INVESTMENT AND REGISTRATION RIGHTS AGREEMENT
INVESTMENT AND REGISTRATION RIGHTS AGREEMENT, dated January
3, 1997 (this "Agreement"), among SEACOR Holdings, 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 :
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WHEREAS, pursuant to the asset purchase transactions (the
"Transactions") contemplated by that certain Agreement dated December
3, 1996 (the "Galaxie Purchase Agreement"), among the Company, Galaxie
Offshore Inc. (formerly Acadian Offshore Services, Inc.), a Louisiana
corporation and a direct, wholly-owned subsidiary of the Company, the
Holders and certain stockholders of the Holders, the Company has
agreed to issue to the Holders 50,000 shares of common stock, $0.01
par value, of the Company (the "Shares"); and
WHEREAS, pursuant to the Transactions, each Holder shall
receive the number of Shares of Common Stock (as hereinafter defined)
set forth opposite such Holder's name on Annex I hereto;
WHEREAS, the Shares will be issued and sold 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) and by any Galaxie Stockholders (as hereinafter defined) to
whom any Registrable Securities are transferred by the Holders 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 I. Certain Other Definitions. All capitalized
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terms used but not defined in this Agreement shall have the respective
meanings ascribed to such terms in the Galaxie Purchase 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
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are open for business in the City of New York, Borough of Manhattan.
"Commission" means the United States Securities and
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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,
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of the Company.
"Exchange Act" means the Securities Exchange Act of
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1934, as amended, and the rules and regulations of the Commission
thereunder.
"Galaxie Stockholders" shall mean the stockholders of
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the Holders listed on Exhibit A hereto or, in the event of the death
or legal incapacity of any of such stockholders, such stockholder's
executors, administrators, conservators or other legal
representatives.
The terms "register," "registered" and "registration"
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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
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Holders pursuant to the Transactions and any other securities issued
by the Company 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
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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 compliance with all applicable resale
provisions of Rule 144 under the Securities Act; (iii) as expressed in
an opinion of counsel to the Company that is reasonably satisfactory
to the Holders and which is delivered and satisfactory to the Company
and the transfer agent for the Common Stock, such securities no longer
constitute "restricted securities" within the meaning of Rule 144
under the Securities Act and the transfer of such securities neither
requires registration under the Securities Act nor qualification under
any state securities or "blue sky" law then in effect, or the use of
an applicable exemption therefrom; or (iv) such securities cease to be
issued and outstanding for any reason.
"Registration Expenses" means all expenses incurred by
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the Company in complying with Section 4 hereof, including, without
limitation, all registration and filing fees (including fees and
expenses associated with filings required to be made with the National
Association of Securities Dealers, Inc. and any national securities
exchange or U.S. automated inter-dealer quotation system of a
registered national securities association on which the Common Stock
is listed or otherwise admitted to unlisted trading privileges),
printing expenses, if any (including expenses of printing certificates
for the Common Stock being registered in a form eligible for deposit
with The Depository Trust Company and of printing registration
statements and prospectuses), fees and disbursements of counsel for
the Company, fees and expenses of compliance with state securities or
"blue sky" laws (including reasonable fees and expenses of one firm of
counsel for underwriters, if any, in connection with "blue sky"
qualifications of the Registrable Securities being registered and the
determination of eligibility for investment under the laws of such
jurisdictions 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
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amended, and the rules and regulations of the Commission thereunder.
"Significant Subsidiary" has the meaning ascribed to
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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
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Securities Act pursuant to which securities of the Company are sold to
an underwriter for reoffering and distribution to the public.
SECTION II. Representations and Warranties of Holders.
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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 such
Holder 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 upon the terms and subject to the conditions specified
herein, and otherwise not in violation of the Securities Act, provided
that such Holder, prior to effecting any transfer of Shares permitted
hereunder, will cause the intended transferee of the Shares to agree
to take and hold such Shares subject to the terms and conditions of
this Agreement (and, in that connection, to execute and deliver to the
Company such agreements and instruments as the Company reasonably may
request to evidence the same), and further acknowledges that the
certificates evidencing such Shares are required to have endorsed
thereon a legend to the effect set forth in Section 3(a) hereof;
(v) in making such Holder's decision to invest in the Registrable
Securities, such Holder has relied upon independent investigations
made by such Holder and, to the extent believed by him or it to be
appropriate, has relied on investigations made by such Holder's
representatives, including such Holder's own legal, accounting,
investment, financial, tax and other professional advisors; (vi) such
Holder has been afforded an opportunity to review and has reviewed all
of the Company's reports filed by the Company under the Exchange Act
since January 1, 1994 (the "Public Filings"); and (vii) such Holder
and such Holder's purchaser representatives, as applicable, 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 Galaxie
Purchase Agreement and such Holder's investment in the Shares.
SECTION III. Restrictions on Transfer.
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A. Legend. Each certificate representing the Shares
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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 ___________ __, 199__,
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 HOLDINGS, INC., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ATTENTION: SECRETARY."
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B. Any Holder may transfer its Shares to the Galaxie
Stockholders who are stockholders of such Holder subject to the
execution and delivery by each such Galaxie Stockholder to the Company
of an agreement in the form of Exhibit B hereto (a "Transfer
Agreement") and, following such transfer of Shares and execution and
delivery of such Transfer Agreement, such Galaxie Stockholder shall
succeed to all of the transferring Holder's rights under this
Agreement with respect to the Shares so transferred.
SECTION IV. Registration under Securities Act, etc.
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A. Shelf-Registration. 1. General. The Company
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agrees to use its best efforts to prepare and file with the Commission
on or before March 31, 1997, 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 Securities Act)
relating to the resale, from time to time, of the Registrable
Securities by the Holders in accordance with the plan and method of
distribution set forth in the prospectus forming part of such
registration statement (a "Shelf Registration Statement"), and shall
use reasonable commercial 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.
2. Effective Period. The Company agrees to use
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its best efforts to keep the Shelf Registration Statement continuously
effective until the first to occur of the second anniversary of the
date on which such Shelf Registration Statement was first declared
effective by the Commission (subject to Suspension Periods (defined
below) and extensions coincident with the length of such Suspension
Periods) or the date on which all the 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(c)(v) plus an additional
five Business Days or otherwise is advised in writing by the Company
that use of the prospectus may be resumed. Each Holder agrees that it
will not sell any Registrable Securities pursuant to the Shelf
Registration Statement during any Suspension Period and the Company
agrees to cause each Suspension Period to end as soon as reasonably
practicable. The Company agrees that no other similarly situated
holder of the Company's Common Stock will be permitted to sell Shares
of the Company's Common Stock pursuant to a shelf registration
statement during a Suspension Period. If one or more Suspension
Periods occur, the Effective Period shall be extended by such number
of days coincident with the aggregate number of days included in all
Suspension Periods.
B. Incidental Registration; Right and/or Requirement
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to Include the Shares in a Company Registration: If at any time after
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the date hereof and prior to the filing of the Shelf Registration
Statement, 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 each Holder of its intention to effect
such Securities Act registration, together with a reasonable
description of such Holder's incidental rights under this Section 4(b)
(the "Company Piggyback Notice"). Upon the written request of a
Holder 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 the Holder and the method of
distribution intended by the Holder (the "Galaxie Inclusion Notice")),
the Company shall use its best efforts to cause all such Shares
specified in the Galaxie 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 each Holder. 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 each Holder and (x) in the case of a determination
not to effect a registration pursuant to this Section 4(b), thereupon
shall be relieved of the obligation to register the Shares pursuant to
this Section 4(b), and (y) in the case of a determination to delay a
registration pursuant to this Section 4(b), 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) is being effected).
C. Registration Procedures. The Company shall:
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1. 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;
2. 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 until the earlier of such time as all such Registrable
Securities have been disposed of in accordance with the intended plan
and method of disposition by each Holder of such Registrable
Securities or for the period ending on the second anniversary of the
date on which such Shelf Registration Statement was first declared
effective (subject to Suspension Periods and extensions coincident
with the length of such suspensions) 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 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 supple-
ment 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;
3. 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;
4. use its best efforts to register or qualify
the Registrable Securities covered by such registration statement
under such securities or "blue sky" laws of the states of the United
States as each requesting Holder reasonably shall request, to keep
such registration or qualification in effect for so long as such
registration statement remains in effect, and to do any and all other
acts and things which may be necessary or advisable to enable such
requesting Holder to consummate the disposition in such jurisdictions
of his or its Registrable Securities covered by such registration
statement, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation
in any jurisdiction in which it is not and would not, but for the
requirements of this Section 4(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;
5. 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,
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however, that with respect to Registrable Securities registered
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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;
6. 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
7. 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.
D. Underwritten Offerings. 1. Incidental
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Underwritten Offerings. If the Company at any time proposes to
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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 each Holder of such proposal
and will use its best efforts if requested by such Holder 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
such Holder, together with such other securities to be distributed by
or through such underwriters; provided, however, that, for purposes of
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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. Each Holder
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 each
Holder and the Company will cooperate with each Holder such that the
conditions precedent to the obligations of each Holder under such
underwriting agreement shall include conditions that are customary in
underwriting agreements and otherwise reasonably satisfactory to such
Holder. Each Holder 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 the Holder, its ownership of the Shares and its
intended method or methods of distribution.
2. Holdback Agreements; Press Releases.
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a. If any registration of Registrable
Securities pursuant to this Agreement shall be effected by
means of an Underwritten Offering and any of the Shares
requested by a Holder to be included in such Underwritten
Offering have been included therein, such Holder agrees, 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 each Holder 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 each Holder 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, such Holder
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
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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.
F. Indemnification. 1. Indemnification by the
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Company. The Company shall indemnify and hold harmless each Holder of
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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(f), 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
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provide any indemnification hereunder if any such Losses (or actions
or proceedings in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, preliminary prospectus
or final prospectus, as the case may be, in reliance upon and in
conformity with written information furnished to the Company by such
Holder for inclusion in such registration statement; and provided,
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further, that the Company shall have no obligation to provide any
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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 a supplement to the final prospectus and such Holder
or any such other person shall have failed to deliver such final
prospectus as so supplemented 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(f)(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.
2. Indemnification by the Holders. Each Holder
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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.
3. Notice of Claims, etc. Promptly after
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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(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
-------- -------
said 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 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 reason-
ably 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(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 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.
4. 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 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.
5. 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.
6. 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(f) 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.
7. 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.
SECTION V. Rule 144. The Company shall comply with the
--------
requirements of Rule 144(c) under the Securities Act, as such Rule may
be amended from time to time (or any similar rule or regulation
hereafter adopted by the Commission), regarding the availability of
current public information to the extent required to enable each
Holder to sell Registrable Securities without registration under the
Securities Act pursuant to the resale provisions of Rule 144 (or any
similar rule or regulation). Upon the request of a Holder, the
Company will deliver to such Holder a written statement as to whether
it has complied with such requirements and, upon a Holder's compliance
with the applicable provisions of Rule 144, will take such action as
may be required (including, without limitation, causing legal counsel
to issue an appropriate opinion) to cause its transfer agent to
effectuate any transfer of Registrable Securities properly requested
by such Holder, in accordance with the terms and conditions of Rule
144.
SECTION VI. 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 VII. 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, c/o Galaxie Marine Service,
Inc., ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: ▇.▇.
▇▇▇▇▇▇▇▇▇, Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇; and
B. if to the Company, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopy No.:
(▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇ Gran, Fort & Schlefer, L.L.P.,
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇,
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇;
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 8 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 VIII. 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 IX. 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 X. 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 XI. 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 XII. Termination. The rights and obligations under
-----------
this Agreement shall automatically terminate upon the earlier to occur
of (a) the sale of all Registrable Securities by each Holder and
(b) the end of the Effective Period, as the same may be extended
pursuant to Sections 4(a)(ii) hereof.
SECTION XIII. 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.
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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
GALAXIE MARINE SERVICE, INC.
By: /s/ D. ▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇. ▇▇▇. Felterman
Title: President
MOONMAID MARINE, INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇
Title: President
TRIANGLE MARINE, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
ANNEX I
-------
Holders Shares
------- ------
Galaxie Marine Service, Inc. 24,506
Moonmaid Marine, Inc. 5,381
Triangle Marine, Inc. 20,113
EXHIBIT A
---------
Galaxie Stockholders:
--------------------
▇.▇. ▇▇▇▇▇▇▇▇▇
D. ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
EXHIBIT B
---------
TRANSFER AGREEMENT
SEACOR Holdings, Inc.
1370 Avenue of the Americas
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This Agreement is being delivered to you pursuant to Section
3(a) of the Investment and Registration Rights Agreement, dated
__________ __, 199__, among SEACOR Holdings, Inc., a Delaware
corporation (the "Company"), and the persons listed on the signature
pages thereto (the "Registration Rights Agreement"). All capitalized
terms used but not otherwise defined in this Agreement shall have the
respective meanings ascribed to such terms in the Registration Rights
Agreement.
[Name of Holder] intends to transfer to the undersigned ___
Shares that constitute Registrable Securities. In connection
therewith, the undersigned hereby represents, acknowledges, covenants
and agrees as follows:
(i) such Shares are being acquired for the undersigned'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 the undersigned, such Shares have
not been registered under the Securities Act or any state securities
or "blue sky" law;
(iii) the undersigned either is an "accredited investor"
within the meaning of Rule 501 of Regulation D under the Securities
Act, or alone or together with the undersigned's purchaser
representative, has such knowledge and experience in financial and
business matters that the undersigned is capable of evaluating the
relative merits and risks of the prospective investment in such Shares
and able to bear the economic consequences thereof;
(iv) the undersigned will not offer for sale, sell or
otherwise transfer any of such Shares (or any interest therein) except
upon the terms and subject to the conditions specified in the
Registration Rights Agreement, and otherwise not in violation of the
Securities Act, provided that such Holder, prior to effecting any
transfer of Shares permitted under the
Registration Rights Agreement, will cause the intended transferee of
the Shares to agree to take and hold such Shares subject to the terms
and conditions of the Registration Rights 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) of the Registration Rights Agreement;
(v) in making the undersigned's decision to invest in the
Registrable Securities, the undersigned has relied upon independent
investigations made by the undersigned and, to the extent believed by
him or it to be appropriate, has relied on investigations made by the
undersigned's representatives, including the undersigned's own legal,
accounting, investment, financial, tax and other professional
advisors;
(vi) the undersigned has been afforded an opportunity to
review and has reviewed all of the Company's reports filed by the
Company under the Exchange Act since January 1, 1994 (the "Public
Filings"); and
(vii) the undersigned and the undersigned's purchaser
representatives, as applicable, 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 Galaxie Purchase
Agreement, the Registration Rights Agreement and the undersigned's
investment in the Shares.
If for any reason the Registration Rights Agreement shall be
terminated, this Agreement shall likewise be terminated.
Very truly yours,
[Signature of Galaxie Stockholder]
[Typed name of Galaxie Stockholder]
ACKNOWLEDGED BY:
SEACOR HOLDINGS, INC.
By: ________________________
Name:
Title:
