Exhibit 4.1
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INVESTMENT AND REGISTRATION RIGHTS AGREEMENT
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INVESTMENT AND REGISTRATION RIGHTS AGREEMENT, dated December
19, 2000 (this "Agreement"), among SEACOR SMIT Inc., a Delaware corporation (the
"Company"), and the other persons signatory hereto (collectively, the "Holders"
and each, individually, a "Holder").
W I T N E S S E T H:
WHEREAS, pursuant to the transactions (the "Transactions")
contemplated by an Agreement and Plan of Merger dated as of December 19, 2000
(the "Merger Agreement") between the Company and SCF Corporation, a Delaware
corporation ("SCF"), SCF will merge with and into SEACOR and each Holder will
receive the number of shares of Common Stock (as hereinafter defined) and/or
options to acquire the number of shares of Common Stock set forth opposite his,
her or its name, as applicable, on Annex I hereto (such shares of Common Stock
to be received by Holders, together with the shares of Common Stock issuable
upon the exercise of the options referred to on Annex I hereto (the "Option
Shares"), are referred to herein collectively, as the "Shares");
WHEREAS, the Shares will be delivered to the Holders pursuant
to the Transactions without registration under the Securities Act in reliance on
an applicable exemption from such registration, and the Company and the Holders
desire to provide for the registration of the resale by the Holders of
Registrable Securities (as hereinafter defined) from time to time, upon the
terms and subject to conditions set forth below; and
WHEREAS, it is intended by the Company and the Holders that
this Agreement shall become effective immediately upon, and only upon, the
Effective Date (as defined in the Merger Agreement).
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto, intending to be legally
bound, hereby agree as follows:
Section 1. Certain Other Definitions. In addition to capitalized terms defined
elsewhere herein, as used in this Agreement, the following capitalized terms (in
their singular and plural forms, as applicable) have the following meanings:
"Business Day" means any day on which commercial banks are
open for business in the City of New York, Borough of Manhattan.
"Commission" means the United States Securities and Exchange
Commission and any successor United States federal agency or governmental
authority having similar powers.
"Common Stock" means the common stock, $.01 par value, of the
Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
The terms "register," "registered" and "registration" means a
registration effected by preparing and filing with the Commission a registration
statement on an appropriate form in compliance with the Securities Act, and the
declaration or order of the Commission of the effectiveness of such registration
statement under the Securities Act.
"Registrable Securities" means the Shares and any other
securities issued by the Company to the Holders at any time after the closing of
the Transactions in respect of the Shares (and in respect of the Common Stock
generally) by means of exchange, reclassification, dividend, distribution, split
up, combination, subdivision, recapitalization, merger, spin-off, reorganization
or otherwise; provided, however, that as to any Registrable Securities, such
securities shall cease to constitute the same for purposes of this Agreement if
and when (i) a registration statement with respect to the sale of such
securities shall have been declared effective by the Commission and such
securities shall have been sold pursuant thereto in accordance with the intended
plan and method of distribution therefor set forth in the final prospectus
forming part of such registration statement; (ii) such securities shall have
been sold in satisfaction of all applicable resale provisions of Rule 144 under
the Securities Act; (iii) as expressed in an opinion of independent counsel
delivered and satisfactory to the Company and the transfer agent for the Common
Stock, such securities may be resold pursuant to Rule 144(k) under the
Securities Act (or any successor provision) or all of such Holder's Registrable
Securities may be resold in a single ninety (90) day period under Rule 144 of
the Securities Act and do not require qualification under any state securities
or "blue sky" law then in effect, or the use of an applicable exemption
therefrom and, in each case, the Company has notified the transfer agent for the
Common Stock that any restrictive legend on such Shares may be removed in
connection with a transfer thereof; or (iv) such securities cease to be issued
and outstanding for any reason and, provided further, that Option Shares shall
cease to constitute Registrable Securities if and when, and for so long as, a
registration statement on Form S-8 (or any applicable successor form) with
respect to the Option Shares shall be effective under the Securities Act.
"Registration Expenses" means all expenses incurred by the
Company in complying with Section 4 hereof, including, without limitation, all
registration and filing fees (including fees and expenses associated with
filings required to be made with the National Association of Securities Dealers,
Inc. and any national securities exchange or U.S. automated inter-dealer
quotation system of a registered national securities association on which the
Common Stock is listed or otherwise admitted to unlisted trading privileges),
printing expenses, if any (including expenses of printing certificates for the
Common Stock being registered in a form eligible for deposit with The Depository
Trust Company and of printing registration statements and prospectuses), fees
and disbursements of counsel for the Company, fees and expenses of compliance
with state securities or "blue sky" laws (including reasonable fees and expenses
of one firm of counsel for underwriters, if any, in connection with "blue sky"
qualifications of the Registrable Securities being registered and the
determination of eligibility for investment under the laws of such jurisdictions
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designated by the underwriters, if any), accountants' fees and expenses
(including the expenses of any special audits or "comfort" letters incident to
or required by any such registration), transfer taxes, fees of transfer agents
and registrars, and fees and disbursements of underwriters customarily paid by
issuers or sellers of securities, but excluding underwriting discounts and
commissions and broker-dealer concessions and allowances and marketing expenses.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder.
"Significant Subsidiary" has the meaning ascribed to such term
in Rule 1-02(w) of Regulation S-X under the Securities Act and the Exchange Act.
"Underwritten Offering" means a registration under the
Securities Act pursuant to which securities of the Company are sold to an
underwriter for reoffering and distribution to the public.
Section 2. Representations and Warranties of Holders. Each Holder severally (and
not jointly) hereby represents, acknowledges, covenants and agrees as follows:
(i) the Shares are being acquired for such Holder's own account for investment
purposes only and not with a view to any public resale, public distribution or
public offering thereof within the meaning of the Securities Act or any state
securities or "blue sky" law; (ii) to the knowledge of such Holder, the Shares
have not been registered under the Securities Act or any state securities or
"blue sky" law; (iii) such Holder either is an "accredited investor" within the
meaning of Rule 501 of Regulation D under the Securities Act, or (alone or
together with such Holder's purchaser representative, if any), has such
knowledge and experience in financial and business matters that such Holder is
capable of evaluating the relative merits and risks of the prospective
investment in the Shares and able to bear the economic consequences thereof;
(iv) such Holder will not offer for sale, sell or otherwise transfer any of the
Shares (or any interest therein) except pursuant to a Shelf Registration
Statement as contemplated hereby or pursuant to an exemption from the
registration requirements of the Securities Act and any applicable state
securities or "blue sky" laws and, in the case of an offer to sell, sale or
other transfer pursuant to such an exemption, the Company has received (or
waived the requirement therefor) a written opinion of U.S. counsel in form and
substance satisfactory to it to the effect that such disposition is exempt from
such registration requirements, provided that such Holder, prior to effecting
any transfer of Shares pursuant to such an exemption, will cause the intended
transferee of the Shares to agree to take and hold such Shares subject to the
terms and conditions of this Agreement (and, in that connection, to execute and
deliver to the Company such agreements and instruments as the Company reasonably
may request to evidence the same), and further acknowledges that the
certificates evidencing such Shares are required to have endorsed thereon a
legend to the effect set forth in Section 3(a) hereof; (v) in making such
Holder's decision to invest in the Registrable Securities, such Holder has
relied upon independent investigations made by such Holder and, to the extent
believed by him or it to be appropriate, has relied on investigations made by
such Holder's representatives, including such Holder's own legal, accounting,
investment, financial, tax and other professional advisors; (vi) such Holder has
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been furnished and has been afforded an opportunity to review the Company's 1999
Annual Report, the Company's Proxy Statement for use in connection with its 2000
Annual Meeting of Stockholders, the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1999 and the Company's Quarterly Reports on Form
10-Q for the fiscal quarters ended March 31, June 30 and September 30, 2000
(collectively, the "Public Reports"); and (vii) such Holder and such Holder's
purchaser representatives, as applicable, have been given the opportunity to
examine all documents, including the Public Reports, and to ask questions of,
and to receive answers from, the Company and its representatives concerning the
terms of the Transactions and such Holder's investment in the Shares.
Section 3. Restrictions on Transfer. Each certificate
representing the Shares shall have endorsed thereon a legend in substantially
the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY STATE SECURITIES LAW, AND MAY NOT BE TRANSFERRED, SOLD
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
UNLESS PURSUANT TO AN AVAILABLE EXEMPTION THEREFROM. IN ALL
CASES, SUCH SHARES MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH
THE CONDITIONS SPECIFIED IN THE INVESTMENT AND REGISTRATION
RIGHTS AGREEMENT DATED DECEMBER 19, 2000, AMONG THE COMPANY
AND THE STOCKHOLDERS PARTY THERETO, A COPY OF WHICH IS
AVAILABLE FOR INSPECTION AT THE PRINCIPAL EXECUTIVE OFFICES OF
THE COMPANY AND WILL BE FURNISHED TO THE HOLDER HEREOF WITHOUT
CHARGE, UPON WRITTEN REQUEST TO SEACOR SMIT INC., 00000
XXXXXXXX XXXXXX, XXXXX 000, XXXXXXX, XXXXX 00000, ATTENTION:
SECRETARY."
Section 4. Registration under Securities Act, etc.
(a) Shelf-Registration.
(i) General. The Company shall prepare and file with
the Commission as soon as practicable and in no event later than 60 days after
the Effective Date, a registration statement on Form S-3 (or on another
appropriate form under the Securities Act then available for use by the Company
in connection with a secondary offering of the Registrable Securities pursuant
to Rule 415 under the Act) relating to the resale, from time to time, of the
Registrable Securities by the Holders in accordance with the plan and method of
distribution set forth in the prospectus forming part of such registration
statement (a "Shelf Registration Statement"), and shall use its reasonable best
efforts to cause the Shelf Registration Statement to be declared effective by
the Commission as soon as reasonably practicable thereafter. It is understood
and agreed that the Shelf Registration Statement may have included therein
shares of Common Stock offered for sale, from time to time, by holders of Common
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Stock other than the Holders and also may relate to a primary offering of Common
Stock by the Company.
(ii) Effective Period. The Company agrees to use its
best efforts to keep the Shelf Registration Statement continuously effective
(subject to Suspension Periods (defined below) and extensions coincident with
the length of such Suspension Periods) from the date the Shelf Registration
Statement was first declared effective by the Commission until the first to
occur of the date on which (A) the Shares (including any Options Shares) and any
other securities issued to the Holders at any time after the closing of the
Transactions in respect of the Shares (by means of exchange, reclassification,
dividend, distribution, split up, combination, subdivision, recapitalization,
merger, spin-off, reorganization or otherwise) cease to be Registrable
Securities and (B) the date on which all their Registrable Securities covered by
the Shelf Registration Statement have been sold thereunder in accordance with
the plan and method of distribution intended by each Holder and as disclosed in
the prospectus forming part of the Shelf Registration Statement (the "Effective
Period"). For purposes hereof, "Suspension Period" shall mean a period of time
commencing on the date on which the Company provides notice that the Shelf
Registration Statement is no longer effective, that the prospectus included in
the Shelf Registration Statement no longer complies with the requirements
therefor prescribed by Section 10(a) of the Securities Act, or that the Company
in its reasonable, good faith judgment, for valid business purposes (including,
without limitation, in connection with a proposed or pending issuance or sale of
the Company's debt or equity securities by the Company or any other Person or a
proposed or pending merger, reorganization, consolidation, recapitalization,
public offering, sale of assets or other extraordinary corporate transaction,
whether or not publicly announced, involving the Company or any of its
Significant Subsidiaries) has elected to require the suspension of the sale by
Holders of their Registrable Securities pursuant to the Shelf Registration
Statement, and shall end on the date when each Holder of Registrable Securities
either receives copies of the supplemented or amended prospectus contemplated by
Section 4(b)(v) plus an additional five Business Days or otherwise is advised in
writing by the Company that use of the prospectus may be resumed; provided,
however, that no such Suspension Period shall exceed 120 consecutive days or
more than 180 days during any period of 360 consecutive days. Each Holder agrees
that it will not sell any Registrable Securities pursuant to the Shelf
Registration Statement during any Suspension Period and the Company agrees to
cause each Suspension Period to end as soon as reasonably practicable. The
Company agrees that no other similarly situated holder of the Company's Common
Stock will be permitted to sell Shares of the Company's Common Stock pursuant to
a shelf registration statement during a Suspension Period. If one or more
Suspension Periods occur, the Effective Period shall be extended by such number
of days coincident with the aggregate number of days included in all Suspension
Periods.
(b) Registration Procedures. The Company shall:
(i) cause any registration statement filed pursuant
to Section 4 hereof and the related prospectus and any amendment or supplement
thereto, as of the effective date of such registration statement, amendment or
supplement, (A) to comply in all material respects with the applicable
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requirements of the Securities Act and the rules and regulations of the
Commission promulgated thereunder and (B) not to contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading;
(ii) prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be necessary to keep
such registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
covered by such registration statement during the Effective Period; and will
furnish to each Holder a copy of any amendment or supplement to such
registration statement or prospectus prior to filing the same with the
Commission and shall not file any such amendment or supplement to which any such
requesting Holder shall reasonably have objected to in writing on the grounds
that such amendment or supplement does not comply in all material respects with
the requirements of the Securities Act or of the rules or regulations thereunder
or otherwise inaccurately describes information pertaining to such Holder;
(iii) furnish to each requesting Holder such number
of conformed copies of such registration statement and of each such amendment
and supplement thereto (in each case including all exhibits thereto), such
number of copies of the prospectus included in such registration statement
(including each preliminary prospectus), such number of the documents, if any,
incorporated by reference in such registration statement or prospectus, and such
number of other documents, as such requesting Holder reasonably may request;
(iv) use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under such
securities or "blue sky" laws of the states of the United States as each
requesting Holder reasonably shall request, to keep such registration or
qualification in effect for so long as such registration statement remains in
effect, and to do any and all other acts and things which may be necessary or
advisable to enable such requesting Holder to consummate the disposition in such
jurisdictions of his or its Registrable Securities covered by such registration
statement, except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any jurisdiction in
which it is not and would not, but for the requirements of this Section
4(b)(iv), be obligated to be so qualified, or to subject itself to taxation in
any such jurisdiction, or to consent to general service of process in any such
jurisdiction;
(v) immediately notify each Holder, at any time when
a prospectus or prospectus supplement relating thereto is required to be
delivered under the Securities Act, upon discovery that, or upon the occurrence
of any event as a result of which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, which untrue statement or omission requires amendment of
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the registration statement or supplementing of the prospectus, and, at the
request of such requesting Holder, prepare and furnish to such requesting Holder
a reasonable number of copies of a supplement to such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that with respect to
Registrable Securities registered pursuant to such registration statement each
Holder agrees that such Holder will not sell any Registrable Securities pursuant
to such registration statement during the time after the furnishing of the
Company's notice that the Company is preparing and filing with the Commission a
supplement to or an amendment of such prospectus or registration statement and
such period shall be a Suspension Period for purposes of determining the
Effective Period hereunder;
(vi) use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to
holders of its securities, as soon as reasonably practicable, an earnings
statement covering the period of at least 12 months, but not more than 18
months, beginning with the first month of the first fiscal quarter after the
effective date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act; and
(vii) provide and cause to be maintained a transfer
agent and registrar for the Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
registration statement; it being hereby agreed that each Holder of Registrable
Securities shall furnish to the Company such information regarding such Holder
and the plan and method of distribution of Registrable Securities intended by
such Holder as the Company may from time to time reasonably request in writing
and as shall be required by law or by the Commission in connection therewith.
(c) Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement registering
Registrable Securities under the Securities Act as contemplated by this
Agreement, the Company shall give each Holder, its underwriters, if any, and
each Holder's counsel and accountants, the opportunity to review the Company's
preparation of such registration statement, each prospectus included in such
registration statement or filed with the Commission and each amendment or
supplement thereto, and the Company will give such person or persons such
reasonable access to the Company's books and records and such opportunities to
discuss the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary
for each such Holder and persons to conduct a reasonable investigation within
the meaning of Section 11 of the Securities Act. To minimize disruption and
expense to the Company during the course of the registration process, each
Holder shall use its reasonable best efforts to coordinate its investigation and
due diligence efforts and, to the extent practicable, will act through a single
firm of counsel and a single firm of accountants and, if requested by the
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Company, will enter into confidentiality agreements with the Company in a form
satisfactory to the Company.
(d) Indemnification.
(i) Indemnification by the Company. The Company shall
indemnify and hold harmless each Holder of Registrable Securities covered by any
registration statement filed pursuant to this Agreement, and any underwriter or
selling agent selected by one or more Holders with the consent of the Company
with respect to such Registrable Securities, the directors, trustees and
officers, and each other person, if any, who controls such Holder, underwriter
or selling agent within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act against any losses, claims, damages, liabilities
or expenses (each a "Loss" and collectively "Losses"), joint or several, to
which such Holder or any such persons may become subject under the Securities
Act or otherwise, to the extent that such Losses (or related actions or
proceedings) arise out of or are based upon (A) any untrue statement or alleged
untrue statement of any material fact contained in an effective registration
statement in which such Registrable Securities were included for registration
under the Securities Act, any preliminary prospectus if used prior to the
effective date of the registration statement (unless such statement is corrected
in the final prospectus and the Company previously furnishes copies thereof to
any Holder of Registrable Securities seeking indemnification pursuant to this
Section 4(d), final prospectus (as supplemented, if the Company shall have filed
with the Commission any supplement thereto) if used during the period in which
the Company is required to keep the registration statement to which such
prospectus relates current and otherwise in compliance with Section 10(a) of the
Securities Act, or (B) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the Company shall have no obligation to
provide any indemnification hereunder if any such Losses (or actions or
proceedings in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement, preliminary prospectus or final prospectus, as the
case may be, in reliance upon and in conformity with written information
furnished to the Company by such Holder for inclusion in such registration
statement; and provided, further, that the Company shall have no obligation to
provide any indemnification hereunder if any such Losses arise out of or are
based upon an untrue statement or alleged untrue statement or omission or
alleged omission in any preliminary prospectus, if such untrue statement or
alleged untrue statement or omission or alleged omission shall have been
corrected in the final prospectus and such Holder or any such other person shall
have failed to deliver such final prospectus prior to or concurrently with the
sale of the Registrable Securities covered by a registration statement to the
individual or entity asserting such Losses after the Company shall have
furnished each such Holder or any such other person with a sufficient number of
copies thereof in a manner and at a time sufficient to permit delivery of the
same. The indemnity provided in this Section 4(d)(i) shall remain in full force
and effect regardless of any investigation made by or on behalf of such Holder
or any such other person and shall survive the transfer of the Registrable
Securities by such Holder or any such other person.
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(ii) Indemnification by the Holders. Each Holder and
each other person who controls such Holder within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, shall indemnify and hold
harmless (in the same manner and to the same extent as set forth in Section
4(f)(i) hereof) the Company, each director of the Company, each officer of the
Company who shall sign such registration statement and each other person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, with respect to any untrue statement in
or omission from any registration statement filed by the Company pursuant to
this Agreement, any preliminary prospectus or any final prospectus included in
such registration statement, or any amendment or supplement to such registration
statement or prospectus, as the case may be, of a material fact if such
statement or omission was made in reliance upon and in conformity with written
information furnished to the Company or any of its representatives by such
Holder or such other person, if any, who controls such Holder within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act for
inclusion in such registration statement, preliminary prospectus or final
prospectus, as the case may be.
(iii) Notice of Claims, etc. Promptly after receipt
by an indemnified party of notice of the commencement of any action or
proceeding (an "Action") involving a claim referred to in Sections 4(d)(i) and
4(d)(ii) hereof, such indemnified party shall, if indemnification is sought
against an indemnifying party, give written notice to the indemnifying party of
the commencement of such action; provided, however, that the failure of any
indemnified party to give said notice shall not relieve the indemnifying party
of its obligations under Sections 4(d)(i) or 4(d)(ii) hereof, except to the
extent that the indemnifying party is actually and materially prejudiced by such
failure. In case an Action is brought against any indemnified party, and such
indemnified party notifies an indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party. Notwithstanding
the foregoing, the indemnified party shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party, unless (A) the employment of such counsel
shall have been authorized in writing by the indemnifying party, (B) the
indemnifying party shall not have employed counsel (reasonably satisfactory to
the indemnified party) to take charge of the defense of such Action, within a
reasonable time after notice of the commencement thereof, or (C) such
indemnified party reasonably shall have concluded that there may be defenses
available to it which are different from or additional to those available to the
indemnifying party which, if the indemnifying party and the indemnified party
were to be represented by the same counsel, could result in a conflict of
interest for such counsel or materially prejudice the prosecution of the
defenses available to such indemnified party. If either of the events specified
in clauses (A), (B) or (C) of the preceding sentence shall have occurred or
otherwise shall be applicable, then the fees and expenses of one counsel (or
firm of counsel) selected by a majority in interest of the indemnified parties
(measured by reference to their ownership of Registrable Securities) shall be
borne by the indemnifying party. If, in any case, the indemnified party employs
separate counsel, the indemnifying party shall not have the right to direct the
defense of such action on behalf of the indemnified party. Anything in this
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Section 4(d)(iii) to the contrary notwithstanding, an indemnifying party shall
not be liable for the settlement of any action effected without its prior
written consent (which consent in the case of an action exclusively seeking
monetary relief shall not unreasonably be withheld or delayed) or if there be a
final judgment adverse to the indemnified party, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior consent of the indemnified party, consent to entry of any judgment or
enter into any settlement that does not include as a term thereof the
unconditional release of the indemnified party from all liability in respect of
such claim or litigation.
(iv) Contribution. If the indemnification provided
for in this Section 4 is unavailable or insufficient to hold harmless an
indemnified party in respect of any Losses, then each indemnifying party shall,
in lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party, as a result of such Losses in such proportion
as appropriate to reflect the relative fault of the indemnifying party, on the
one hand, and the indemnified party, on the other hand, and to the parties'
relative intent, knowledge, access to information and opportunity to correct or
mitigate the damage in respect of or prevent any untrue statement or omission
giving rise to such indemnification obligation. The Company and each Holder
agree that it would not be just and equitable if contributions pursuant to this
Section 4(d)(iv) were determined by pro rata allocation or by any other method
of allocation which did not take account of the equitable considerations
referred to above. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation.
(v) Indemnification Payments. Periodic payments of
amounts required to be paid pursuant to this Section 4 shall be made during the
course of the investigation or defense, as and when reasonably itemized bills
therefor are delivered to the indemnifying party in respect of any particular
Loss, damage or liability that is incurred.
(vi) Limitation on Holder's Payments. Notwithstanding
any provision of this Agreement to the contrary, the liability of each Holder of
Registrable Securities under this Section 4(d) shall in no event exceed the net
proceeds received by such Holder from the sale of Registrable Securities covered
by the registration statement giving rise to such liability.
(vii) Adjustment of Liability. Any indemnifiable Loss
under this Section 4 shall be reduced by any tax benefit accruing to the
indemnified party on account of the indemnification payment and by the amounts
actually recovered by the indemnified party from its insurance carriers in
respect of such Loss, and any amounts recovered by such party subsequent to the
payment by the indemnifying party hereunder with respect to the same claim shall
be remitted to such indemnifying party, except that such remittance shall not
exceed the amount of the indemnification payment made by such indemnifying
party.
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(e) Registration Expenses. The Company shall bear all
Registration Expenses incurred in connection with the performance of its
obligations under Section 4 of this Agreement.
Section 5. Rule 144. The Company shall comply with the
requirements of Rule 144(c) under the Securities Act, as such Rule may be
amended from time to time (or any similar rule or regulation hereafter adopted
by the Commission), regarding the availability of current public information to
the extent required to enable each Holder to sell Registrable Securities without
registration under the Securities Act pursuant to the resale provisions of Rule
144 (or any similar rule or regulation). Upon the request of a Holder, the
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements and, upon a Holder's compliance with the
applicable provisions of Rule 144, will take such action as may be required
(including, without limitation, causing legal counsel to issue an appropriate
opinion) to cause its transfer agent to effectuate any transfer of Registrable
Securities properly requested by such Holder, in accordance with the terms and
conditions of Rule 144.
Section 6. Amendments and Waivers. This Agreement may be
amended or modified and the Company may take any action herein prohibited, or
omit to perform any act herein required to be performed by it, only if the
Company shall have obtained the written consent to such amendment, modification,
action or omission to act, of each Holder. Each Holder shall be bound by any
consent authorized by this Section 6, whether or not such Registrable Securities
shall have been marked to indicate such consent.
Section 7. Notices. All notices, communications and deliveries
required or permitted by this Agreement shall be made in writing signed by the
party making the same, shall specify the Section of this Agreement pursuant to
which it is given or being made and shall be deemed given or made (i) on the
date delivered if delivered by telecopy or in person, (ii) on the third Business
Day after it is mailed if mailed by registered or certified mail (return receipt
requested) (with postage and other fees prepaid) or (iii) on the day after it is
delivered, prepaid, to an overnight express delivery service that confirms to
the sender delivery on such day, as follows:
(a) if to the Holders, at their respective addresses listed on
Annex I hereto; and
(b) if to the Company, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Xxxxx X. Gran, Esq., Telecopy No.: (000) 000-0000;
or to such other representative or at such other address of a party as such
party hereto may furnish to the other parties in writing. If notice is given
pursuant to this Section 7 of any assignment to a permitted successor or assign
of a party hereto, the notice shall be given as set forth above to such
successor or assign of such party.
Section 8. Secretary to Retain Copy. A copy of this Agreement,
including all Exhibits hereto, shall be filed with the Secretary of the Company,
11
and the Secretary shall make it available to each Holder of Registrable
Securities at all reasonable times during normal business hours.
Section 9. Entire Agreement. This Agreement embodies the
entire agreement and understanding between the Company and each Holder in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to the
subject matter of this Agreement.
Section 10. Governing Law. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York
(other than its rules of conflicts of laws to the extent the application of the
laws of another jurisdiction would be required thereby).
Section 11. Severability. If any provision of this Agreement
or the application thereof to any person or circumstances is determined by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions hereof, or the application of such provision to persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination, the parties shall negotiate in
good faith in an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties.
Section 12. Termination. The rights and obligations under this
Agreement shall automatically terminate upon the earlier to occur of (a) all
Shares issued to the Holders pursuant to the Transactions cease to be
Registrable Securities and (b) the end of the Effective Period, as the same may
be extended pursuant to Sections 4(a)(ii) and 4(a)(iii) hereof.
Section 13. Miscellaneous. The Company shall not after the
date of this Agreement enter into any agreement with respect to the Common Stock
which violates the rights granted to each Holder in this Agreement. The headings
in this Agreement are for purposes of reference only and shall not limit or
otherwise affect the meaning of this Agreement. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original,
but all of which, when taken together, shall constitute one and the same
instrument.
Section 14. Effectiveness. Notwithstanding anything contained
herein to the contrary, this Agreement shall become effective upon, and only
upon, the Effective Date (as defined in the Merger Agreement). If the Merger
Agreement is terminated prior to the Effective Date (as defined therein), then
this Agreement shall be of no force or effect.
* * *
12
IN WITNESS WHEREOF, the parties have executed this Investment
and Registration Rights Agreement to be effective for all purposes as of the
Merger Agreement Effective Date.
SEACOR SMIT INC.
----------------
By: /s/Xxxxx X. Gran
--------------------------------------------
Name: Xxxxx X. Gran
Title: Vice President and General Counsel
HOLDERS
-------
VSS HOLDING CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
FABRIKANT INTERNATIONAL CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
XXXXXX XXXXXXXXX TRUST U/A/D 12/16/75
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Trustee
XXXX XXXXXXXXX TRUST U/A/D 12/22/81
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Trustee
Signature Page 1 of 3
to Registration Rights Agreement
WINDCREST PARTNERS, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: General Partner
Signature Page 2 of 3
to Registration Rights Agreement
/s/Xxxxxxx Xxxxx /s/Xxxxxxxx Xxxxxx
---------------- ------------------
Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx
/s/Xxxxxxxx Xxxx Xxxxxxxx /s/Xxxxx Xxxxxx
------------------------- ---------------
Xxxxxxxx Xxxx Xxxxxxxx Xxxxx Xxxxxx
/s/Xxxxxxxxx Xxxxxx /s/Xxxxx Xxxxxx
------------------- ---------------
Xxxxxxxxx Xxxxxx Xxxxx Xxxxxx
/s/Xxxxxxx Xxxxxxxxx /s/Xxxxxx Xxxxxx
-------------------- ----------------
Xxxxxxx Xxxxxxxxx Xxxxxx Xxxxxx
/s/Xxxx X. Xxxxxx /s/Xxxxxx Xxxx
----------------- --------------
Xxxx X. Xxxxxx Xxxxxx Xxxx
/s/Xxxx Xxxxxxx /s/Xxxxxx Xxxxx
--------------- ---------------
Xxxx Xxxxxxx Xxxxxx Xxxxx
/s/Xxxxxx X. Xxxxxxx /s/Xxxx Xxxxxx
-------------------- --------------
Xxxxxx X. Xxxxxxx Xxxx Xxxxxx
/s/Xxxxxx Xxxxx /s/ Xxxxxxx Xxxxxx
--------------- ------------------
Xxxxxx Xxxxx Xxxxxxx Xxxxxx
Signature Page 3 of 3
to Registration Rights Agreement
