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
