Exhibit 4.1
INVESTMENT AND REGISTRATION RIGHTS AGREEMENT
INVESTMENT AND REGISTRATION RIGHTS AGREEMENT, dated April
19, 2000 (this "Agreement"), among SEACOR SMIT Inc., a Delaware corporation (the
"Company"), and the persons listed on the signature pages hereof (collectively,
the "Holders" and each, a "Holder").
W I T N E S S E T H :
WHEREAS, pursuant to the transactions (the "Transactions")
contemplated by an agreement among the Company and the Holders dated the date
hereof, the Company is acquiring all of the equity interests in Putford
Enterprises Limited ("Putford") from the Holders; and
WHEREAS, pursuant to the Transactions, each Holder shall
receive the number of shares (the "Shares") of Common Stock (as hereinafter
defined) set forth opposite his, her or its name, as applicable, on Annex I
hereto;
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 the issuance and sale to
the Holders of Shares pursuant to the Transactions.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants herein contained, the parties hereto, intending to be legally
bound, hereby agree as follows:
Section 1. Certain Other Definitions. All capitalized terms used but not defined
in this Agreement have the respective meanings ascribed to such terms in the
XxXxxx Merger Agreement. 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, $0.01 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 issued to the
Holders pursuant to the Transactions 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.
"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"
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qualifications of the Registrable Securities being registered and the
determination of eligibility for investment under the laws of such jurisdictions
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, 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
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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
been furnished and has been afforded an opportunity to review the Company's 1999
Annual Report and the Company's Proxy Statement for use in connection with its
2000 Annual Meeting of Stockholders (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 APRIL __, 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 30 days) after the issuance to the Holders of the Shares pursuant to
the Transactions, 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
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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
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 issued to the Holders pursuant to the Transactions 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
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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
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
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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
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.
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(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
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
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(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.
(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
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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
Action 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
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 which 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 Company, 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
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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 Seller'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.
(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.
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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: Xx. Xxxxxxx Xxxxx, 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, 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
12
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.
13
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed and delivered as of the date first above written.
SEACOR SMIT INC.
By: /s/ Xxxxx Gran
-----------------------------------------
Name: Xxxxx Gran
Title: Vice President and General Counsel
/s/ Xxxxx Xxxxxx
--------------------------------------
Xxxxx Xxxxxx
/s/ N I Xxxxxx
--------------------------------------
N I Xxxxxx
Signed for and on behalf of the HOLDERS
listed below by Xxxxx Xxxxxx:
/s/ Xxxxx Xxxxxx
--------------------------------------
J R Hashim
X X Xxxxxx
Xxxxxxx Xxxxxx
X X Xxxxxx
Xx. X X Xxxxxx
G A Catchpole
X X Xxxxxxxxx
X X Xxxxxxxxx
Xxx X X Xxxxxxxxx
X X Xxxxxxxxx
14
Xxxxxx Xxxxxxxxx Settlement
Xxxxxx Xxxxxxxxx Settlement
Xxxx Xxxxx Settlement
N E Xxxxxxxxx
X X Xxxxxxxxx
Xxx X X Xxxxxx
X X Xxxxx
Mrs A Catchpole
G A Catchpole Trust
X X Xxxxxxxxx Trust
Xxxx X X Xxxxxxxxx
Xxxx X X Xxxxxxxxx
Xxx X X Xxxxxxxxx
Xxx X X Xxxxxxxxx
N D Xxxxxxxxx
Xxx X X Xxxxxxx
15
ANNEX I
TO THE INVESTMENT AND
REGISTRATION RIGHTS AGREEMENT
---------------------------------- ------------------------- ------------------------ -----------------------
HOLDERS: SHARES:
---------------------------------- ------------------------- ------------------------ -----------------------
J R Hashim 129
Xxx Xxxxx
Xxxxxxxxxx
Xxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
X X Xxxxxx 17,157
Odinhahl
Xxxxxx Xxxx
Xxxxxxxxxx
Xxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
X X Xxxxxx 11,025
Xxx Xxxxx
Xxxxxxxxxx
Xxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
Xxxxxxx Xxxxxx Settlement 9,065
Xxxxxxxxxx Xxxxx
Xxxxxxx
Xxxx Xxxxxxxx
Xxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
X X Xxxxxx 6,185
Xxxxxxxxxx Xxxxx
Xxxxxxx
Xxxx Xxxxxxxx
Xxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
Xx X X Xxxxxx 6,172
Zomerlaan
2103 AG Heemstede
Holland
---------------------------------- ------------------------- ------------------------ -----------------------
G A Catchpole 3,576
`Xxxxxxx'
Broadview Raod
Xxxxxx Xxxxx
Xxxxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
16
---------------------------------- ------------------------- ------------------------ -----------------------
X X Xxxxxxxxx 4,859
`Kessett'
Xxxxxxxxx Xxxx
Xxxxxx Xxxxx
Xxxxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
X X Xxxxxxxxx 4,859
`Waveney House'
Priory Road
St Olaves
Great Yarmouth
Norfolk NR31 9HQ
---------------------------------- ------------------------- ------------------------ -----------------------
Xxx X X Xxxxxxxxx 642
`Xxxxxxx'
Broadview Raod
Xxxxxx Xxxxx
Xxxxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
X X Xxxxxxxxx 4,715
`Waterfront'
0 Xxxxxx Xxxx
Xxxxxx Xxxxx
Xxxxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
Xxxxxx Xxxxxxxxx Settlement 2,744
M M & Xxx X X Xxx
Xxxxx & Xxxxx
0-0 Xxxxxxx Xxxxxx
Xxxxxxx
Xxxxxxx XX0 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
Xxxxxx Xxxxxxxxx Settlement 2,746
Mr & Xxx X X Xxx
Xxxxx & Xxxxx
0-0 Xxxxxxx Xxxxxx
Xxxxxxx
Xxxxxxx XX0 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
17
---------------------------------- ------------------------- ------------------------ -----------------------
Xxxx Xxxxx Settlement 999
Mr & Xxx X X Xxx
Xxxxx & Xxxxx
0-0 Xxxxxxx Xxxxxx
Xxxxxxx
Xxxxxxx XX0 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
N E Xxxxxxxxx 1,375
Xxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
X X Xxxxxxxxx 1,664
Xxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
N I Xxxxxx 1,059
00 Xxxxxx Xxxx
Xxxxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
Xxx X X Xxxxxx 466
16 Oulton Street
Xxxxxx Xxxxxxx
Xxxxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
X X Xxxxx 466
`Oaklands'
Xxxxxx Xxxx
Xx Xxxxxx
Xxxxx Xxxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
Mrs A Catchpole 707
`Waterfront'
0 Xxxxxx Xxxx
Xxxxxx Xxxxx
Xxxxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
G A Catchpole Trust 642
`Xxxxxxx'
Broadview Raod
Xxxxxx Xxxxx
Xxxxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
18
---------------------------------- ------------------------- ------------------------ -----------------------
X X Xxxxxxxxx Trust 642
`Xxxxxxx'
Broadview Raod
Xxxxxx Xxxxx
Xxxxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
Xxxx X X Xxxxxxxxx 366
000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
Xxxx X X Xxxxxxxxx 397
000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
Xxx X X Xxxxxxxxx 241
000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
Xxx X X Xxxxxxxxx 000
Xxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
N D Xxxxxxxxx 00
Xxxxxxxxxxxxx Xxxx
Xxxxxx Xxxxxx
Xxxxxxxxxxx
Xxxxxxx
Xxxxxxx XX00 0XX
---------------------------------- ------------------------- ------------------------ -----------------------
19
---------------------------------- ------------------------- ------------------------ -----------------------
Xxx X X Xxxxxxx 000
Xxxxxxx Xxxxxxx
Xxxx Farm
Swaffham
Norfolk PE36 9PY
---------------------------------- ------------------------- ------------------------ -----------------------
---------------------------------- ------------------------- ------------------------ -----------------------
TOTALS 83,615
---------------------------------- ------------------------- ------------------------ -----------------------
20
