
/s/ Clyde & Co. (David Bennett)
-------------------------------
Clyde & Co, on behalf of TORCH OFFSHORE INC
APPENDIX A
DRAFT FINAL CONSENT AWARD
IN THE MATTER OF THE ARBITRATION ACT 1996
AND IN THE MATTER OF AN ARBITRATION
BETWEEN:
CABLE SHIPPING INC.
Claimants/Owners
- and -
TORCH OFFSHORE LLC
First Respondents/Charterers
TORCH OFFSHORE INC.
Second Respondent
"MIDNIGHT HUNTER"
CHARTERPARTY DATED 31ST MAY 2002
----------------------------
FINAL CONSENT AWARD
----------------------------
WHEREAS:
1. By a Charterparty on a SUPPLYTIME 89 form dated
Salford, England 31st May 2002 the Claimants (hereinafter
referred to as "The Owners") chartered the "G MURRAY" to be
renamed the "MIDNIGHT HUNTER" to the First Respondents
(hereinafter referred to as "the Charterers") for a period
of 1,096 days.
2. By an amendment number 1 to the Charterparty dated 25th
June 2002 it was agreed that the Second Respondents
guaranteed "as primary obligors the Charterers' performance
with respect to all obligations, terms and conditions of the
above Charterparty".
3. The said Charterparty provided, inter alia, that it was
to be governed by English law and that should any disputes
arise between the parties, they were to be referred to
arbitration in London.
4. Disputes arose between the parties as detailed
hereafter. The parties appointed me, Mark William Hamsher
of 18c Ensign Street, London, E1 8JD, as the sole
arbitrator. The seat of the arbitration is in London.
5. The Charterers terminated the Charterparty on 24th
January 2003. Without prejudice to their right to claim
further damages or hire, the Owners claimed hire of more
than US $5,000,000. The Charterers denied liability for the
claim on the grounds that they had validly rescinded the
Charterparty for misrepresentation; they also counterclaimed
damages for misrepresentation, alternatively breach of
charter, such damages to be agreed or assessed at a future
date. Both parties also claimed interest and costs.
6. Issues of liability in this reference have been
determined pursuant to the Interim Arbitration Award dated
5th November 2003 pursuant to which certain sums were
awarded in favour of the Owners;
7. Issues of quantum were left to be determined at a
further hearing and a timetable set for the determination of
issues of quantum with a hearing fixed for 13th - 19th
October 2004; and
8. The Owners and the Charterers and the Second
Respondents having in the interim agreed to terms of
settlement
NOW I the said Mark William Hamsher, having taken upon
myself the burden of this reference, DO HEREBY MAKE ISSUE
AND PUBLISH this FINAL CONSENT AWARD as follows:-
(A) I AWARD AND ADJUDGE that Owners shall accept a total
sum of US $6,304,254.59 (Six Million Three Hundred and Four
Thousand Two Hundred and Fifty Four United States Dollars
and Fifty Nine Cents) plus a further sum of GBP14,539.28
(Fourteen Thousand Five Hundred and Thirty Nine Pounds
Sterling and Twenty-Eight Pence) inclusive of interest and
costs in full and final settlement of all claims and
counterclaims in this reference, such sums being inclusive
of all principal sums, interest and costs awarded pursuant
to the Interim Arbitration Award dated 5th November 2003,
and consisting of the sums specified in paragraph (B) below.
(B) In addition to the sums already paid by the Charterers
and the Second Respondents to the Owners, consisting of:
(i) The US $2,204,254.59 paid on behalf of the Charterers
and the Second Respondents to the Owners on 13th April 2004,
and
(ii) The GBP14,539.28 which was paid on behalf of the
Charterers and Second Respondents to the Owners on 4th May
2004,
the Charterers and Second Respondents shall forthwith
pay a further sum of US $4,100,000 (Four Million One
Hundred Thousand United States Dollars) to the Owners.
(C) The Charterers and/or the Second Respondents shall bear
the costs of this my Final Award.
(D) I DECLARE that this Award is FINAL as to the matters
herein determined.
GIVEN under my hand in London this 19th day of November
2004.
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SOLE ARBITRATOR WITNESS