LICENSE AGREEMENT
LICENSE AGREEMENT, dated as of December 19, 1996, by and
among SEACOR Holdings, Inc., a Delaware corporation ("SEACOR"), the
Subsidiaries of SEACOR listed as Licensees on the signature pages
hereto (together with SEACOR, the "Licensees"), and SMIT
Internationale N.V., a corporation organized under the laws of The
Netherlands ("SMIT" or the "Licensor").
W I T N E S S E T H :
WHEREAS, pursuant to the terms of a certain Asset Purchase
Agreement of even date herewith (the "Purchase Agreement") by and
among the Licensor, certain subsidiaries of the Licensor and the
Licensees, the parties have agreed to enter into this Agreement at the
time of the Closing under the Purchase Agreement; and
WHEREAS, the Licensees desire to license from the Licensor
certain rights upon the terms and subject to the conditions hereof.
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
Section 1. Definitions. Capitalized terms used but not
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defined herein shall have the respective meanings ascribed to them in
the Purchase Agreement and the Indenture, dated as of
November 1, 1996, between SEACOR and First Trust National Association,
as trustee (the "Indenture").
Section 2. Grant of License; Termination and Cessation.
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Upon and subject to the terms and conditions hereinafter set forth,
the Licensor hereby grants to the Licensees the following fully paid-
up and, except as provided herein, perpetual rights and licenses
(collectively, the "Licenses"):
(a) the right to use the name "SMIT" preceded by the name
"SEACOR" (i.e., SEACOR-SMIT or SEACOR SMIT) as the corporate name of
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SEACOR and as part of the corporate name of any Subsidiaries of SEACOR
formed for the purpose of acquiring the Acquired Assets;
(b) the right to retain the names and logos of all Vessel Assets
and JV Companies; and
(c) the right to use the name "SMIT", or some variation thereof,
and logo on vessels owned or chartered in by SEACOR or any of its
Subsidiaries and managed by SMIT or any of its Subsidiaries;
provided, however, that (i) the right granted pursuant to clause (a)
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above shall automatically cease and terminate with respect to any
Subsidiary of SEACOR that ceases to own any of the Acquired Assets or
replacements therefor, (ii) the right and license granted pursuant to
clause (c) above shall automatically cease
and terminate with respect to any vessel referred to therein that
ceases to be managed by SMIT or any of its Subsidiaries, and (iii) all
Licenses shall automatically cease and terminate upon a Change of
Control unless SMIT shall have consented in its sole and absolute
discretion that they shall not cease and terminate or that they shall
cease and terminate upon such terms and subject to such conditions as
shall be acceptable to SMIT in its sole and absolute discretion.
For the purposes hereof, a "Change in Control" shall be
deemed to have occurred at such time as (A) any Person, or any Persons
acting together in a manner which would constitute a "group" (a
"Group") for purposes of Section 13(d) of the Securities Exchange Act
of 1934, as amended, or any successor provision thereto, together with
any Affiliates thereof, (1) become the Beneficial Owners, directly or
indirectly, of capital stock of SEACOR, entitling such Person or
Persons and its or their Affiliates to exercise more than 50% of the
total voting power of all classes of SEACOR's capital stock entitled
to vote generally in the election of directors or (2) shall succeed in
having sufficient of its or their nominees who are not supported by a
majority of the then current Board of Directors of SEACOR elected to
the Board of Directors of SEACOR such that such nominees, when added
to any existing directors remaining on the Board of Directors of
SEACOR after such election who are
Affiliates of or acting in concert with any such Persons, shall
constitute a majority of the Board of Directors of SEACOR, (B) SEACOR
shall be a party to any transaction pursuant to which the SEACOR
Common Stock is converted into the right to receive other securities
(other than common stock), cash and/or property (or SEACOR, by
dividend, tender or exchange offer or otherwise, distributes other
securities, cash and/or property to holders of SEACOR Common Stock)
and the value of all such securities, cash and/or property distributed
in such transaction and any other transaction effected within the
12 months preceding consummation of such transaction (as determined in
good faith by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors) is
more than 50% of the average of the daily Closing Prices for the five
consecutive Trading Days ending on the Trading Day immediately
preceding the date of such transaction (or, if earlier, the Trading
Day immediately preceding the "ex" date (as defined in paragraph (7)
of Section 13.04 of the Indenture) for such transaction) or (C) SEACOR
shall consolidate with or merge into any other Person or sell, convey,
transfer or lease its properties and assets substantially as an
entirety to any Person other than a Subsidiary, or any other Person
shall consolidate with or merge into SEACOR (other than, in the case
of this clause (C), pursuant to any consolidation or merger where
Persons who are stockholders
of SEACOR immediately prior thereto become the Beneficial Owners of
shares of capital stock of the surviving company entitling such
Persons to exercise more than 50% of the total voting power of all
classes of such surviving company's capital stock entitled to vote
generally in the election of directors).
Section 3. No Representations and Warranties. No
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representations, warranties or guaranties have been, are being or
shall be made by the Licensor as to the quality, condition, character,
type, suitability or value of any of the Licenses or any rights or
intellectual property relating thereto, including without limitation
whether they infringe on any rights of others or whether they may be
granted hereunder without violating any rights of others, and ALL
REPRESENTATIONS, WARRANTIES OR GUARANTIES IMPLIED OR OTHERWISE CREATED
UNDER ANY APPLICABLE LAW ARE EXPRESSLY DISCLAIMED BY THE LICENSOR.
Section 4. Indemnification. The Licensees shall indemnify,
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defend and hold the Licensor harmless from and against any Losses
arising out of or based upon the Licensees' use of the Licenses
granted hereunder. Any claim of the Licensor for indemnification with
respect to a Third Party Assertion shall be governed by the procedures
set forth in Section 7.2 of the Purchase Agreement.
Section 5. Sublicensing and Assignment. The Licensees
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shall not sublicense or assign the Licenses or any rights or
intellectual property relating thereto to any person whatsoever.
Section 6. Transition Provisions. In the event that the
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License of any Subsidiary of SEACOR pursuant to clause (a) of Section
2 shall cease and terminate as provided in such Section, such
Subsidiary shall promptly (and in any event within 60 days) amend its
certificate of incorporation (or comparable document) so that the SMIT
name is no longer a part of its corporate name and obtain new
stationery for use in its business, and do all such other acts as may
reasonably be required to eliminate reference thereto as part of its
ongoing business. In the event that the License of SEACOR or any
Subsidiary thereof to use the SMIT name, or some variation thereof,
and logo on any vessel pursuant to clause (c) of Section 2 shall cease
and terminate as provided in such Section, SEACOR or such Subsidiary
shall promptly (and in any event within 60 days) cause the name and/or
logo of such vessel to be changed to eliminate reference thereto. In
the event that the Licensees shall terminate and cease as provided in
clause (iii) of Section 2, each Licensee shall promptly (and in any
event within 60 days, or 90 days in the case of SEACOR) amend its
certificate of incorporation (or comparable document) so that the SMIT
name is no longer a part of its corporate name and obtain new
stationery for use in its business,
and do all such other acts as may reasonably be required to eliminate
reference thereto as part of its ongoing business.
Section 7. Governing Law. This Agreement shall be governed
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by, and construed in accordance with, the laws of the State of New
York without regard to the principles thereof relating to the conflict
of laws. This Agreement has been executed and delivered in Rotterdam,
The Netherlands.
Section 8. Specific Performance. Due to the goodwill and
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reputation associated with the Licensor's name, and for other reasons,
the Licensor will be irreparably damaged in the event that this
Agreement is not specifically enforced. In the event of a breach of
the terms, covenants or conditions of this Agreement by the Licensees,
the Licensor shall, in addition to all other remedies, be entitled to
a temporary or permanent injunction without showing any actual damage,
or a decree for specific performance, in accordance with the
provisions hereof.
Section 9. Benefits of Agreement. This Agreement shall be
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binding upon and inure to the benefit of the Licensor and its assigns,
and to the Licensees and their permitted successors.
Section 10. Miscellaneous. (a) This writing constitutes
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the entire agreement of the parties with respect to the subject matter
hereof and may not be modified, amended or
terminated except by a written agreement signed by each party hereto.
(b) No waiver of any breach or default hereunder shall be
considered valid unless in writing, and no such waiver shall be deemed
a waiver of any subsequent breach or default of the same or similar
nature.
(c) If any provision of this Agreement shall be held
invalid or unenforceable, such invalidity or unenforceability shall
apply only in the jurisdiction where such holding shall have occurred
and only as to such provision and shall not in any manner affect or
render invalid or unenforceable any other severable provision of this
Agreement, and this Agreement shall be modified in such jurisdiction
so that such invalid or unenforceable provision thereafter will be
enforceable.
(d) Each party hereto shall cooperate and shall take such
further action and shall execute and deliver such further documents as
may be reasonably requested by any other party in order to carry out
the provisions and purposes of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
LICENSEES:
SEACOR HOLDINGS, INC.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
SEACOR-SMIT OFFSHORE I B.V.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
SEACOR-SMIT (AQUITAINE) LTD.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
LICENSOR:
SMIT INTERNATIONALE N.V.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Area Manager
NYFS11...:\93\73293\0013\91\AGRD196I.330
