Exhibit 4.1
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
SEACOR HOLDINGS INC.
____________________
Dated as of March 16, 2005
____________________
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as
of
March 16, 2005, is entered into by and
among SEACOR HOLDINGS INC., a Delaware
corporation (including its successors, the
"Company"), and the persons (each a
"Holder" and collectively, the "Holders")
listed on the signature pages hereof.
RECITALS
WHEREAS, the Company, SBLK Acquisition Corp., a Delaware
corporation,
CORBULK LLC, a Delaware limited liability
company and Seabulk International,
Inc., a Delaware corporation, are parties
to an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger
Agreement"); and
WHEREAS, pursuant to the Merger Agreement, the Holders will
receive
shares of common stock, par value $0.01 per
share (the "Common Stock"), of the
Company.
NOW, THEREFORE, in consideration of the promises, mutual
covenants
and agreements hereinafter contained and
for other good and valuable
consideration, the receipt and sufficiency
of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE 1
EFFECTIVENESS; DEFINITIONS
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1.1 Effectiveness. This agreement shall be of no force or
effect
prior to the "Effective Time" as defined in
the Merger Agreement (hereinafter,
the "Effective Time") and shall, except as
otherwise provided herein, be of full
force and effect from and after the
Effective Time. In the event that the Merger
Agreement is terminated for any reason
prior to the Effective Time, this
Agreement shall terminate.
1.2 Definitions.
"Advice" shall have the meaning set forth in Section 2.4.3
hereof.
"Affiliate" means, with respect to any Person, any Person who,
directly or indirectly, controls, is
controlled by or is under common control
with any Person.
"Agreement" shall have the meaning set forth in the
introductory
paragraph hereof.
"Broker-Dealer" means a broker or dealer registered with the SEC
as
such under the Exchange Act or a "bank" as
defined by the Exchange Act.
"Business Day" means a day other than a Saturday, Sunday or other
day
on which commercial banks are authorized or
required to close under the laws of
the United States or the State of New
York.
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"Common Stock" shall have the meaning set forth in the Recitals
hereof.
"Common Stock Equivalents" means, without duplication with any
other
Common Stock or Common Stock Equivalents,
any rights, warrants, options,
convertible securities or indebtedness,
exchangeable securities or indebtedness,
or other rights, exercisable for or
convertible or exchangeable into, directly
or indirectly, Common Stock of the Company
and securities convertible or
exchangeable into Common Stock of the
Company, whether at the time of issuance
or upon the passage of time or the
occurrence of such future event.
"Company" shall have the meaning set forth in the introductory
paragraph hereof.
"Company Notice" shall have the meaning set forth in Section
2.3.1
hereof.
"Deferral Period" shall have the meaning set forth in Section
2.6
hereof.
"Effective Time" shall have the meaning set forth in Section
1.1
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended,
or any similar federal statute, and the
rules and regulations promulgated by the
SEC thereunder.
"Holder" and "Holders" shall have the meaning set forth in the
introductory paragraph of this Agreement
and shall include any Affiliate of any
such Holder to whom Registrable Securities
are transferred by such Holder.
"NASD" means the National Association of Securities Dealers,
Inc.
"Nautilus" means Nautilus Acquisition, L.P. and any of its
Affiliates.
"Notifying Holder" shall have the meaning set forth in Section
2.2.1
hereof.
"Person" or "person" means any individual, corporation,
partnership,
limited liability company, joint venture,
association, joint-stock company,
trust, unincorporated organization or
government or other agency or political
subdivision thereof.
"Piggyback Notice" shall have the meaning set forth in Section
2.2.1.
"Receiving Holders" shall have the meaning set forth in Section
2.2.1
hereof.
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"register," "registered" and "registration" refer to a
registration
effected by preparing and filing a
registration statement in compliance with the
Securities Act, and the declaration or
ordering of the effectiveness of such
registration statement.
"Registrable Securities" means the shares of Common Stock of
the
Company to be acquired by the Holders
pursuant to the transactions contemplated
by the Merger Agreement; provided, however,
that Registrable Securities shall
not include any such shares sold or
otherwise transferred by a Holder except in
the event of a transfer by a Holder to one
or more of such Holder's Affiliates.
"Registration Expenses" means all expenses incident to
registration
of the Registrable Securities hereunder,
including, without limitation, (a) all
SEC and any NASD registration and filing
fees and expenses, (b) all fees and
expenses in connection with the
registration or qualification of the Registrable
Securities for offering and sale under the
securities or "Blue Sky" laws of any
state or other jurisdiction of the United
States of America and, in the case of
an underwritten offering, determination of
their eligibility for investment
under the laws of such jurisdictions as the
managing underwriter or underwriters
may designate, including reasonable fees
and disbursements (based on customary
hourly rates), if any, of counsel for the
underwriters in connection with such
registrations or qualifications and
determination, (c) all expenses relating to
the preparation, printing, distribution and
reproduction of the registration
statement required to be filed hereunder,
each prospectus included therein or
prepared for distribution pursuant hereto,
each amendment or supplement to the
foregoing, the expenses of preparing the
Registrable Securities in a form for
delivery for purchase pursuant to such
registration or qualification and the
expenses of printing or producing any
underwriting agreement(s) and agreement(s)
among underwriters and any "Blue Sky" or
legal investment memoranda, any selling
agreements and all other documents to be
used in connection with the offering,
sale or delivery of Registrable Securities,
(d) messenger, telephone and
delivery expenses of the Company and
out-of-pocket travel expenses incurred by
or for the Company's personnel for travel
undertaken for any "road show" made in
connection with the offering of securities
registered thereby, (e) fees and
expenses of any transfer agent and
registrar with respect to the delivery of any
Registrable Securities and any escrow agent
or custodian involved in the
offering, (f) fees, disbursements and
expenses of counsel and independent
certified public accountants of the Company
incurred in connection with the
registration, qualification and offering of
the Registrable Securities
(including the expenses of any opinions or
"cold comfort" letters required by or
incident to such performance and
compliance), (g) fees, expenses and
disbursements of any other persons retained
by the Company, including special
experts retained by the Company in
connection with such registration, (h)
Securities Act liability insurance (if the
Company elects to obtain such
insurance) and (i) the fees and expenses
incurred in connection with the
quotation or listing of shares of
Registrable Securities on any securities
exchange or automated securities quotation
system. Any commissions, fees,
discounts or, except as specified in the
immediately preceding sentence,
expenses of any underwriter or Holder
incurred in connection with an
underwritten offering of securities
registered in accordance with this Agreement
shall not be considered "Registration
Expenses."
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"Required Holders" means Holders who, in the aggregate, then own
more
than 50% of the Registrable Securities, and
who, severally, each then own (i) in
the case of Nautilus, more than 50% of the
Registrable Securities owned by
Nautilus and (ii) in the case of
Riverstone, more than 50% of the Registrable
Securities owned by Riverstone.
"Riverstone" means each of C/R Marine Domestic Partnership, L.P.,
C/R
Marine Non-U.S. Partnership, L.P., C/R
Marine Coinvestment, L.P. or C/R Marine
Coinvestment II, L.P. and any of their
Affiliates.
"Regulation M" means Regulation M under the Securities Act and
the
Exchange Act as in effect on the date
hereof and such rule as from time to time
amended and any successor rule or
regulation under the Securities Act or
Exchange Act.
"Rule 144" means Rule 144 under the Securities Act as in effect
on
the date hereof and such rule as from time
to time amended and any successor
rule or regulation under the Securities
Act.
"Rule 145" means Rule 145 under the Securities Act as in effect
on
the date hereof and such rule as from time
to time amended and any successor
rule or regulation under the Securities
Act.
"Rule 415" means Rule 415 under the Securities Act as in effect
on
the date hereof and such rule as from time
to time amended and nay successor
rule or regulation under the Securities
Act.
"SEC" means the Securities and Exchange Commission or any other
federal agency at the time administering
the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or
any
similar federal statute, and the rules and
regulations promulgated by the SEC
thereunder.
"Seller Affiliates" shall have the meaning set forth in Section
2.5.1
hereof.
"Shelf Registration Statement" shall have the meaning provided
in
Section 2.1.1 hereof.
"Suspension Notice" shall have the meaning set forth in Section
2.4.3
hereof.
"Underwriting Notice" shall have the meaning set forth in
Section
2.2.1 hereof.
1.3 Rules of Construction. Unless the context otherwise
requires
(1) a term has the
meaning assigned to it;
(2) "or" is not
exclusive;
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(3) words in the
singular include the plural, and words in the
plural include the singular;
(4) provisions apply
to successive events and transactions; and
(5) "herein," "hereof"
and other words of similar import refer
to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
ARTICLE 2
REGISTRATION
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2.1 Shelf Registration.
2.1.1 Shelf Registration Statement. The Company shall as promptly
as
practicable (but in no event more than 30
days after the Closing Date (as
defined in the Merger Agreement)) prepare
and file with the SEC and, thereafter,
use its reasonable best efforts to have
declared effective as promptly as
reasonably practicable a registration
statement (the "Shelf Registration
Statement") in accordance with Section
2.4.1 hereof relating to the offer and
sale by the Holders at any time and from
time to time on a delayed or continuous
basis in accordance with Rule 415, through
such method or methods of
distribution as the Holders shall select,
and in accordance with this Agreement,
of all the Registrable Securities, and,
subject to Section 2.6 hereof, the
Company shall use reasonable best efforts
to keep the Shelf Registration
Statement effective under the Securities
Act until the third anniversary of the
Effective Time (or for such longer period
if extended pursuant to Section 2.6
hereof). In the event the Shelf
Registration Statement cannot be kept effective
for such period, the Company shall, subject
to Section 2.6 hereof, use
reasonable best efforts to prepare and file
with the SEC and have declared
effective as promptly as practicable
another registration statement on the same
terms and conditions as the initial Shelf
Registration Statement and such
registration statement shall be considered
the Shelf Registration Statement for
purposes hereof. The Company shall
supplement and amend the Shelf Registration
Statement to reflect changes in the manner
of distribution reasonably requested
by the Holders.
2.1.2 Adjustment. If at any time the outstanding shares of
Registrable Securities as a class shall
have been increased, decreased, changed
into or exchanged for a different number or
class of shares or securities as a
result of a reorganization,
recapitalization, reclassification, stock dividend,
stock split, reverse stock split,
combination or exchange of shares or other
similar change in capitalization, then an
appropriate and proportionate
adjustment shall be made to the number of
shares of such stock to be registered
on the Shelf Registration Statement
pursuant to Section 2.1.1 hereof.
2.1.3 Expenses. The Company will pay all of the Registration
Expenses
in connection with any registration
pursuant to this Section 2.1; provided,
however, that in any underwritten offering
or other trade by the Holders
effectuated pursuant to this Section 2.1,
the Holders shall pay any underwriting
commissions and discounts and fees and
expenses of counsel to such Holders.
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2.1.4 Notice of Intended Use of Prospectus. If, at any time on
or
after the first anniversary of the
Effective Time, any Holder intends to use or
deliver the prospectus forming a part of
the Shelf Registration Statement (or
any prospectus supplement or amendment
thereto) in connection with any offer or
sale of Registrable Securities covered
thereby, such Holder shall first give
written notice thereof to the Company at
least two (2) Business Days prior to
the first date such prospectus or
prospectus supplement will be used or
delivered by such Holder in connection with
such offer or sale. If applicable,
by the close of business on the Business
Day following its receipt of such
notice, the Company shall provide a
Suspension Notice to any Holder delivering a
notice pursuant this Section 2.1.4 of any
suspension of registration rights
pursuant to Section 2.6 hereof.
2.2 Certain Underwritten Offerings Pursuant to the Shelf
Registration
Statement.
2.2.1
Underwriting Notice. In the event that the Holders of 50% or
more of the Registrable Securities
outstanding at such time (and, with respect
to Riverstone, as otherwise permitted by
the last sentence of this Section
2.2.1) shall seek to undertake an
underwritten offering of any Registrable
Securities pursuant to the Shelf
Registration Statement, such Holders shall
first give written notice thereof (the
"Underwriting Notice", and each such
party giving notice, a "Notifying Holder")
to the other Holders (the "Receiving
Holders") and the Company at least ten (10)
Business Days prior to the
anticipated initiation of such underwritten
offering, specifying the number of
Registrable Securities sought to be
offered. The Company shall advise the
Notifying Holders and the Receiving Holders
and each Receiving Holder shall
advise the Notifying Holders and the
Company in writing within five (5) Business
Days after receipt of such Underwriting
Notice (or if the Notifying Holders
intend to execute the underwriting
agreement with respect to such underwritten
offering prior to such date, the Notifying
Holders shall so notify the Company
and the Receiving Holders in the
Underwriting Notice, and the Company and each
Receiving Holder shall advise the Notifying
Holder in writing on or before the
date on which the underwriting agreement is
executed but no less than five (5)
Business Days after receipt of such
Underwriting Notice), specifying the number,
if any, of shares of Common Stock of the
Company or Registrable Securities the
Company and such Receiving Holders, as
applicable, seek to include in such
underwritten offering (each a "Piggyback
Notice"), and subject to the next
sentence, such shares of Common Stock of
the Company and Registrable Securities
shall be included in such underwritten
offering. If the managing underwriter
shall advise the Company and Holders in
writing that, in its opinion, the number
of securities requested to be included in
such underwritten offering exceeds the
number which can be sold in such offering
without adversely affecting the
offering, including with respect to price,
the Company and Holders will include
in such underwritten offering, to the
extent of the number which the Holders are
so advised can be sold in such offering,
(i) first, a pro rata amount, based
upon the number of Registrable Securities
sought to be offered by each Holder as
set forth in the Underwriting Notice and
the Piggyback Notice, (ii) second,
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securities of the Company sought to be
offered by the Company as set forth in
the Piggyback Notice and (iii) third,
securities of the Company held by other
Persons having registration rights existing
as of the date of this Agreement or
granted in accordance with Section 2.3.5
hereof proposed to be included in such
registration by the holders thereof.
Notwithstanding anything contained herein
to the contrary, and whether or not
Riverstone owns 50% or more of the
Registrable Securities outstanding at such
time, Riverstone shall be entitled to
be the Notifying Holder for at least one of
the three underwritten offerings
permitted herein, so long as Riverstone
holds greater than the minimum amount
specified in Section 2.2.2(D) hereof.
2.2.2 Procedures. Subject to Section 2.6 hereof, the Company
shall
(i) make reasonably available for
inspection by the Holders, any underwriter
participating in any disposition pursuant
to the Shelf Registration Statement
and any attorney, accountant or other agent
retained by the Holders or any such
underwriter, all relevant financial and
other records, pertinent corporate
documents and properties of the Company,
(ii) cause the Company's officers,
directors, employees, and use its
reasonable best efforts to cause the Company's
accountants and auditors, to supply all
relevant information reasonably
requested by the Holders or any such
underwriter, attorney, accountant or agent
in connection with the underwritten
offering, (iii) as may be reasonably
requested, cause the Company's officers and
employees to participate in investor
presentations to prospective investors and
analysts, including via "road shows,"
and (iv) generally accommodate any
participating underwriter's reasonable
requests relating to its due diligence
efforts; provided, however, that the
Holders shall only be entitled to effect up
to a total of three (3) underwritten
offerings of Registrable Securities
pursuant to the Shelf Registration
Statement; provided, further, that no such
offering pursuant to Section 2.2.1
shall be made by the Holders:
(A) on more than one occasion during any period of ninety (90)
consecutive days after any other such
offering of Registrable Securities in
accordance with this Section 2.2 was
consummated;
(B) during the fifteen (15) days prior to the anticipated
consummation of an offering of securities
of the same class as the Registrable
Securities and during the sixty (60) days
after the consummation of such an
offering, except in the case of an offering
registered on Form S-4 or S-8 (or
any successor form) for the registration of
securities to be offered in a
transaction of the type referred to in Rule
145 or to be offered to employees of
and/or consultants to the Company or
subsidiaries thereof;
(C) within ninety (90) days of the consummation of an offering
of
Registrable Securities in which the Holders
were offered the opportunity to
participate pursuant to Section 2.3 hereof,
provided that all the Registrable
Securities requested by the Holders to be
so registered were registered for sale
in such offering; and
(D) unless the Holders will offer for sale at least seven
hundred
fifty thousand (750,000) shares of
Registrable Securities.
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2.2.3 Effective Registration Statement. For purposes of determining
a
Holder's right to sell Registrable
Securities pursuant to the Shelf Registration
Statement in an underwritten offering
referred to in Section 2.2.1 hereof, an
offering of such nature shall not be deemed
to have been effected unless (A) a
registration statement with respect thereto
has become effective and remained in
effect for the period set forth in Section
2.4.1(b) hereof (provided, however,
that a registration which does not become
effective solely by reason of the
refusal of the Holders to proceed with the
offering or the refusal by the
Company to proceed based upon the written
opinion of outside counsel to the lead
underwriter delivered to and reasonably
acceptable to the Company that so
proceeding is inappropriate as a legal
matter for a reason relating to
circumstances of the Holders shall be
deemed to have been effected) and (B)
after it has become effective, such
registration has not become subject to any
stop order, injunction or other order or
requirement of the SEC or other
governmental agency or court for any
reason, other than solely by reason of some
act or omission by the Holders with respect
thereto, or such stop order,
injunction or other order has been lifted
so as to permit such offering and sale
of Registrable Securities and (C) the
conditions to closing specified in the
purchase agreement or underwriting
agreement entered into in connection with
such registration are satisfied or any
failure to satisfy such conditions was
solely by reason of some act or omission by
the Holders.
2.2.4 Underwriting Agreements. If requested by the underwriters
for
any underwritten offering by the Holders to
be conducted pursuant to Section
2.2.1 hereof, the Company will enter into
an underwriting agreement with such
underwriters for such offering, such
agreement to be in customary form for
offerings of this type and acceptable to
the Holders, whose acceptance shall not
be unreasonably withheld, to contain such
representations and warranties by the
Company and such other terms as are
generally prevailing in agreements of this
type, including, without limitation,
representations and indemnities by the
Company and other customary
indemnifications. For illustrative purposes, the
representations and warranties and such
other terms contained therein and agreed
to by the Company in that certain
Registration Rights Agreement, dated as of
December 17, 2004, between the Company and
Credit Suisse First Boston LLC, shall
be deemed customary; provided, however, the
parties acknowledge and agree that
certain additional representations and
warranties and other terms may be added
or changed based on the facts and
circumstances at the time of the Company's
entering into the underwriting agreement.
The Holders will cooperate with the
Company in the negotiation of the
underwriting agreement and will give
consideration to the reasonable suggestions
of the Company regarding the form
thereof.
2.2.5 Holdback Agreement. Unless the managing underwriter
otherwise
agrees, each of the Company and the Holders
agrees (and the Company agrees, in
connection with any underwritten offering
effected in accordance with this
Section 2.2, to use its reasonable best
efforts to cause its Affiliates to
agree) not to effect any public sale or
private offer or distribution of any
Common Stock or Common Stock Equivalents
during the period required under
Regulation M prior to the consummation of
any underwritten offering in which the
Holders have the opportunity to participate
and during such time period after
the consummation of any such underwritten
offering of Common Stock (not to
exceed forty-five (45) days) (except, if
applicable, as part of such
underwritten offering) as the Company and
the managing underwriter may agree.
Any discretionary waiver or termination of
the requirements under the foregoing
provisions made by the managing underwriter
shall apply to each seller of
Registrable Securities on a pro rata basis
in accordance with the number of
Registrable Securities held by each
seller.
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2.2.6 Selection of Underwriters. In an underwritten offering of
Registrable Securities effected pursuant to
this Section 2.2, the Notifying
Holders shall select the investment banking
firm or firms to manage the
underwritten offering; provided, however,
that such selection shall be subject
to the consent of the Company, which
consent shall not be unreasonably withheld.
2.2.7 Participation in Underwritten Offerings. Neither a Holder
nor
any other Person may participate in any
underwritten offering in which
Registrable Securities are to be offered
pursuant to this Section 2.2 unless
such Person (i) agrees to sell such
Person's securities on the basis provided in
any underwriting arrangements approved,
subject to the terms and conditions
hereof, by the Company and the Holders to
be included in such underwritten
offering and (ii) completes and executes
all questionnaires, indemnities,
underwriting agreements and other documents
(other than powers of attorney)
reasonably required under the terms of such
underwriting arrangements.
2.3 Piggyback Underwritten Offerings.
2.3.1 Right to Piggyback. In the event that the Company shall seek
to
undertake an underwritten offering of
registered shares of Common Stock of the
Company (whether for the account of the
Company or the account of any
securityholder of the Company) on or before
the third anniversary of the
Effective Time (or for such longer period
if extended pursuant to Section 2.6
hereof), except in the case of an offering
registered on Form S-4 or S-8 (or any
successor form) for the registration of
securities to be offered in a
transaction of the type referred to in Rule
145 or to be offered to employees of
and/or consultants to the Company or
subsidiaries thereof, the Company shall
first give written notice thereof (the
"Company Notice") to each Holder of
Registrable Securities, which Company
Notice shall be given not less than six
(6) Business Days prior to the ant
