INVESTMENT AND REGISTRATION RIGHTS AGREEMENT
INVESTMENT AND REGISTRATION RIGHTS AGREEMENT, dated December 19,
1996 (this "Agreement"), among SEACOR Holdings, Inc., a Delaware
corporation (the "Company"), and Smit International Overseas B.V., a
corporation organized under the laws of The Netherlands (initially the
"Holder"; together with other holders from time to time of Registrable
Securities (as defined herein) hereunder, the "Holders").
W I T N E S S E T H :
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WHEREAS, pursuant to the terms set forth in a certain asset
purchase agreement of even date herewith (the "Purchase Agreement"),
among the Company, the subsidiaries of the Company listed on Exhibit A
thereto, SMIT Internationale N.V., a corporation organized under the
laws of The Netherlands ("SMIT"), and the subsidiaries of SMIT listed
on Exhibit B thereto, providing for the issuance and sale by the
Company of (i) a number (determined as set forth in the Purchase
Agreement) of shares of common stock, $.01 par value per share (the
"Common Stock"), of the Company (the "Shares") and (ii) an aggregate
principal amount (determined as set forth in the Purchase Agreement)
of 5-3/8% Convertible Subordinated Notes due November 15, 2006 of the
Company (the "Notes"; the Shares, the Notes and the shares of Common
Stock issuable upon conversion of the Notes referred to collectively
as the "Securities"); and
WHEREAS, pursuant to the Purchase Agreement, the Holder shall
receive such number and type of Securities set forth opposite such
Holder's name, as applicable, on Annex I hereto plus such additional
Securities as shall be issuable after the date hereof pursuant to the
Purchase Agreement (and promptly after each such issuance Annex I
shall be amended by the parties hereto to reflect such issuance);
WHEREAS, the Securities will be issued and sold to the Holders
pursuant to the Purchase Agreement without registration under the
Securities Act in reliance on one or more applicable exemptions from
such registration, and the Company and the Holders desire to provide
for the registration of the resale by the Holders of Registrable
Securities (as hereinafter defined) from time to time, upon the terms
and subject to conditions set forth below; and
WHEREAS, it is intended by the Company and the Holders that this
Agreement shall become effective immediately upon the issuance and
sale to the Holder of Securities pursuant to the Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, the parties hereto, intending to be
legally bound, hereby agree as follows:
Section 1. Certain Other Definitions. All capitalized terms
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used but not defined in this Agreement shall have the respective
meanings ascribed to such terms in the 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 are
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open for business in the City of New York, Borough of Manhattan.
"Commission" means the United States Securities and Exchange
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Commission and any successor United States federal agency or
governmental authority having similar powers.
"Exchange Act" means the Securities Exchange Act of 1934, as
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amended, and the rules and regulations of the Commission thereunder.
"Indenture" shall mean that certain indenture, dated as of
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November 1, 1996, between the Company and First Trust National
association, as trustee.
The terms "register," "registered" and "registration" mean a
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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" mean the Securities issued to the
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Holder pursuant to the Purchase Agreement and any other securities
issued by the Company after the closing of the transactions
contemplated by the Purchase Agreement in respect of the Securities
(and in respect of the Common Stock generally) by means of exchange,
reclassification, dividend, distribution, split up, combination,
subdivision, recapitalization, merger, spin-off, reorganization or
otherwise; provided, however, that as to any Registrable Securities,
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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
NYFS11...:\93\73293\0013\1711\AGRN216Y.30G
therefor set forth in the final prospectus forming part of such
registration statement; (ii) such securities shall have been sold in
satisfaction of all applicable resale provisions of Rule 144 or
Regulation S under the Securities Act (except a transfer by a Holder
to an Affiliate thereof); (iii) as expressed in an opinion of
independent counsel delivered and satisfactory to the Company and the
transfer agent for the Common Stock, such securities 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" mean all expenses incurred by the
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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 Securities are
listed or otherwise admitted to unlisted trading privileges), printing
expenses, if any (including expenses of printing certificates for the
Securities 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, in connection with
any Underwritten Offering, 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 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 Section 4(b) hereof and pursuant to which
securities of the Company are sold to an underwriter for reoffering
and distribution to the public.
Section 2. Representations and Warranties of Holders. Each
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Holder severally (and not jointly) hereby represents, acknowledges,
covenants and agrees as follows: (i) the Securities are being
acquired for such Holder's own account for investment purposes only
and not with a view to any resale in violation of the Securities Act
or any state securities or "blue sky" law; (ii) to the knowledge of
such Holder, the Securities have not been registered under the
Securities Act or any state securities or "blue sky" law; (iii) such
Holder is an "accredited investor" within the meaning of Rule 501 of
Regulation D under the Securities Act; (iv) such Holder will not offer
for sale, sell or otherwise transfer any of the Securities (or any
interest therein) except upon the terms and subject to the conditions
specified herein, and otherwise not in violation of the Securities Act
or any state securities or "blue sky" laws, provided that such Holder,
prior to effecting any transfer of Securities permitted hereunder
(other than a transfer of Securities following which such Securities
shall cease to constitute Registrable Securities pursuant to a sale
described in clause (i) or (ii) of the proviso contained in the
definition of "Registrable Securities"), will cause the intended
transferee of the Securities to agree to take and hold such Securities
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
Securities 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 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 Purchase Agreement and
such Holder's investment in the Securities.
Section 3. Restrictions on Transfer.
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(a) Legend. (i) Each certificate representing the Shares
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shall have endorsed thereon a legend in substantially the following
form:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR ANY OTHER FEDERAL OR STATE
SECURITIES OR BLUE SKY LAWS, AND HAVE BEEN ISSUED IN A MANNER
INTENDED TO COMPLY WITH THE CONDITIONS CONTAINED IN REGULATION S
UNDER THE ACT. PRIOR TO JANUARY 29, 1997, NO OFFER, SALE,
TRANSFER, PLEDGE OR OTHER DISPOSITION (COLLECTIVELY, A
"DISPOSAL") OF THE SHARES OF COMMON STOCK REPRESENTED BY THIS
CERTIFICATE MAY BE MADE (A) IN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, ANY "U.S. PERSON" (AS DEFINED IN RULE
902(O) OF REGULATION S) UNLESS (I) REGISTERED UNDER THE ACT AND
ANY APPLICABLE STATE SECURITIES OR BLUE SKY LAWS OR (II) SEACOR
HOLDINGS, INC. ("SEACOR") RECEIVES A WRITTEN OPINION OF UNITED
STATES LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO IT TO
THE EFFECT THAT SUCH DISPOSAL IS EXEMPT FROM SUCH REGISTRATION
REQUIREMENTS OR (B) OUTSIDE THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, ANY PERSON WHO IS NOT A "U.S. PERSON"
UNLESS PRIOR TO SUCH DISPOSAL (I) THE BENEFICIAL OWNER OF SUCH
SHARES AND THE PROPOSED TRANSFEREE SUBMIT CERTAIN CERTIFICATIONS
TO SEACOR (FORMS OF WHICH ARE AVAILABLE FROM SEACOR AT ITS
PRINCIPAL EXECUTIVE OFFICES) AND (II) SEACOR RECEIVES THE LEGAL
OPINION DESCRIBED IN (A)(II) ABOVE.
AFTER JANUARY 29, 1997, THE SHARES OF COMMON STOCK CAN BE
SOLD IN THE UNITED STATES ONLY IF REGISTERED OR IF AN EXEMPTION
FROM REGISTRATION IS AVAILABLE."
(ii) Each certificate representing the Notes shall have
endorsed thereon a legend in substantially the following form:
"THE NOTES AND SHARES OF COMMON STOCK ISSUABLE UPON
CONVERSION THEREOF 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 NOTES AND SHARES OF COMMON
STOCK ISSUABLE UPON CONVERSION THEREOF MAY BE TRANSFERRED
ONLY IN
COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THE INVESTMENT AND
REGISTRATION RIGHTS AGREEMENT DATED DECEMBER 19, 1996, 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:
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SECRETARY."
(b) The Company and/or the registrar and transfer agent for
the Securities will not be required to accept for registration of
transfer any Securities acquired by the Holders except upon
presentation of evidence reasonably satisfactory to the Company and
the transfer agent, which may include an opinion of counsel and
representations of the transferee to the effect of clauses (i) through
(vi) of Section 2 hereof, to the effect that the transfer is being
made in compliance with the Securities Act and any applicable state
securities or "blue sky" law, provided, however, that no opinion of
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counsel shall be required in respect of a transfer by a Holder to one
or more of its Affiliates.
Section 4. Registration under Securities Act, etc.
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(a) Shelf Registration. (i) General. The Company shall
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(A) prepare and file with the Commission as soon as practicable after
the issuance to the Holders of the Securities pursuant to the Purchase
Agreement, a registration statement on Form S-3 (or on another
appropriate form under the Securities Act then available for use by
the Company in connection with a secondary offering of the Registrable
Securities pursuant to Rule 415 under the Act) relating to the resale,
from time to time, of the Registrable Securities by the Holders in
accordance with the plan and method of distribution set forth in the
prospectus forming part of such registration statement (a "Shelf
Registration Statement"); (B) furnish to each Holder a copy of the
Shelf Registration Statement prior to filing the same with the
Commission and shall not file such Shelf Registration Statement if any
such requesting Holder shall reasonably have objected to in writing on
the grounds that such Shelf Registration Statement 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; and (C) shall use
reasonable commercial efforts to cause the Shelf Registration
Statement to be declared effective by the Commission as soon as
reasonably practicable after the same has been filed with the
Commission. It is understood and agreed that the Shelf
Registration Statement may have included therein shares of Common
Stock offered for sale, from time to time, by holders of Common Stock
other than the Holders and also may relate to a primary offering of
Common Stock by the Company.
(ii) Effective Period. The Company agrees to use its
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best efforts to keep the Shelf Registration Statement continuously
effective until the first to occur of (A) the third anniversary of the
date on which such Shelf Registration Statement was first declared
effective by the Commission and (B) the date on which all the
Registrable Securities covered by the Shelf Registration Statement
have been sold pursuant thereto or may be sold pursuant to Rule 144(k)
under the Securities Act (or any successor rule thereof), assuming for
this purpose that the Holders thereof are not Affiliates of the
Company (in any such case, such period being called the "Effective
Period"). Each Holder agrees that it will not sell any Registrable
Securities pursuant to the Shelf Registration Statement during any
Suspension Period (as hereinafter defined) and the Company agrees to
cause each Suspension Period to end as soon as reasonably practicable.
The Company agrees that no other holder of the Common Stock or
securities convertible into or exchangeable or exercisable for Common
Stock will be permitted to sell such securities of the Company
pursuant to a shelf registration statement during a Suspension Period
(other than for securities to be offered in a transaction of the type
contemplated by Rule 145 under the Securities Act or securities to be
sold by employees of the Company pursuant to any employee benefit
plan). 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.
(b) Incidental Registration; Right and/or Requirement to
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Include the Securities in a Company Registration: If at any time
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after the date hereof and prior to the expiration of the Effective
Period, 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 registration statements 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 of the Company's equity securities or securities
convertible into or exchangeable for such equity securities, whether
or not for its own account (other than a secondary offering that is
not underwritten), 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 ten
business days after the receipt by it of the Company Piggyback Notice
(which request shall specify the number of Securities requested by
the Holder to be included in such registration (the "Holder Inclusion
Notice")), the Company shall use its best efforts to cause all such
Securities specified in the Holder Inclusion Notice to be registered
under the Securities Act, together with the other securities which the
Company at the time proposes to register, all to the extent
practicable to permit the disposition of the Securities 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 securities, 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
Securities 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
Securities for the period coincident with the delay in respect of the
securities 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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(i) cause any registration statement filed pursuant to
Section 4 hereof and the related prospectus and any amendment or
supplement thereto, as of the effective date of such registration
statement, amendment or supplement, (A) to comply in all material
respects with the applicable requirements of the Securities Act and
the rules and regulations of the Commission promulgated thereunder and
(B) not to contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading;
(ii) prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection with such registration statement as may
be necessary to keep such registration statement effective and to
comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such registration
statement until, in the case of the Shelf Registration, the expiration
of the Effective Period and, in the case of any registration statement
pursuant to Section 4(b), the Company shall otherwise determine or as
the parties may otherwise agree in connection therewith; and will
furnish to each Holder a copy of any amendment or supplement to such
registration statement or prospectus prior to filing the same with the
Commission and shall not file any such amendment or supplement to
which any such requesting Holder shall reasonably have objected to in
writing on the grounds that such amendment or supplement does not
comply in all material respects with the requirements of the
Securities Act or of the rules or regulations thereunder or otherwise
inaccurately describes information pertaining to such Holder;
(iii) furnish to each requesting Holder such number
of conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits
thereto), such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus), such
number of the documents, if any, incorporated by reference in such
registration statement or prospectus, and such number of other
documents, as such requesting Holder reasonably may request;
(iv) use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under
such securities or "blue sky" laws of the states of the
United States as each requesting Holder reasonably shall request, to
keep such registration or qualification in effect for so long as such
registration statement remains in effect, and to do any and all other
acts and things which may be necessary or advisable to enable such
requesting Holder to consummate the disposition in such jurisdictions
of his or its Registrable Securities covered by such registration
statement, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation
in any jurisdiction in which it is not and would not, but for the
requirements of this Section 4(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) immediately notify each Holder, at any time when a
prospectus or prospectus supplement relating thereto is required to be
delivered under the Securities Act, upon discovery that, or upon the
occurrence of any event as a result of which, the prospectus included
in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, which untrue statement or omission requires amendment of
the registration statement or supplementing of the prospectus, and, at
the request of such requesting Holder, prepare and furnish to such
requesting Holder a reasonable number of copies of a supplement to
such prospectus as may be necessary so that, as thereafter delivered
to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that with
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respect to Registrable Securities registered pursuant to such
registration statement each Holder agrees that such Holder will not
sell any Registrable Securities pursuant to such registration
statement during the time after the furnishing of the Company's notice
that the Company is preparing and filing with the Commission a
supplement to or an amendment of such prospectus or registration
statement and such period shall be a Suspension Period hereunder;
(vi) use reasonable commercial efforts to obtain the
withdrawal, at the earliest possible time, of any order suspending the
effectiveness of the Shelf Registration Statement;
(vii) cooperate with the Holders of Registrable
Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be
sold pursuant to the Shelf Registration Statement free of any
restrictive legends and in such denominations and registered in such
names as the Holders may request;
(viii) use its best efforts to cause the Shares and
all shares of Common Stock issuable upon conversion of the Notes to be
listed on any securities exchange or quoted on any quotation system on
which any shares of Common Stock are listed;
(ix) 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
(x) 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. (i) Incidental Underwritten
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Offerings. If the Company at any time proposes to register any
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securities 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 securities to arrange for such underwriters to
include, on the same terms as the other securities being distributed,
the Securities to be offered and sold by such Holder, together with
such other securities to be distributed by or through such
underwriters; provided, however, that if the managing underwriter for
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a registration pursuant to this Section 4(d) that involves an
underwritten offering shall advise the Company that, in its opinion,
the inclusion of the amount and kind of Registrable Securities to be
sold for the account of Qualified Holders (as hereinafter defined)
would adversely affect the price for
securities that the Company will derive from the offering or otherwise
materially and adversely affect the success of the offering for the
Company, then the number and kind of Registrable Securities to be sold
for the account of such Qualified Holders shall be reduced (and may be
reduced to zero) in accordance with the managing underwriter's
recommendation to the minimum extent necessary to eliminate such
adverse effect and, provided further, that if the number of
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Registrable Securities to be included in any registration is reduced
(but not to zero), the number of such securities to be included in
such registration for selling holders shall be allocated pro rata
among all requesting Qualified Holders on the basis of the relative
number of shares of such Common Stock (assuming, for the purpose of
making such computation, the conversion, exchange or exercise of any
securities convertible into or exchangeable or exercisable for Common
Stock) each such Holder has requested to be included in such
registration. For the purposes hereof, the term "Qualified Holders"
shall mean the Holders and any other Person who now owns or may
hereafter own any Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock. If, as a result of the
proration provisions of this Section 4(d), any Holder shall not be
entitled to include all Registrable Securities in a registration that
such Holder has requested be included, such Holder may elect to
withdraw its Registrable Securities from the registration; provided,
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however, that such withdrawal election shall be irrevocable and,
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after making a withdrawal election, a Holder shall no longer have any
right to include Registrable Securities in the registration as to
which such withdrawal election was made. Each Holder, including
Registrable Securities in the registration, 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.
(ii) Holdback Agreements; Press Releases.
-----------------------------------
(A) If any registration of Registrable Securities
pursuant to this Agreement shall be effected by means of an
Underwritten Offering and any of the Securities 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 Securities (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) 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 connection
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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 reasonable commercial 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 reasonably
satisfactory to the Company.
(f) Indemnification. (i) Indemnification by the Company.
--------------- ------------------------------
The Company shall indemnify and hold harmless each Holder of
Registrable Securities covered by any registration statement filed
pursuant to this Agreement, and any underwriter
or selling agent selected by one or more Holders with the consent of
the Company with respect to such Registrable Securities, the
directors, trustees and officers, and each other person, if any, who
controls such Holder, underwriter or selling agent within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act
against any losses, claims, damages, liabilities or expenses,
including reasonable fees and expenses of counsel (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, final prospectus (as supplemented, if the Company shall
have supplemented the same) if used during the period in which the
Company is required to keep the registration statement to which such
prospectus relates current and otherwise in compliance with Section
10(a) of the Securities Act, or (B) any omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
--------
however, that the Company shall have no obligation to provide any
-------
indemnification hereunder if any such Losses (or actions or
proceedings in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, preliminary prospectus
or final prospectus, as the case may be, in reliance upon and in
conformity with written information furnished to the Company by such
Holder specifically for inclusion in such registration statement; and
provided, further, that the Company shall have no obligation to
-------- -------
provide any indemnification hereunder if any such Losses arise out of
or are based upon an untrue statement or alleged untrue statement or
omission or alleged omission in a preliminary prospectus or the final
prospectus, if such untrue statement or alleged untrue statement or
omission or alleged omission shall have been corrected in the final
prospectus (in the case of an untrue or an alleged untrue statement or
omission or alleged omission in any preliminary prospectus) or in any
supplement to the final prospectus (in the case of an untrue statement
or alleged untrue statement or omission or alleged omission in the
final prospectus) and such Holder or any such other person shall have
failed to deliver or cause to be delivered (or deemed delivered) to
the applicable purchaser of the Registrable Securities such final
prospectus, or final prospectus as so supplemented, as the
case may be, 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.
(ii) Indemnification by the Holders. Each Holder and
------------------------------
each other person who controls such Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act,
shall indemnify and hold harmless (in the same manner and to the same
extent as set forth in Section 4(f)(i) hereof) the Company, each
director of the Company, each officer of the Company who shall sign
such registration statement and each other person, if any, who
controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, with respect to any
untrue statement in or omission from any registration statement filed
by the Company pursuant to this Agreement, any preliminary prospectus
or any final prospectus included in such registration statement, or
any amendment or supplement to such registration statement or
prospectus, as the case may be, of a material fact if such statement
or omission was made in reliance upon and in conformity with written
information furnished to the Company or any of its representatives by
such Holder or such other person, if any, who controls such Holder
within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act specifically for inclusion in such registration
statement, preliminary prospectus or final prospectus, as the case may
be.
(iii) Notice of Claims, etc. Promptly after
----------------------
receipt by an indemnified party of notice of the commencement of any
action or proceeding (an "Action") involving a claim referred to in
Sections 4(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 there
of, 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 reasonable 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), together with the reasonable fees and
expenses of such local counsel as may be reasonably selected by such
counsel (or firm of counsel), 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.
(iv) Contribution. If the indemnification provided for
------------
in this Section 4 is unavailable or insufficient to hold harmless an
indemnified party in respect of any Losses, then each indemnifying
party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party, as
a result of such Losses in such proportion as appropriate to reflect
the relative fault of the Company, on the one hand, and the
indemnified party, on the other hand, and to the parties' relative
intent, knowledge, access to information and opportunity to correct or
mitigate the damage in respect of or prevent any untrue statement or
omission giving rise to such indemnification obligation. The Company
and each Holder agree that it would 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 delivered to the indemnifying
party in respect of any particular Loss, damage or liability that is
incurred.
(vi) Limitation on Seller's Payments. Notwithstanding
-------------------------------
any provision of this Agreement to the contrary, the liability of each
Holder of Registrable Securities under this Section 4(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.
(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 5. Additional Interest or Payments Under Certain
---------------------------------------------
Circumstances.
-------------
(a) Registration Defaults. Additional interest shall be
---------------------
paid to the Holders of the Notes, and payments shall be made to the
Holders of Shares, as set forth in Sections 5(c) and 5(d),
respectively, if any of the following events occurs (each such event
in clauses (i) through (iii) below being herein called a "Registration
Default"):
(i) if by the earlier to occur of (x) March 31, 1997 and
(y) the fifth business day next following the date on which the
Company files with the Commission its Annual Report on Form 10-K
for its fiscal year ended December 31, 1996, the Shelf
Registration Statement has not been filed with the Commission;
(ii) if by the earlier to occur of (x) May 31, 1997 and (y)
the 65th day next following the date on which the Company files
with the Commission its Annual Report on Form 10-K for its fiscal
year ended December 31, 1996, the Shelf Registration Statement
has not been declared effective by the Commission; or
(iii) if after the Shelf Registration Statement is declared
effective (A) the Shelf Registration Statement thereafter ceases
to be effective; or (B) the Shelf Registration Statement or the
related prospectus ceases to be usable (in each case except as
permitted in paragraph (b) below) in connection with resales of
Registrable Securities in accordance with and during the periods
specified herein because of a Suspension Period.
(b) Certain Limitations. A Registration Default referred
-------------------
to in Section 5(a)(iii) shall be deemed not to have occurred and be
continuing in relation to the Shelf Registration Statement or the
related prospectus if (i) such Registration Default has occurred
solely as a result of (x) the filing of a post-effective amendment to
the Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-
effective amendment is not yet effective and needs to be declared
effective to permit Holders to use the related prospectus or (y) other
material events, with respect to the Company that would need to be
described in the Shelf Registration Statement or the related
prospectus and (ii) in the case of clause (y), the Company proceeds
promptly and in good faith to amend or supplement the Shelf
Registration Statement and related prospectus to describe such events
if the Company has determined in good faith that there are no material
legal or commercial impediments in so doing; provided, however, that
-------- -------
in any case if such Registration Default occurs for a continuous
period in excess of 45 days, Additional Payment shall be payable in
accordance with the Section 5(a) from the day such Registration
Default occurs until such Registration Default is cured.
(c) Additional Interest. Additional interest shall
-------------------
accrue on the Notes over and above the interest set forth
in the title of the Notes ("Additional Interest") from and including
the date on which any Registration Default shall occur, to but
excluding the date on which all such Registration Defaults have been
cured (a "Default Period"), at a rate of 1.00% per annum. Any amounts
of Additional Interest due pursuant to this Section 5 will be paid in
cash on the regular interest payment dates with respect to the Notes
and will be paid to the Persons to whom the regular interest payments
are made. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the principal
amount of the Notes, multiplied by a fraction, the numerator of which
is the number of days during the Default Period and the denominator of
which is 360. The indebtedness represented by the Additional Interest
shall be subordinated in right of payment to all existing and future
Senior Indebtedness (as defined in the Indenture) as and to the same
extent as the Notes.
(d) Additional Payments. Payments shall be payable to the
-------------------
Holders of Shares in respect of any Default Period ("Additional
Payments"). Any amount of Additional Payments due pursuant to this
Section 5 will be paid in cash on the regular interest payment dates
with respect to the Note and will be paid to the Persons who are the
registered holders of such Shares on such dates. The amount of
Additional Payments to be made to any Holder in respect of any Default
Period shall be equal to the product of (i) 1.00%, multiplied by (ii)
---------- --
the number of Shares held by such Holder, multiplied by (iii) $49.16,
---------- --
multiplied by (iv) a fraction, the numerator of which is the number of
---------- --
days during such Default Period and the denominator of which is 360.
The obligation represented by the Additional Payments shall be
subordinated in right of payment to all existing and future Senior
Indebtedness (as defined in the Indenture) as and to the same extent
as the Notes. For purposes of this Section 5(d), the "Shares" shall
include shares of Common Stock issued upon the conversion of the
Notes.
(e) Liquidated Damages. Notwithstanding anything to the
------------------
contrary contained in this Agreement, it is hereby acknowledged and
agreed that the Company shall have no liability for monetary damages
to any Holder for any breaches, failures to comply or violations by it
of Section 4 of this Agreement except as expressly provided in Section
4(f) or 4(g) hereof or this Section 5; provided, however, in the event
-------- -------
that the Company breaches, fails to comply or violates the provisions
of Section 4 hereof (other than Section 4(f) or 4(g) hereof), the
Holders shall be entitled to, and the Company shall not oppose the
granting of, equitable relief, including injunction and specific
performance.
(f) Withholding Taxes. The Company may withhold directly
-----------------
or indirectly from any payments hereunder to the Holders all United
States federal, state, local or other taxes that shall be required
pursuant to any law or governmental regulation.
The Holder shall:
(i) deliver to the Company (A) two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, or
successor applicable form, as they case may be, and (B) an
Internal Revenue Service Form W-8, or successor applicable form;
and
(ii) deliver to the Company two further copies of any such
form on or before the date that such form expires or becomes
obsolete and after the occurrence of any event requiring a change
in the most recent form previously delivered by it to the
Company.
Any person that shall become a Holder shall, upon the
effectiveness of the related transfer, provide the foregoing forms to
the Company.
Subject to compliance with the foregoing, the Company shall
make all payments under this Agreement free and clear of, and without
deduction or withholding for or on account of, income or withholding
taxes to the extent permitted by then applicable law. The Holder shall
cooperate with the Company by providing any other information
reasonably requested by the Company to permit payments under this
Agreement to be made free and clear of withholding tax. In the event
that the Company is required to withhold tax from any payment under
this Agreement, the Company shall, as promptly as practicable, send to
the Holder a certified copy of an original receipt received by the
Company showing payment thereof.
Section 6. 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 7. 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 7, whether or not such Registrable Securities shall have been
marked to indicate such consent.
Section 8. Notices. All notices hereunder must be in writing
-------
and will be deemed to have been duly given upon receipt of hand
delivery; certified or registered mail; return receipt requested; or
telecopy transmission with confirmation of receipt:
(i) If to the Company:
SEACOR Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
and to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to the Holders:
c/o SMIT Internationale ▇.▇.
▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇) ▇▇-▇▇▇-▇▇-▇▇
with a copy to: Mr. Cees W.D. Bom
and to:
Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Such names, addresses and telecopy numbers may be changed by
written notice to each person listed above.
Section 9. 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 10. 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 11. 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). This Agreement has been executed and delivered in
Rotterdam, The Netherlands.
Section 12. 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 13. Termination. The rights and obligations under this
-----------
Agreement shall automatically terminate upon the first 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, except that the obligations of the parties
under Sections 4(f) and of the Company under Section 4(g) shall
survive any such termination.
Section 14. Miscellaneous. The Company shall not after the date
-------------
of this Agreement enter into any agreement with respect to its
Securities 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: Attorney-in-Fact
SMIT INTERNATIONAL OVERSEAS B.V.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Area Manager
