INVESTMENT AND REGISTRATION RIGHTS AGREEMENT
THIS INVESTMENT AND REGISTRATION RIGHTS AGREEMENT,
dated November 14, 1995 (this "Agreement"), between SEACOR
HOLDINGS, INC., a Delaware corporation (the "Company") and
COMPAGNIE NATIONALE DE NAVIGATION, a French corporation
("CNN").
W I T N E S S E T H :
WHEREAS, the Company has agreed to issue to CNN shares
of common stock, $0.01 par value, of the Company (the
"Shares"), pursuant to that certain Agreement dated
November 14, 1995 (the "November 1995 Agreement"), between
the Company and CNN; and
WHEREAS, the Shares will be issued to CNN without
registration under the Securities Act of 1933, as amended
(the "Securities Act"), and the Company and CNN desire to
provide for the registration of the resale by CNN of the
Shares and other matters with respect to the ownership by
CNN of the Shares, upon the terms and subject to conditions
set forth below.
NOW, THEREFORE, in consideration of the foregoing and
the mutual covenants herein contained, the parties hereto,
hereby agree as follows:
Section 1. Certain Other Definitions. All capitalized
terms used but not defined in this Agreement shall have the
respective meanings ascribed to such terms in the October
1995 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 federal agency
having similar powers.
"Common Stock" means the common stock, $0.01 par
value, of the Company.
The terms "register", "registered" and
"registration" refer to 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.
"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 NASDAQ Stock Market), 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 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 Shares
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 marketing expenses.
"Securities" means the Shares, together with any
other securities of the Company which hereafter are issued
or distributed with respect thereto by way of exchange,
reclassification, dividend or distribution, stock split,
merger, consolidation, recapitalization, reorganization or
otherwise, whether or not such Shares and securities have
been sold to the public.
"Underwritten Offering" means a registration in
which securities of the Company are sold to an underwriter
for reoffering to the public.
Section 2. Representations and Warranties of CNN. CNN
hereby represents and warrants as follows: (i) the Shares
are being acquired for CNN'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) the Shares have not been registered
under the Securities Act or any state securities or "blue
sky" law; (iii) CNN either is an "accredited investor"
within the meaning of Rule 501 of Regulation D under the
Securities Act, or alone or together with its purchaser
representative, has such knowledge and experience in
financial and business matters that CNN is capable of
evaluating the merits and risks of the prospective
investment in the Shares and able to bear the economic
consequences thereof; (iv) CNN will not sell or otherwise
transfer any of the Shares (or any interest therein) except
upon the terms and subject to the conditions specified
herein, and acknowledges that the certificates evidencing
such Shares are required to have endorsed thereon a legend
to the effect set forth in the second paragraph of Section
3(a) hereof; (v) in making its decision to invest in the
Shares, it has relied upon independent investigations made
by it and, to the extent believed by it to be appropriate,
has relied on investigations made by its representatives,
including its own professional, tax and other advisors;
(vi) CNN has received and carefully reviewed all of the
Company's reports (collectively, the "Public Filings")
required to be filed (and filed) by the Company under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since January 1, 1994; and (vii) CNN and its
representatives have been given the opportunity to examine
all documents, including the Public Filings, and to ask
questions of, and to receive answers from, the Company and
its representatives concerning the terms of the Agreement
and its investment in the Shares.
Section 3. Restrictions on Transfer.
(a) Legend. 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 OR PURSUANT TO AN
AVAILABLE EXEMPTION THEREFROM. SUCH SHARES MAY BE
TRANSFERRED ONLY IN COMPLIANCE WITH THE CONDITIONS
SPECIFIED IN THE INVESTMENT AND REGISTRATION RIGHTS
AGREEMENT DATED NOVEMBER 14, 1995, BETWEEN THE COMPANY
AND COMPAGNIE NATIONALE DE NAVIGATION, A COPY OF WHICH
IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF
THE COMPANY AND WILL BE FURNISHED TO THE HOLDER HEREOF
UPON WRITTEN REQUEST AND WITHOUT CHARGE."
(b) Termination of Restrictions. The
restrictions set forth in this Section 3(a) shall be
removed, upon CNN's request, and the Shares no longer shall
constitute securities subject to the registration rights
provided in Section 4 of this Agreement when (i) the Shares
have been transferred or sold pursuant to an effective
registration statement under the Securities Act, (ii) the
Shares have been transferred and sold in compliance with the
resale provisions of Rule 144 under the Securities Act, or
(iii) in the opinion of independent counsel satisfactory to
the Company, such legend no longer is required to be
endorsed on the Shares to ensure compliance with the
Securities Act.
Section 4. Registration under Securities Act, etc.
(a) Shelf-Registration. (i) General. The
Company shall prepare and file with the Commission on or
prior to the six-month anniversary of the date hereof, a
"shelf" registration statement on Form S-3 (or on another
appropriate form under the Securities Act available for use
by the Company) relating to the resale of the Shares by CNN
in accordance with the methods of distribution set forth in
the prospectus forming a part of such registration statement
and Rule 415 under the Act (a "Shelf Registration
Statement"), and shall use its 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 such "shelf" registration
statement may have included therein shares of Common Stock
offered for sale, from time to time, by other holders of
Common Stock.
(ii) Effective Period. The Company agrees
to use its best efforts to keep the Shelf Registration
Statement continuously effective until the first to occur of
the second anniversary of the date hereof or the date on
which all the Shares covered by the Shelf Registration
Statement have been sold thereunder in accordance with the
plan of distribution intended by CNN and as disclosed in the
prospectus forming part of the Shelf Registration Statement
(the "Effective Period"). Any period within the Effective
Period during which the Company fails to keep the Shelf
Registration Statement effective and otherwise in compliance
with Section 10(a) of the Securities Act is hereafter
referred to as a "Suspension Period." A Suspension Period
shall commence on and include 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 otherwise is required,
upon the advice of counsel, to suspend the sale of Shares
due to the occurrence of an event of the type described in
Section 4(c)(vi) and shall end on the date when CNN either
receives copies of the supplemented or amended prospectus
contemplated by Section 4(c)(vi) or is advised in writing by
the Company that use of the prospectus may be resumed. If
one or more Suspension Periods occur, the Effective Period
shall be extended by a period coincident with the aggregate
number of days included in all Suspension Periods.
(iii) Block-out Period. CNN agrees by its
acquisition of the Shares, if so requested by the Company,
not to effect any Sale of Shares pursuant to the Shelf
Registration Statement for any period reasonably deemed
necessary by the Company in connection with an Underwritten
Offering of shares of Common Stock pursuant to any demand
registration rights granted to another entity or the
offering of shares of Common Stock by the Company for its
own account. The Company agrees that the Effective Period
shall be extended by the period with the aggregate number of
days included in the periods during which CNN suspended
sales of Shares pursuant to the Shelf Registration Statement
at the Company's request, without duplication of the
extension of such period referred to in Section 4(a)(ii).
(b) Incidental Registration; Right and/or
Requirement to Include the Shares in a Company Registration:
If at any time after the sixth-month anniversary of the date
hereof and prior to December 31, 1999, the Company proposes
to register under the Securities Act on any registration
form available for the general registration of securities to
be sold for cash, other than on Form S-4 or S-8 (or any
successor form for securities to be offered in a transaction
of the type contemplated by Rule 145 under the Securities
Act or to employees of the Company pursuant to any employee
benefit plan) any shares of Common Stock, whether or not for
its own account, the Company promptly shall furnish written
notice to CNN of its intention to effect such Securities Act
registration, together with a reasonable description of
CNN's incidental rights under this Section 4(b)(i) (the
"Company Piggyback Notice"). Upon the written request of
CNN made within 10 business days after the receipt by it of
the Company Piggyback Notice (which request shall specify
the number of Shares intended to be disposed of by CNN and
the method of distribution intended by CNN (the "CNN
Inclusion Notice")), the Company shall use its best efforts
to cause all such Shares specified in the CNN Inclusion
Notice to be registered under the Securities Act, together
with the other shares of Common Stock which the Company at
the time proposes to register, all to the extent practicable
to permit the disposition of the Shares pursuant to the
Company's registration statement in accordance with the
methods of distribution intended by CNN. If the Company
thereafter reasonably shall determine not to register or to
delay the registration of its Common Stock, the Company
shall provide written notice of such determination to CNN
and (x) in the case of a determination not to effect a
registration pursuant to this Section 4(b)(i), thereupon
shall be relieved of the obligation to register the Shares
pursuant to this Section 4(b)(i), and (y) in the case of a
determination to delay a registration pursuant to this
Section 4(b)(i), thereupon shall be permitted to delay the
registration of the Shares for the period coincident with
the delay in respect of the Common Stock being registered
for the Company's own account (or the account of the other
holder(s), if any, in respect of which the Company
registration contemplated by this Section 4(b)(i) is being
effected).
(c) 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 Shares covered by such registration
statement until the earlier of such time as all such Shares
have been disposed of in accordance with the intended
methods of disposition by CNN or, in the case of the Shelf
Registration Statement, for the period ending on the second
anniversary of the date hereof, and, in the case of a
registration pursuant to Section 4(b) hereof, 90 days after
such registration statement is declared effective by the
Commission; and will furnish to CNN a copy of any amendment
or supplement to such registration statement or prospectus
prior to filing it with the Commission and shall not file
any such amendment or supplement to which CNN shall
reasonably have objected 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;
(iii) furnish to CNN 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 and any summary
prospectus), such number of the documents, if any,
incorporated by reference in such registration statement or
prospectus, and such number of other documents, as CNN
reasonably may request;
(iv) use its best efforts to register or
qualify the Shares covered by such registration statement
under such securities or "blue sky" laws of the states of
the United States as CNN reasonably shall request, to keep
such registration or qualification in effect for so long as
such registration statement remains in effect, and do any
and all other acts and things which may be necessary or
advisable to enable CNN to consummate the disposition in
such jurisdictions of the Shares 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(c)(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) upon request, furnish to CNN a signed
counterpart, addressed to CNN, of (A) an opinion of counsel
for the Company, dated the effective date of such
registration statement (and, if such registration involves
an Underwritten Offering, dated the date of the closing
under the underwriting agreement), and (B) a "comfort"
letter signed by the independent public accountants who have
certified the Company's financial statements included in
such registration statement, dated the effective date of
such registration statement (and, if such registration
involves an Underwritten Offering, dated the date of the
closing under the underwriting agreement), covering
substantially the same matters with respect to such
registration statement (and the prospectus included in such
registration statement) and, in the case of such
accountants' letter, with respect to events subsequent to
the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in Underwritten Offerings
of securities and, in the case of the accountants' letter,
such other financial matters, as the managing underwriter
for CNN reasonably may request;
(vi) immediately notify CNN, 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 happening 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 supplementation of the prospectus, and prepare
and furnish to CNN a reasonable number of copies of a
supplement to such prospectus as may be necessary so that,
as thereafter delivered to the purchasers of Shares from
CNN, 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 Shares registered pursuant to such registration
statement CNN agrees that it will not sell any Shares
pursuant to such registration statement during the time that
the Company is preparing and filing with the Commission a
supplement to or an amendment of such prospectus or
registration statement;
(vii) use its best efforts to comply with
all applicable rules and regulations of the Commission, and
make available to its securities holders, 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
(viii) provide and cause to be maintained a
transfer agent and registrar for the Shares 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 CNN shall furnish to the Company such
information regarding it and the method of distribution of
Shares intended by it 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.
(d) Underwritten Offerings. (i) Incidental
Underwritten Offerings. If the Company at any time proposes
to register any shares of Common Stock under the Securities
Act as contemplated by Section 4(b) hereof and such
securities are to be distributed by or through one or more
underwriters, the Company shall provide 20 days prior
written notice to CNN of such proposal and will use its best
efforts if requested by CNN in connection with such
incidental registration of Shares to arrange for such
underwriters to include, on the same terms as the other
shares of Common Stock being distributed, the Shares to be
offered and sold by CNN, together with such other securities
to be distributed by or through such underwriters; provided,
however, that, for purposes of this sentence, best efforts
shall not require the Company to reduce the amount or sale
price of such securities proposed to be distributed on
behalf of the Company by or through such underwriters. CNN
shall be a party to the underwriting agreement between the
Company and such underwriters and the representations and
warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall
also be made to and for the benefit of CNN and the Company
will cooperate with CNN such that the conditions precedent
to the obligations of CNN under such underwriting agreement
shall include conditions that are customary in underwriting
agreements and otherwise reasonably satisfactory to CNN.
CNN shall not be required by the Company to make any
representations or warranties to or agreements (including
indemnity agreements customary in secondary offerings) with
the Company or the underwriters other than reasonable
representations, warranties or agreements regarding CNN, its
ownership of the Shares and its intended method or methods
of distribution.
(ii) Holdback Agreements; Press Releases.
(A) If any registration pursuant to
this Agreement shall be effected by means of an
Underwritten Offering, CNN agrees by acquisition of the
Shares, if so required by the managing underwriter, not
to effect any public sale or distribution of the Shares
(other than as part of such underwritten public
offering) within 30 days prior to the effective date of
such registration statement or 90 days after the
effective date of such registration statement. In
order to ensure compliance with the provisions of this
Section 4(d)(ii)(A), the Company agrees to notify CNN
as to the status and proposed effective date of any
registration statement of the Company which has been
filed with the Commission.
(B) The Company agrees (x) not to
effect any public sale or distribution of any shares of
the Common Stock or securities convertible into or
exchangeable or exercisable for any shares of the
Common Stock during the period commencing on the 30th
day prior to and ending on the earlier of 90 days after
any registration statement filed in connection with an
Underwritten Offering has become effective and the date
on which all securities under such registration
statement are sold, except as part of such Underwritten
Offering and except pursuant to registrations on Form
S-4 or S-8 or any successor forms thereto, and (y) to
use its best efforts to cause each holder of the Common
Stock or any securities convertible into or
exchangeable or exercisable for any shares of the
Common Stock, in each case purchased from the Company
at any time after the date of this Agreement (other
than in a public offering) to agree not to effect any
such public sale or distribution of such securities
during such period.
(C) Before CNN shall disseminate or
announce publicly any information concerning a proposed
offering pursuant to this Section 4 hereof that is
intended for or may result in public knowledge thereof,
CNN shall so advise the Company and shall not
disseminate or announce publicly such information
without the Company's consent, unless such information
is otherwise publicly available or the dissemination
thereof is required by applicable law.
(e) Preparation; Reasonable Investigation. In
connection with the preparation and filing of each
registration statement registering any Shares under the
Securities Act as contemplated by this Agreement, the
Company shall give CNN, its underwriters, if any, and CNN's
counsel and accountants, the opportunity to participate in
the preparation of such registration statement, each
prospectus included in such registration statement or filed
with the Commission and each amendment or supplement
thereto, and will give it 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 in the opinion of
CNN and such underwriters or their respective counsel, 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, CNN 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
will enter into appropriate confidentiality agreements with
the Company in a form satisfactory to the Company.
(f) Indemnification. (i) Indemnification by the
Company. The Company shall indemnify and hold harmless CNN,
its directors and officers and each other person, if any,
who controls CNN within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and
against any losses, claims, damages, liabilities or expenses
(each a "Loss" and collectively "Losses"), joint or several,
to which CNN or any such persons may become subject under
the Securities Act or otherwise, insofar as 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 Shares were included for
registration under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained
in such registration statement, or any amendment or
supplement to such registration statement, or any document
incorporated by reference in such registration statement, 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, final
prospectus, summary prospectus, amendment or supplement, as
the case may be, in reliance upon and in conformity with
written information furnished to the Company through an
instrument duly executed by CNN or any such director,
officer or controlling person expressly for use in the
preparation of such registration statement; 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
made in any preliminary prospectus, if CNN shall have failed
to deliver a copy of the final prospectus to the individual
or entity asserting such Losses after the Company shall have
furnished CNN with a sufficient number of copies of the
same, and the final prospectus shall have corrected such
untrue statement or omission; 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 the final
prospectus, if such untrue statement or alleged untrue
statement or omission or alleged omission shall have been
corrected in an amendment or supplement to the final
prospectus and CNN shall have failed to deliver such final
prospectus as so amended or supplemented prior to or
concurrently with the sale of the Shares covered by a
registration statement to the individual or entity asserting
such Losses after the Company shall have furnished CNN with
a sufficient number of copies thereof in a manner and at a
time sufficient to permit delivery of the same. The Company
shall have the burden of proving that it delivered such
corrected documents to CNN; it being hereby agreed that:
any customary xxxx of lading, invoice or receipt that is
transmitted or issued by any postal delivery, courier or
special mail service that is signed by an employee or agent
of CNN who generally performs delivery and mail receipt
services, or any other bona fide records maintained by such
postal delivery, courier or mail service indicating such
receipt, shall constitute conclusive evidence of the
delivery of such corrected documents. Such indemnity shall
remain in full force and effect regardless of any
investigation made by or on behalf of CNN or any
aforementioned director, officer or controlling person and
shall survive the transfer of the Shares by CNN.
(ii) Indemnification by CNN. The Company
may require, as a condition to including any Shares in a
registration statement filed pursuant to this Agreement,
that the Company shall have received an undertaking
satisfactory to it from CNN, any of its officers or
directors, and any person who controls CNN within the
meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, to 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 such registration
statement, any preliminary prospectus, final prospectus or
summary 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 through an instrument duly executed by CNN or any of
its directors, officers or 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 expressly
stating that such information is for use in the preparation
of such registration statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or
supplement, as the case may be. Such indemnity shall remain
in full force and effect regardless of any investigation
made by or on behalf of the Company or any such director,
officer or controlling person and shall survive the transfer
of the Shares by CNN.
(iii) Notice of Claims, etc. Promptly after
receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim
referred to in Sections 4(f)(i) and 4(f)(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 notice shall not relieve the indemnifying party of
its obligations under Sections 4(f)(i) or 4(f)(ii) hereof,
except to the extent that the indemnifying party is actually
and materially prejudiced by such failure. In case any
action is brought against any indemnified party, and it
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 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(f)(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). Such indemnification
shall remain in full force and effect irrespective of any
investigation made by or on behalf of an indemnified party.
(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 CNN
agree that it would not be just and equitable if
contributions pursuant to this Section 4(f)(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 received in respect of any particular
Loss damage or liability is incurred.
(vi) Limitation on Seller's Payments.
Notwithstanding any provision of this Agreement to the
contrary, the liability of CNN under this Section 4(f) shall
in no event exceed the proceeds received by CNN from the
sale of Shares 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.
(g) Registration Expenses. The Company shall
bear all Registration Expenses incurred in connection with
the performance of its obligations under Section 4 of this
Agreement and, in the event of a Shelf Registration
Statement, shall bear or reimburse CNN for the reasonable
fees and disbursements of one firm of counsel designated by
it.
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 CNN to sell Shares without
registration under the Securities Act pursuant to Rule 144
(or any similar rule or regulation). Upon the request of
CNN, the Company will deliver to CNN a written statement as
to whether it has complied with such requirements.
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 CNN. CNN shall
be bound by any consent authorized by this Section 6,
whether or not such Shares 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 (3rd) 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 CNN, at 00 Xxxx. Xxxxxxxxx, 00000,
Xxxxx, Xxxxxx, Attn: Xxxxxx xx Xxxxxxxxx, Telecopy No.: 011-
33-1-42-862037; 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 CNN at all reasonable times during
normal business hours.
Section 9. Entire Agreement. This Agreement and the
November 1995 Agreement embody the entire agreement and
understanding between the Company and CNN in respect of the
subject matter contained herein. There are no restrictions,
promises, warranties, or undertakings, other than those set
forth or referred to herein, with respect to the
registration rights granted by the Company with respect to
the Shares. This Agreement and the November 1995 Agreement
supersede 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 obligations under
this Agreement shall automatically terminate upon the
earlier to occur of (a) the sale of all Shares by CNN 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 its securities which is inconsistent with or
violates the rights granted to CNN in this Agreement;
provided, however, that the Company shall be permitted to
enter into registration rights agreements after the date of
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.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed and delivered as of the date
first above written.
SEACOR HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Vice President
COMPAGNIE NATIONALE DE NAVIGATION
By: /s/ Xxxxxx xx Xxxxxxxxx
-------------------------------
Name: Xxxxxx xx Xxxxxxxxx
Title: Executive Vice President
