-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UtrnlehREyFe65+Mw3wJH52rUJVco6r+rKB7xGmkV3uczxIyWUG6yjcskrZb3NED ROEB/XVI1nAHleoKAn+Z0Q== 0000909518-01-000286.txt : 20010312 0000909518-01-000286.hdr.sgml : 20010312 ACCESSION NUMBER: 0000909518-01-000286 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20010309 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SEACOR SMIT INC CENTRAL INDEX KEY: 0000859598 STANDARD INDUSTRIAL CLASSIFICATION: DEEP SEA FOREIGN TRANSPORTATION OF FREIGHT [4412] IRS NUMBER: 133542736 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-56842 FILM NUMBER: 1565673 BUSINESS ADDRESS: STREET 1: 11200 RICHMOND AVE STREET 2: SUITE 400 CITY: HOUSTON STATE: TX ZIP: 77082 BUSINESS PHONE: 7137825990 MAIL ADDRESS: STREET 1: 11200 WESTHEIMER STREET 2: SUITE 850 CITY: HOUSTON STATE: TX ZIP: 77042 FORMER COMPANY: FORMER CONFORMED NAME: SEACOR HOLDINGS INC DATE OF NAME CHANGE: 19950327 FORMER COMPANY: FORMER CONFORMED NAME: SEACORE HOLDINGS INC DATE OF NAME CHANGE: 19950313 S-3 1 0001.txt As filed with the Securities and Exchange Commission on March 9, 2001 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------------- SEACOR SMIT INC. (Exact name of registrant as specified in its charter) DELAWARE 13-3542736 (State or other jurisdiction (I.R.S. employer of incorporation or organization) identification number) 11200 RICHMOND AVE., SUITE 400 HOUSTON, TEXAS 77082 (713) 782-5990 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) ----------------------------- RANDALL BLANK EXECUTIVE VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND SECRETARY 1370 AVENUE OF THE AMERICAS, 25TH FLOOR NEW YORK, NEW YORK 10019 (212) 307-6633 (Name, address, including zip code, and telephone number, including area code, of agent for service) ----------------------------- COPY TO: DAVID E. ZELTNER, ESQ. WEIL, GOTSHAL & MANGES LLP 767 FIFTH AVENUE NEW YORK, NEW YORK 10153 (212) 310-8000 ----------------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after this Registration Statement becomes effective. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. |_| If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. |X| If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earliest effective registration statement for the same offering. |_| If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration number of the earlier effective registration statement for the same offering. |_| If delivery of the Prospectus is expected to be made pursuant to Rule 434, please check the following box. |_| NY2:\1002779\06\LHQZ06!.DOC\73293.0004
CALCULATION OF REGISTRATION FEE - --------------------------- -------------------------- -------------------------- ------------------------ ------------------------ Title of Security Amount to be Offering Price Aggregate Offering to be Registered Registered Per Share (1) Price (1) Registration Fee - --------------------------- -------------------------- -------------------------- ------------------------ ------------------------ Common Stock, 433,629 shares $48.745 $21,137,246 $5,285 par value $.01 per share - --------------------------- -------------------------- -------------------------- ------------------------ ------------------------
(1) Estimated solely for purposes of calculating the amount of the registration fee. This estimate has been calculated in accordance with Rule 457 under the Securities Act of 1933, based on the average of the high and low sales prices per share reported on the New York Stock Exchange on March 2, 2001. THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. The information contained in this prospectus is not complete and may be changed. The selling shareholders may not sell any shares of the common stock until our registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities in any state where the offer or sale is not permitted. SUBJECT TO COMPLETION, DATED MARCH 9, 2001 433,629 Shares [LOGO] SEACOR SMIT INC. Common Stock --------------------- o The selling stockholders named on page 10 are selling 433,629 shares of our common stock. o Our common stock is traded on the New York Stock Exchange under the symbol "CKH." On March 8, 2001, the last reported sale price of the common stock was $50.20 per share. o Our executive offices are located at 11200 Richmond Ave., Suite 400, Houston, Texas 77082 and our telephone number is (713) 782-5990. INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING ON PAGE 2. --------------- NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. --------------- The date of this prospectus is March , 2001. TABLE OF CONTENTS Page Page ---- ---- RISK FACTORS........................ 2 USE OF PROCEEDS.................... 9 ABOUT SEACOR SMIT INC............... 7 SELLING STOCKHOLDERS............... 9 WHERE YOU CAN FIND MORE PLAN OF DISTRIBUTION............... 12 INFORMATION....................... 7 LEGAL MATTERS...................... 13 INCORPORATION OF DOCUMENTS BY EXPERTS............................ 13 REFERENCE......................... 7 FORWARD-LOOKING STATEMENTS........................ 8
You should rely only on the information contained in this document or to which we have referred you. We have not authorized anyone to provide you with information or make representations that are different. This document may only be used where it is legal to sell these securities and is not an offer to sell, or a solicitation of an offer to buy, these securities in any place where the offer or sale is not permitted or where the person making such offer or solicitation is not qualified to do so, or to anyone to whom it is unlawful to make such offer or solicitation. The information in this document may only be accurate on the date of this document. - -------------------------------------------------------------------------------- PROSPECTUS SUMMARY This summary may not contain all the information that may be important to you. You should read the entire prospectus, including the additional documents to which we refer you, before making an investment decision. In this prospectus "we," "our," "us," and "SEACOR" refer to SEACOR SMIT Inc., its consolidated subsidiaries and its equity interest in Chiles Offshore Inc. ABOUT SEACOR SMIT INC. We are a major provider of offshore marine services to the oil and gas exploration and production industry. We are also one of the leading providers of oil spill response services to owners of tank vessels and oil storage, processing and handling facilities, and own a substantial minority equity interest in a company that owns and operates mobile offshore jackup drilling rigs. Additional information regarding us, including our audited financial statements and descriptions of our business, is contained in the documents incorporated by reference in this prospectus. See "Where You Can Find More Information" below and "Incorporation of Documents by Reference" on page 7. Our executive offices are located at 11200 Richmond Ave, Suite 400, Houston, Texas 77082 and our telephone number is (713) 782-5990. - -------------------------------------------------------------------------------- RISK FACTORS We encourage you to consider carefully these risk factors together with all of the information included or incorporated by reference in this prospectus before you decide to purchase shares of our common stock. OUR INDUSTRY IS SUBJECT TO CYCLICALITY, AND A SIGNIFICANT OR PROLONGED DECLINE IN OIL AND GAS PRICES WOULD LIKELY REDUCE THE LEVEL OF EXPLORATION AND DEVELOPMENT OF OFFSHORE AREAS, WHICH WOULD RESULT IN A LOWER DEMAND FOR OUR OFFSHORE MARINE SERVICES AND DRILLING RIGS. Our industry is highly cyclical. Activity in the offshore oil and gas exploration and production industry has a significant impact on our offshore vessel operations and the operations of Chiles Offshore Inc., a drilling rig company in which we hold an approximate 27% equity interest. Factors that affect the level of exploration and development of offshore areas include both short-term and long-term trends in oil and gas prices. In recent years, oil and gas prices have been extremely volatile and, as a result, the level of offshore exploration and drilling activity also has been extremely volatile. Reductions in oil and gas prices generally result in decreased drilling and production and corresponding decreases in demand for our offshore vessel services and Chiles' drilling rigs. Decreased demand for these services and drilling rigs would reduce our revenue and profitability. WE RELY ON SEVERAL CUSTOMERS FOR A SIGNIFICANT SHARE OF OUR REVENUES. THE LOSS OF ANY OF THESE CUSTOMERS COULD ADVERSELY AFFECT OUR BUSINESS AND OPERATING RESULTS. Customers of our offshore marine services are primarily the major oil companies and large independent oil and gas exploration and production companies. The portion of our revenues attributable to any single customer changes over time, depending on the level of relevant activity by the customer, our ability to meet the customer's needs, and other factors, many of which are beyond our control. During 1999, we received approximately 10% of our offshore marine service operating revenues from Chevron Corporation. During 1999, National Response Corporation, our oil spill response service subsidiary, received approximately 25% of its environmental retainer revenue from Coastal Refining and Marketing, Inc. and 13% from Citgo Petroleum Corporation, its two largest customers. WE MAY INCUR SIGNIFICANT COSTS, LIABILITIES AND PENALTIES IN COMPLYING WITH GOVERNMENT REGULATIONS. Government regulation, such as international conventions, federal, state and local laws and regulations in jurisdictions where our vessels operate or are registered, have a significant impact on our offshore marine and environmental response businesses. These regulations relate to worker health and safety, the manning, construction and operation of vessels, oil spills and other aspects of environmental protection. Risks of incurring substantial compliance costs and liabilities and penalties for non-compliance, particularly with respect to environmental laws and regulations, are inherent in our business. If this happens, it could have a substantial negative impact on our profitability and financial position. We cannot predict whether we will incur such costs or penalties in the future. 2 WE FACE INTENSE COMPETITION, WHICH COULD ADVERSELY AFFECT OUR ABILITY TO INCREASE OUR MARKET SHARE AND OUR REVENUES. Our businesses operate in highly competitive industries. High levels of competition could reduce our revenues, increase our expenses and reduce our profitability. In addition to price, service and reputation, important competitive factors for offshore supply fleets include: customers' national flag preference, operating conditions and intended use (all of which determine the suitability of available vessels), complexity of logistical support needs and presence of equipment in the appropriate geographical locations. The important competitive factors in the environmental services business are price, service, reputation, experience and operating capabilities. In addition, we believe that the absence of uniform environmental regulation and enforcement on international, federal, state and local levels has lowered barriers to entry in several market segments and increased the number of competitors. Our oil spill response business faces competition from the Marine Spill Response Corporation (a non-profit corporation funded by the major integrated oil companies), other industry cooperatives and smaller contractors who target specific market niches. In the contract drilling business, customers generally award contracts on a competitive bid basis and contractors can move rigs from areas of low utilization and day rates to areas of greater activity and higher day rates. We believe that, as a result, competition for drilling contracts will continue to be intense for the foreseeable future. Decreases in drilling activity in a major market could depress day rates and could reduce utilization of Chiles' rigs. Substantially all of Chiles' competitors in the business of providing jackup drilling services have substantially larger fleets and are more established as drilling contractors. AN INCREASE IN SUPPLY OF OFFSHORE MARINE VESSELS WOULD LIKELY HAVE A NEGATIVE EFFECT ON THE CHARTER RATES FOR OUR VESSELS, WHICH COULD REDUCE OUR EARNINGS. Expansion of the worldwide offshore marine fleet would increase competition in the markets where we operate. Increased refurbishment of disused or "mothballed" vessels, conversion of vessels from uses other than oil support and related activities or construction of new vessels could all add vessel capacity to current worldwide levels. A significant increase in vessel capacity would lower charter rates and result in a corresponding reduction in our revenues and profitability. MARINE-RELATED RISKS COULD LEAD TO THE DISRUPTION OF OUR OFFSHORE MARINE SERVICES AND TO OUR INCURRENCE OF LIABILITY. The operation of offshore support vessels is subject to various risks, including catastrophic marine disaster, adverse weather and sea conditions, capsizing, grounding, mechanical failure, collision, oil and hazardous substance spills and navigation errors. These risks could endanger the safety of our personnel, vessels, cargo, equipment under tow and other property, as well as the environment. If any of these events were to occur, we could be held liable for resulting damages. In addition, the affected vessels could be removed from service and would not be available to generate revenue. 3 DRILLING-RELATED RISKS COULD LEAD TO THE DISRUPTION OF CHILES' DRILLING SERVICES AND TO ITS INCURRENCE OF LIABILITY. The operation of offshore jackup drilling rigs by Chiles is subject to various risks, including blowouts, craterings, fires, collisions, groundings of drilling equipment and adverse weather and sea conditions. These hazards could damage the environment, cause personal injury or loss of life and damage or destroy the property and equipment involved. In addition, the rigs face many of the marine-related risks associated with our offshore support vessels. If any of these events were to occur, Chiles could incur substantial liability for oil spills, reservoir damage and other accidents. In addition, the affected rigs could be removed from service and would not be available to generate revenue. INSURANCE COVERAGE MAY NOT PROTECT US FROM ALL OF THE LIABILITIES THAT COULD ARISE FROM THE RISKS INHERENT IN OUR BUSINESSES. We maintain insurance coverage against the risks related to our offshore marine and environmental response services. There can be no assurance, however, that our existing insurance coverage can be renewed at commercially reasonable rates or that available coverage will be adequate to cover future claims. If a loss occurs that is partially or completely uninsured, we could be exposed to substantial liability. OUR SIGNIFICANT INTERNATIONAL OPERATIONS ARE SUBJECT TO CURRENCY EXCHANGE RISKS. To minimize the financial impact of currency fluctuations and risks arising from fluctuations in currency exchange rates, we attempt to contract the majority of our services in U.S. dollars. However, in some of our foreign businesses, we collect revenues and pay expenses in local currency. Because we conduct substantially all of our operations in U.S. dollars, if the value of local currencies decline against the U.S. dollar, our operating revenues in these foreign countries would effectively be reduced. We engage in certain currency hedging arrangements designed to minimize the effect of fluctuation in pounds sterling, the currency in the United Kingdom, where most of our currency exchange risk arises. There can be no assurance, however, that we will not incur losses in the future as a result of currency exchange rate fluctuations. MUCH OF OUR OFFSHORE MARINE OPERATIONS ARE CONDUCTED IN FOREIGN COUNTRIES. UNSTABLE POLITICAL, MILITARY AND ECONOMIC CONDITIONS IN THOSE COUNTRIES COULD ADVERSELY AFFECT OUR BUSINESS AND OPERATING RESULTS. During 1999, approximately 39% of our offshore marine revenues were derived from foreign operations. These operations are subject to risks, among other things, of political instability, potential vessel seizure, nationalization of assets, currency restrictions, import-export quotas and other forms of public and governmental regulation, all of which are beyond our control. Economic sanctions or an oil embargo in Nigeria, for example, could have a significant negative impact on activity in the oil and gas industry in offshore West Africa, a region in which we operate vessels. In addition, our offshore support vessel operations in Mexico are significantly affected by Mexican government policy. We cannot predict whether any such conditions or events might develop in the future. 4 AS OUR VESSELS BECOME OLDER, WE MAY NOT BE ABLE TO MAINTAIN OR REPLACE OUR VESSELS. As of September 30, 2000, the average age of vessels we owned, excluding our standby safety vessels, was approximately 14.0 years. We believe that after an offshore supply vessel has been in service for approximately 25 years, the expense (which typically increases with age) necessary to satisfy required marine certification standards may not be economically justifiable. There can be no assurance that we can maintain our fleet by extending the economic life of existing vessels, or that our financial resources will be sufficient to enable us to make expenditures necessary for these purposes or to acquire or build replacement vessels. SPILL RESPONSE REVENUE IS DEPENDENT UPON THE MAGNITUDE AND NUMBER OF SPILL RESPONSES. National Response's spill response revenue can vary greatly between comparable fiscal periods based on the number and magnitude of spill responses in any given period. As a result, our revenue and profitability attributable to this business may vary greatly from period to period. A RELAXATION OF OIL SPILL REGULATION OR ENFORCEMENT COULD REDUCE DEMAND FOR OUR SERVICES. Our environmental response business is dependent upon the enforcement of regulations promulgated under the federal Oil Pollution Act of 1990 and, to a lesser extent, upon state regulations. Less stringent oil spill regulations or less aggressive enforcement of these regulations would decrease demand for National Response's services. We cannot assure you that oil spill regulation will not be relaxed or enforcement of existing or future regulation will not become less stringent. If this happens, the demand for our oil spill response services could be reduced, which could have a negative impact on our profitability. NATIONAL RESPONSE RELIES ON BEING CLASSIFIED AS AN "OIL SPILL REMOVAL ORGANIZATION." A CHANGE IN, OR REVOCATION OF, THIS CLASSIFICATION WOULD RESULT IN A LOSS OF BUSINESS. National Response is a classified Oil Spill Removal Organization, or an "OSRO." OSRO classification is a voluntary process conducted by the United States Coast Guard. The Coast Guard classifies OSROs based on their overall ability to respond to various types and sizes of oil spills in different operating environments, such as rivers/canals, inland waters and oceans. Coast Guard classified OSROs have a competitive advantage over non-classified service providers. Customers of a classified OSRO are exempt from regulations that would otherwise require them to list their oil spill response resources in filings with the Coast Guard. A loss of National Response's classification or changes in the requirements could eliminate or diminish National Response's ability to provide customers with this exemption. If this happens, we could lose customers, in which case our revenues and profitability could be reduced. NATIONAL RESPONSE MAY INCUR LIABILITY IN CONNECTION WITH PROVIDING SPILL RESPONSE SERVICES. Although National Response is generally exempt from liability under the federal Clean Water Act for its own actions and omissions in providing spill response services, this exemption would not apply if National Response is found to have been grossly negligent or to have engaged in willful misconduct, or if National Response fails to provide these services consistent with applicable regulations and directives under the Clean Water Act. In addition, the exemption under the federal Clean Water Act would not protect National Response against liability for personal injury or wrongful death, or against 5 prosecution under other federal or state laws. While most of the U.S. states in which National Response provides service have adopted similar exemptions, several states have not. If a court or other applicable authority determines that National Response does not benefit from federal or state exemptions from liability in providing spill response services, we could be liable together with the local contractor and the responsible party for any resulting damages, including damages caused by others. IF WE DO NOT RESTRICT THE AMOUNT OF FOREIGN OWNERSHIP OF OUR COMMON STOCK, WE COULD BE PROHIBITED FROM OPERATING OUR VESSELS IN PARTS OF THE U.S., WHICH WOULD ADVERSELY AFFECT OUR BUSINESS AND OPERATING RESULTS. We are subject to the Shipping Act, 1916 and the Merchant Marine Act of 1920. These Acts govern, among other things, the ownership and operation of vessels used to carry cargo between U.S. ports. The Acts require that vessels engaged in the "U.S. coastwise trade" be owned by U.S. citizens and built in the United States. For a corporation engaged in the U.S. coastwise trade to be deemed a citizen of the U.S.: o the corporation must be organized under the laws of the U.S. or of a state, territory or possession thereof, o each of the chief executive officer and the chairman of the board of directors must be a U.S. citizen (and no officer who is not a U.S. citizen may act in such person's absence), o no more than a minority of the number of directors of such corporation necessary to constitute a quorum for the transaction of business can be non-U.S. citizens and o at least 75% of the interest in such corporation must be owned by U.S. "citizens" (as defined in the Acts). We would be prohibited from operating our vessels in the U.S. coastwise trade during any period in which we did not comply with these regulations. To facilitate compliance, our certificate of incorporation: o limits ownership by foreigners of any class of our capital stock (including our common stock) to 22.5%, so that foreign ownership will not exceed the 25.0% permitted. Under certain circumstances our board of directors may increase this percentage to 24.0%, o requires a stock certification system with two types of certificates to aid tracking of ownership, and o permits our board of directors to make such determinations to ascertain ownership and implement such limitations as reasonably may be necessary. 6 ABOUT SEACOR SMIT INC. We are a major provider of offshore marine services to the oil and gas exploration and production industry. We are also one of the leading providers of oil spill response services to owners of tank vessels and oil storage, processing, and handling facilities, and own a substantial minority equity interest in a company that owns and operates mobile offshore jackup drilling rigs. Additional information regarding SEACOR, including our audited financial statements and descriptions of our business, is contained in the documents incorporated by reference in this prospectus. See "Where You Can Find More Information" below and "Incorporation of Documents by Reference," below. Our executive offices are located at 11200 Richmond Ave, Suite 400, Houston, Texas 77082 and our telephone number is (713) 782-5990. WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and special reports, proxy statements and other information with the SEC. Copies of these reports, proxy statements and other information may be read and copied at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. You may request copies of these documents by writing to the SEC and paying a fee for the copying costs. You may also call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room. Our SEC filings are also available to the public from the SEC's Internet site at http://www.sec.gov. Our common stock is traded on the New York Stock Exchange and you may inspect the reports, proxy statements and other information we file with the New York Stock Exchange at its offices located at 20 Broad Street, New York, New York 10005. INCORPORATION OF DOCUMENTS BY REFERENCE The SEC allows us to "incorporate by reference" certain of our publicly filed documents into this prospectus, which means that we may disclose material information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus and any later information that we file with the SEC will automatically update and supercede this information. We incorporate by reference the documents listed below and any additional documents we file with the SEC under Sections 13(a) or 14 of the Securities Exchange Act of 1934 until the offering of the common stock is terminated. This prospectus is part of a registration statement on Form S-3 that we filed with the SEC and does not contain all of the information set forth in the registration statement. The following documents that we previously filed with the SEC are incorporated by reference: (1) our Annual Report on Form 10-K for the fiscal year ended December 31, 1999 (as amended on Form 10-K/A filed on April 6, 2000); 7 (2) our Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2000, June 30, 2000 and September 30, 2000, filed on May 15, 2000, August 14, 2000 and November 14, 2000, respectively; (3) our Current Reports on Form 8-K filed on June 16, 2000, January 18, 2001, March 5, 2001 and March 8, 2001; and (4) the description of our common stock contained in our registration statements on Form 8-A filed on November 30, 1992 and October 9, 1996, including any amendment or report filed for the purposes of updating such description. We will provide any person to whom a copy of this prospectus is delivered, on written or oral request, a copy of any or all of the documents incorporated by reference, other than exhibits to those documents unless specifically incorporated by reference. You should direct any requests for documents to SEACOR SMIT Inc., 1370 Avenue of the Americas, 25th Floor, New York, New York 10019, Attention: Corporate Secretary. FORWARD-LOOKING STATEMENTS Certain statements contained or incorporated by reference in this prospectus, including without limitation, statements containing the words "believes," "anticipates," "hopes," "intends," "expects," "will," "plans," and other similar words may constitute "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause our actual results to differ materially from expectations, including those in the section entitled "Risk Factors." Given these uncertainties, prospective investors are cautioned not to place undue reliance on those forward-looking statements. We disclaim any obligation to update any of those statements or to publicly announce any updates or revisions to any of the forward-looking statements contained in this prospectus to reflect any change in our expectations with regard thereto or any change in events, conditions, circumstances or assumptions underlying the statements. USE OF PROCEEDS The shares of common stock are being offered solely for the accounts of the selling stockholders. We will not receive any proceeds from the sale of the shares. 8 SELLING STOCKHOLDERS The following table sets forth the name and the number of shares of common stock owned by each selling stockholder. We issued the shares of common stock to the selling stockholders in private transactions on December 20, 2000 and January 9, 2001 in connection with our acquisitions of SCF Corporation and Plaisance Marine, Inc. Because the selling stockholders may sell all, a portion or none of their shares, no estimate can be made of the aggregate number of shares that each selling stockholder may actually sell or that each selling stockholder will own upon completion of this offering. The amounts identified as "Total Shares to be Sold" assume the selling stockholders dispose of all shares of common stock issued to them in connection with our acquisitions of SCF Corporation and Plaisance Incorporated. Officers and directors of SEACOR have advised us that they have no present intent to sell any of the securities registered pursuant to the registration statement of which this prospectus forms a part. Mr. Charles Fabrikant, a selling stockholder, has been Chairman of the Board and Chief Executive Officer of SEACOR since December 1989 and has served as a director of several SEACOR subsidiaries since December 1989. Mr. Fabrikant has also been President of SEACOR since October 1992. Mr. Randall Blank, a selling stockholder, has been Executive Vice President, Chief Financial Officer and Secretary of SEACOR since December 1989 and is an officer of various subsidiaries of SEACOR. Messrs. Granville Conway and Andrew Morse, selling stockholders, are Directors of SEACOR and each has served in that capacity since December 1989. Mr. Michael Gellert, a Director of SEACOR, is a general partner of Windcrest Partners, L.P., a selling stockholder and was a director of SCF Corporation. Mr. Fred Farkouh and Mrs. Martha M. Farkouh, both selling stockholders are married. The spouse of each of Mrs. Mary A. Faccio and Mrs. Charlene Furman, each selling stockholders, is a partner of Mr. Farkouh in the firm of Farkouh, Furman and Faccio, which has been retained by the Company since 1989 to provide tax, financial advisory, consulting and accounting services. Ms. Judy C. Plaisance and Mr. Phillip Plaisance, each selling stockholders, were President and Secretary, respectively, of Plaisance Marine, Inc. Five barges formerly operated by SCF Corporation are approximately 20% owned by Mr. Fred Farkouh, approximately 10% owned by the husband of Ms. Mary Faccio, approximately 20% owned by the husband of Ms. Charlene Furman and 50% owned by Mr. Matthew Weber, each Selling Stockholders. Of the 433,629 shares of SEACOR common stock making up this Offering: o former stockholders of SCF are offering 375,445 shares of our common stock (45,053 of which are held in escrow in the event that an obligation to indemnify SEACOR arises); and o former stockholders of Plaisance are offering 58,184 shares of SEACOR common stock. The shares offered by this prospectus may be offered from time to time by the selling stockholders named below or by any of their pledgees, donees, transferees or other successors in interest. The amounts set forth below are based upon information provided by the selling stockholders and are accurate to the best of our knowledge. It is possible, however, that the selling stockholders may acquire or dispose of additional shares of common stock from time to time after the date of this prospectus. 9
COMMON STOCK COMMON STOCK PERCENTAGE OF OWNED BEFORE TOTAL SHARES TO OWNED AFTER THE CLASS AFTER THE SELLING STOCKHOLDER THE OFFERING BE SOLD OFFERING OFFERING - -------------------------------------------- ---------------- ----------------- ----------------- ----------------- Randall Blank (1) 124,643 5,407 119,236 * Julie P. Callais 14,546 14,546 0 * Kathleen Anna Clements 27,417 27,417 0 * Granville Conway (2) 138,500 27,417 111,083 * Eric Fabrikant Trust (3) 3,789 3,789 0 * Charles Fabrikant (3) 951,249 26,330 968,372 5.0% Fabrikant International Corporation (3) 372,727 51,031 321,696 1.7% Mary A. Faccio 6,095 2,741 3,354 * Fred Farkouh 926 926 0 * Martha M. Farkouh 23,600 5,483 18,117 * Thomas R. Farrell 1,827 1,827 0 * Thomas Flint 231 231 0 * Charlene Furman 9,736 5,483 4,253 * David Gavrin 682 682 0 * Aaron Gilman 59,944 13,708 46,236 * Robert Gilman 21,208 13,708 7,500 * Martin Gold 33,000 3,656 29,344 * Harlan Fabrikant Trust (3) 3,789 3,789 0 * Andrew Morse (2) 24,031 2,731 21,300 * Judy C. Plaisance 14,546 14,546 0 * Phillip Plaisance 14,546 14,546 0 * Scott M. Plaisance 14,546 14,546 0 * Carl Vowell 231 231 0 * VSS Holding Corporation (3) 103,236 103,236 0 * Matthew Weber 23,520 8,029 15,491 * Windcrest Partners, L.P. (2) (4) 380,262 67,593 312,669 1.6%
- ------------------------- (1) Shares reported as "Owned Before the Offering" include 92,217 options exercisable within 60 days to purchase Common Stock and 5,200 shares of restricted stock over which Mr. Blank exercises sole voting power. (2) In addition to Common Stock represented as "Owned Before the Offering", Granville E. Conway and Andrew Morse each own options exercisable after the earlier of May 23, 2001 or the date of Company's 2001 Annual Meeting of Stockholders to purchase 3,000 shares of Common Stock. These options were issued pursuant to 2000 Stock Option Plan For Non-Employee Directors. (3) Includes 503,221 shares of common stock that Mr. Fabrikant may be deemed to own through his interest in, and control of: (i) Fabrikant International Corporation, of which he is President, the record owner of 372,727 shares of common stock, (ii) Fabrikant International Profit Sharing Trust of which he is the trustee, the record owner of 19,680 shares of common stock, (iii) Eric Fabrikant Trust, of which he is Trustee, the record owner of 3,789 shares of common stock, (iv) Harlan Fabrikant Trust, of which he is Trustee, the record owner of 3,789 shares of common stock and (v) VSS Holding Corporation, of which he is President and sole stockholder, the record owner of 103,236 shares of common stock. Also includes 344,167 shares of common stock issuable upon the exercise of options exercisable within 60 days and 34,160 shares of restricted stock over which Mr. Fabrikant exercises sole voting power. 10 (4) Michael F. Gellert, a director of SEACOR, is a general partner of Windcrest Partners, L.P. and, together with all of the general partners thereof, may be deemed to share beneficial ownership of shares of common stock beneficially owned thereby. * Less than 1%. 11 PLAN OF DISTRIBUTION We are registering the shares of our common stock described in this prospectus for the selling stockholders. Subject to the limitations on the use of this prospectus described below, the "selling stockholders" also include persons who receive shares as a gift from a selling stockholder, commonly known as donees, and persons who receive shares from a selling stockholder as collateral to secure a loan, commonly known as pledgees, who are selling shares received from a named selling stockholder after the date of this prospectus. We will pay all costs, expenses and fees in connection with the registration of the shares offered by this prospectus. The selling stockholders, however, will pay for any brokerage commissions and similar selling expenses, if any, attributable to the sale of their shares. Sales of the shares may be made by selling stockholders from time to time in one or more types of transactions, which may include sales in block transactions, in the over-the-counter market, in negotiated transactions, through put or call options transactions relating to the shares, through short sales of the shares, or a combination of these methods of sale, at market prices prevailing at the time of sale or at negotiated prices. These transactions may or may not involve brokers or dealers. The selling stockholders have advised us that they have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of their securities. They also have advised us that there is no underwriter or coordinating broker acting in connection with the proposed sale of the shares by the selling stockholders. The selling stockholders may sell their shares directly to purchasers or to or through broker-dealers, which may act as agents or principals. These broker-dealers may receive compensation in the form of discounts, concessions or commissions from the selling stockholders or the purchasers of the shares for whom the broker-dealers may act as agents or to whom they sell as principal, or both. The compensation as to a particular broker-dealer might be in excess of customary commissions. The selling stockholders may enter into hedging transactions with broker-dealers and the broker-dealers may engage in short sales of the common stock in the course of hedging the positions they assume with the selling stockholder, including in connection with distributions of the common stock by the broker-dealers. The selling stockholders may enter into option or other transactions with broker-dealers that involve the delivery of their shares to the broker-dealers, who may then resell or otherwise transfer the shares. The selling stockholders may also loan or pledge their shares to a broker-dealer and the broker-dealer may sell the shares so loaned or, upon a default, may sell or otherwise transfer the pledged shares. The selling stockholders and any broker-dealers that act in connection with the sale of their shares might be deemed to be "underwriters" within the meaning of Section 2(11) of the Securities Act of 1933. In that event, any commissions received by the broker-dealers and any profit on the resale of the shares sold by them while acting as principals might be deemed to be underwriting discounts or commissions under the Securities Act. We have agreed to indemnify each of the selling stockholders for liabilities they incur for selling their shares using this prospectus, including liabilities arising under the Securities Act. The selling stockholders, however, have indemnified us for any liabilities arising out of information furnished to us on behalf of the selling stockholder for use in this prospectus. The selling stockholders may agree to indemnify any agent, dealer or broker-dealer that participates in transactions involving sales of their shares against certain liabilities, including liabilities arising under the Securities Act. 12 Because selling stockholders may be deemed to be "underwriters" within the meaning of Section 2(11) of the Securities Act, the selling stockholders will be subject to the prospectus delivery requirements of the Securities Act. We have informed the selling stockholders that the anti-manipulative rules under the Securities Exchange Act of 1934, including Regulation M, may apply to their sales in the market. Selling stockholders may also resell all or a portion of their common stock in open market transactions in reliance upon the SEC's Rule 144 without delivering this prospectus, provided they meet the criteria and conform to the requirements of that rule. If a selling stockholder notifies us that it has entered into a material arrangement with a broker-dealer for the sale of that selling stockholder's shares of common stock through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, we will, if required, file a supplement or an amendment to this prospectus. Any such supplement would disclose the name of each of those selling stockholders and of the participating broker-dealer(s), the number of shares involved, the price at which the shares were sold, the commissions paid or discounts or concessions allowed to the broker-dealer(s), where applicable, that the broker-dealer(s) did not conduct any investigation to verify the information set out in this prospectus, and the other facts material to the transaction. In addition, if a selling stockholder notifies us that a donee or pledgee intends to sell more than 500 shares, we will file a supplement to this prospectus. Sales of a substantial number of shares of the common stock in the public market by the selling stockholders or even the potential of such sales could adversely affect the market price for our common stock, which could have a direct impact on the value of the shares being offered by the selling stockholder. LEGAL MATTERS The validity of the shares of common stock has been passed upon for us by Weil, Gotshal & Manges LLP, New York, New York. EXPERTS The financial statements and schedule incorporated by reference in this prospectus from our Annual Report on Form 10-K for the fiscal year ended December 31, 1999 (as amended on Form 10-K/A filed on April 6, 2000) have been audited by Arthur Andersen LLP, independent public accountants, as stated in their reports with respect thereto, which are incorporated herein by reference, and have been so incorporated herein in reliance upon the authority of such firm as experts in accounting and auditing in giving said reports. 13 ================================================================================ We have not authorized any dealer, salesperson or other person to give any information or to make any representations other than those contained in this prospectus. You must not rely on any unauthorized information. This prospectus does not offer to sell or buy any securities in any jurisdiction where it is unlawful. The information in this prospectus is current as of March 9, 2001. [Logo] SEACOR SMIT Inc. -------------------- 433,629 Shares of Common Stock ------------------ P R O S P E C T U S ------------------ March , 2001 ================================================================================
PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS Item 14. Other Expenses of Issuance and Distribution. The following table sets forth an estimate of the various costs and expenses payable by the Registrant in connection with the sale of the shares being registered hereby: SEC registration fee........................ $ 6,000 Transfer Agent fees......................... 3,000 Legal fees and expenses...................... 20,000 Accounting fees and expenses................. 5,000 Miscellaneous................................ 2,000 ---------- Total................................... $ 36,000 Item 15. Indemnification and Limitation of Liability of Directors and Officers. As more fully described below, Section 145 of the General Corporation Law of the State of Delaware (the "DGCL") permits Delaware corporations to indemnify each of their present and former directors or officers under certain circumstances, provided that such persons acted in good faith and in a manner which they reasonably believed to be in, or not opposed to, the best interests of the corporation. Article III of our Amended and Restated By-laws provides that we shall indemnify, to the fullest extent permitted by Section 145 of the DGCL, as the same may be amended from time to time, all persons whom we may indemnify pursuant thereto and in the manner prescribed thereby. Specifically, Section 145 of the DGCL provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit, or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, or, with respect to any criminal action or proceeding, that the person had reasonable cause to believe that the person's conduct was unlawful. Section 145 of the DGCL also provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, II-1 employee, or agent of another corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon adjudication that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. Any such indemnification (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because such person has met the applicable standard of conduct set forth above. Section 145 of the DGCL permits a Delaware business corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify such person. Section 102(b) of the DGCL enables a Delaware corporation to include a provision in its certificate of incorporation limiting a director's liability to the corporation or its stockholders for monetary damages for breaches of fiduciary duty as a director. Our certificate of incorporation contains provisions that limit the personal liability of each of our directors or our stockholders for monetary damages for breach of the fiduciary duty of care as a director. These provisions eliminate personal liability to the fullest extent permitted by the DGCL. II-2 Item 16. Exhibits. Number Description ------ ----------- 2.1* Agreement and Plan of Merger, dated as of December 19, 2000, by and between SEACOR SMIT Inc. and SCF Corporation. 2.2 Share Purchase Agreement, dated as of January 9, 2001, among SEACOR SMIT Inc. and the other parties thereto. 4.1 Investment and Registration Rights Agreement, dated as of December 19, 2000, among SEACOR SMIT Inc. and the other parties thereto 4.2 Investment and Registration Rights Agreement, dated as of January 9, 2001, among SEACOR SMIT Inc. and the other parties thereto 5.1* Opinion of Weil, Gotshal & Manges LLP 23.1 Consent of Arthur Andersen LLP 23.2* Consent of Weil, Gotshal & Manges LLP (included as part of Exhibit 5.1) 24.1 Power of Attorney (included on signature page to the Registration Statement) - ----------------------
* To be filed by amendment. Item 17. Undertakings. (1) The undersigned registrant hereby undertakes: (a) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement; (iii) to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; provided, however, that the undertakings set forth in paragraphs (a)(i) and (a)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant to Section 13 or Section II-3 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement. (b) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) To remove from registration by means of a post-effective amendment any of the securities being registered hereby which remain unsold at the termination of the offering. (2) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions in Item 15 above, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director or officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of New York, State of New York, on March 9, 2001. SEACOR SMIT INC. By: /s/Randall Blank --------------------------------------------- Randall Blank Executive Vice President, Chief Financial Officer and Secretary POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Charles Fabrikant, Randall Blank and Dick Fagerstal, or any of them, his attorney-in-fact, each with the power of substitution, for him in any and all capacities, to sign any amendments (including all post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, and all post-effective amendments thereto, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signatures Title Date - ---------- ----- ---- /s/Charles Fabrikant Chairman of the Board of March 9, 2001 - ------------------------------------ Directors, President and Charles Fabrikant Chief Executive Officer (Principal Executive Officer) /s/ Randall Blank Executive Vice President, Chief March 9, 2001 - ----------------------------------- Financial Officer and Secretary Randall Blank (Principal Financial Officer ) Director - ----------------------------------- Michael E. Gellert II-5 /s/Andrew R. Morse Director March 9, 2001 - ----------------------------------- Andrew R. Morse /s/Granville E. Conway Director March 9, 2001 - ----------------------------------- Granville E. Conway /s/Stephen Stamas Director March 9, 2001 - ----------------------------------- Stephen Stamas /s/Richard M. Fairbanks III Director March 9, 2001 - ----------------------------------- Richard M. Fairbanks III Director - ----------------------------------- Pierre de Demandolx /s/Antoon Kienhuis Director March 9, 2001 - ----------------------------------- Antoon Kienhuis Director - ----------------------------------- John Hadjipateras /s/Lenny Dantin Vice President March 9, 2001 - ----------------------------------- (Principal Accounting Officer and Lenny Dantin Controller)
II-6 EXHIBIT INDEX Item 16. Exhibits. Number Description ------ ----------- 2.1* Agreement and Plan of Merger, dated as of December 19, 2000, among SEACOR SMIT Inc. and SCF Corporation. 2.2 Stock Exchange Agreement, dated as of January 9, 2001, among SEACOR SMIT Inc. and the other parties thereto. 4.1 Investment and Registration Rights Agreement, dated as of December 19, 2000, among SEACOR SMIT Inc. and the other parties thereto 4.2 Investment and Registration Rights Agreement, dated as of January 9, 2001, among SEACOR SMIT Inc. and the other parties thereto 5.1* Opinion of Weil, Gotshal & Manges LLP 23.1 Consent of Arthur Andersen LLP 23.2* Consent of Weil, Gotshal & Manges LLP (included as part of Exhibit 5.1) 24.1 Power of Attorney (included on signature page to the Registration Statement)
- ---------------------- * To be filed by amendment. II-7 EX-2 2 0002.txt EXHIBIT 2.2 Exhibit 2.2 ----------- STOCK EXCHANGE AGREEMENT THIS STOCK EXCHANGE AGREEMENT dated January 9, 2001, entered into by PHILLIP G. PLAISANCE, JUDY C. PLAISANCE, SCOTT M. PLAISANCE, AND JULIE P. CALLAIS (said individuals hereinafter collectively referred to as "Plaisance", but sometimes referred to as the "Stockholders") and SEACOR SMIT INC., a Delaware corporation or its designee or assignee (hereinafter referred to as "Seacor"). RECITALS -------- WHEREAS, Plaisance is the owner of all of the issued and outstanding capital stock of Plaisance Marine, Inc., a Louisiana corporation (the "Company"); and WHEREAS, Plaisance has agreed to exchange or cause to be exchanged to Seacor all of the issued and outstanding stock of the Company; and NOW, THEREFORE, in consideration of the premises, and the terms and conditions contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is hereby agreed by and among the parties hereto as follows: 1. DEFINITIONS: As used herein, each of the following terms shall have the meaning indicated: "Annual Financial Statement" means the financial statement of the Company as of December 31, 1999, true and correct copies of which have been furnished to . "Average Price" means $44.00 per share of Seacor Stock. For the purposes of this Agreement the price per share of Seacor Stock shall remain the Average Price regardless of the actual price at which such stock may trade from time to time. "Closing" means the closing of the exchange of the Shares provided for herein. "Closing Balance Sheet" means the balance sheet of the Company as of the Effective Time, which balance sheet shall be prepared in accordance with Section 4. "Closing Date" means the date of the Closing. "Company" shall have the meaning assigned in the recitals above. "Covered Vessels" means the two (2) 145 foot utility vessels. "Covered Waters" means the waters of the U.S. Gulf of Mexico and its adjacent states, including Texas and Louisiana, and including particularly the Louisiana Parishes of Assumption, Cameron, Iberia, Jefferson, Lafourche, Orleans, Plaquemines, St. Bernard, St. Charles, St. Martin, St. Mary, Terrebonne and Vermilion. "Current Balance Sheet" means the financial statement of the Company as of December 31, 2000, true and correct copies of which have been furnished to . "Effective Time" means 12:01 a.m., Central Standard Time, on the Closing Date. "Equipment and Spares" means any equipment and spares associated with the Vessels whether aboard or not aboard on the Closing Date including the property described in Schedule 1. "Liability" means any obligation, claim, demand, debt, or liability, including, without limitation, Payables, whether accrued, absolute, contingent or otherwise. "Lien" means any lien, mortgage, security interest, attachment, charge or other encumbrance. "Material Adverse Effect" means a material adverse effect on the Company or its business, property or prospects. "Payables" means any and all accrued and unpaid accounts payable of the Company, including, without limitation, trade debt, wages, benefits, Taxes, rents, notes, insurance deductibles or premiums, or other sums. "Property" means the Vessels and other property of the Company described in the Current Balance Sheet. "Registration Rights Agreement"shall mean that certain Registration Rights Agreement between Seacor and Sellers referred to in Section 7(f). "Reserve Shares" means 9,998 shares of Seacor Stock held in reserve pursuant to Section 4. "Seacor" means SEACOR SMIT Inc., a Delaware corporation. "Seacor Stock" means common stock, par value $.01 per share, of Seacor. Seacor Stock shall be the "Registrable Securities" as defined in the Registration Rights Agreement. "Shares" means all of the issued and outstanding shares of capital stock of the Company. "Taxes" means any and all ad valorem, property, income, occupational license, employment or other taxes, whether federal, state or local, payable by Company as taxpayer, together with all withholding, employment, social security, sales, use and other taxes or funds collected or held in trust by Company, whether as employer or otherwise, for remittance to the applicable taxing authority. "Vessels" means the following Vessels: 1. Sea Horse I, Official No. 1052663 2. Sea Horse II, Official No. 1059403 2 2. EXCHANGE OF SHARES: On the terms and conditions set forth herein, Plaisance shall deliver all of the Shares of stock of the Company in exchange for the total number of shares of Seacor Stock as determined and set forth in Section 4 below. Such exchange shall be accomplished by the delivery to each of the Stockholders in exchange for each of the Shares owned by such Stockholder, as set forth in Schedule 6(i) hereto, such number of fully paid and nonassessable shares of Seacor Stock as is equal to the ratio of the total number of shares of Seacor Stock to be delivered pursuant hereto divided by 100, which is represented to be the number of shares owned by the Stockholders on the date hereof. In the event that fractional shares of Seacor Stock would be required to be issued pursuant hereto, in lieu of such fractional shares, each of the Stockholders shall be entitled to receive a cash payment (without interest) ("Fractional Payment") equal to the fraction of share multiplied by the Average Price. The exchange of the Shares for the total number of shares of Seacor Stock is intended to be an exchange pursuant to Section 368(a)(1)(B) of the Internal Revenue Code. 3. CLOSING; TERMINATION: (a) The closing of the exchange of the Shares (the "Closing") shall occur on or prior to January 16, 2001 ("Closing Date"), or at a later date mutually agreed by the parties. The Closing Date shall automatically be extended until such time as the HSR Approval is obtained but no later than January 31, 2001 (b) This Agreement may be terminated by a party upon written notice to the other under the following circumstances: (i) The Closing has not occurred by January 31, 2001, or as of a later date as extended by paragraph 3(a) above, and the party giving the notice is not in default hereunder; or (ii) The party giving the notice is not in default hereunder, and the party to whom the notice is given has defaulted in its obligations hereunder and has failed to cure such default within five (5) days after it received written notice of such default from the other party. 4. TOTAL SEACOR SHARES TO BE DELIVERED; DELIVERY OF COMPANY SHARES; TRANSFER OF THE EXCHANGED SHARES: (a) The total number of shares of Seacor Stock to be delivered in exchange for all of the Shares of the Company shall be Sixty-Eight Thousand One Hundred Eighty-Two (68,182) shares (the "Base Shares") of Seacor Stock as adjusted in accordance with subparagraph (c) of this Section 4. (b) On the Closing Date, Plaisance shall deliver to Seacor all of the Shares and Seacor shall instruct its transfer agent to issue and deliver Fifty-Eight Thousand One Hundred Eighty-Four (58,184) shares of Seacor Stock, representing the aforesaid number of shares of Seacor Stock less the Reserve Shares to Plaisance within ten (10) days of Closing and as soon as practicable after the final determination provided for in subparagraph (c) below but in any event no later than ten (10) days following such final determination, Seacor shall deliver the balance, if any, of the total number of shares of Seacor Stock and any Fractional Payments required herein to the Stockholders. 3 (c) Within sixty (60) days after the Closing Date, Seacor and Plaisance shall cause their accountants to prepare the Closing Balance Sheet. The Closing Balance Sheet shall be prepared on an accrual basis in accordance with generally accepted accounting principles. Plaisance and their accountants shall have access to the books and records of the Company for the purpose of participating in the preparation of the Closing Balance Sheet. If Plaisance and Seacor are unable to agree upon the items on the Closing Balance Sheet that affect the Purchase Price, the parties shall retain a "Big Five" accounting firm to prepare the Closing Balance Sheet, which shall be final and binding on the parties. Such accounting firm shall be designated by and approved by , such approval not to be unreasonably withheld. The fees of the accounting firm shall be borne equally by the parties. The total number of shares of Seacor Stock to be delivered shall be determined by adding or subtracting, as the case may be, a number of shares to or from the Base Shares as follows: a. in the event that the total of the Liabilities, including Payables, reflected on the Closing Balance Sheet, exceeds Eight Hundred Thousand Dollars ($800,000.00) (the "Maximum Liability Amount"), then there shall be subtracted a number of shares of Seacor Stock determined by dividing the amount by which such Liabilities exceeds the Maximum Liability Amount by the Average Price; b. in the event that the total of the Liabilities, including Payables, reflected on the Closing Balance Sheet, is less than the Maximum Liability Amount, then there shall be added a number of shares of Seacor Stock determined by dividing the amount by which the Maximum Liability Amount exceeds such Liabilities by the Average Price; and c. there shall be added a number of shares of Seacor Stock determined by dividing the amount of any franchise tax credit issued to the Company by the State of Louisiana for property taxes paid by the Company for the year 2000, by the Average Price. 5. CERTAIN TRANSACTIONS. (a) Prior to Closing the Company may distribute to Plaisance, or its designees, free and clear of all Liens (other than Liens personally assumed by Plaisance and for which the Company and its Property is fully discharged and released): (i) cash; (ii) accounts receivable generated prior to the Closing Date; (iii) deposits; and (iv) furniture and fixtures. (b) Schedule 5(b) sets forth all Payables and other Liabilities of the Company reflected on the Current Balance Sheet supplemented through the date of this Agreement. Prior to Closing, Plaisance shall cause the Company to accelerate, pay or otherwise discharge all such Liabilities (with the exception of such portion thereof as is covered by insurance) exceeding Eight Hundred Thousand Dollars ($800,000.00). After the payment of all Payables and other Liabilities, or fully funding a reserve therefore, Company may distribute cash on hand to Plaisance. 4 6. REPRESENTATIONS AND WARRANTIES OF PLAISANCE: Plaisance represents and warrants as follows, which representations and warranties shall be deemed to be made again at Closing and shall survive the Closing: (a) Company is a citizen of the United States within the meaning of Section 2 of the Shipping Act of 1916, as amended (46 U.S.C.ss.802). (b) The Annual Financial Statement and Current Balance Sheet accurately and completely reflect the financial condition of the Company as of the dates thereof. At the time of Closing, the Company will have good and marketable title to the Property (other than Excluded Items distributed to Plaisance pursuant to Section 5), free and clear of any Liens. Any Liens to which the Property is currently subject are described on Schedule 6(b), and shall be discharged at or prior to the Closing. (c) Except as described in Schedule 6(c), there are no investigations, actions, suits, charges, complaints, or other proceedings of any character pending or threatened against or involving the Company or its Property, and no circumstances are known to exist by Plaisance which would give rise to any action, suit or proceeding against the Company or the Property. Neither the Company nor the Property is a party to or is subject to any seizure, attachment, judgment, order, or decree. (d) Schedule 6(d) sets forth the names of all officers, directors, employees and agents of the Company other than Plaisance, and the remuneration and compensation being paid thereto. Schedule 6(d) also contains the names, addresses, and telephone numbers of all banks or other financial institutions in which the Company has an account, deposit, or safe-deposit box (collectively, "Accounts"), with the account description and number and the names of all persons authorized to draw on these accounts or to grant access to these boxes. All such Accounts shall be closed on or prior to the Closing Date. (e) The Vessels are duly documented vessels of the United States, eligible to engage in the coastwise trade within the meaning of Chapter 121 of Title 46, United States Code (46 U.S.C. ss.ss.12101, et. seq.) and Subchapter G, Part 67 of Title 46, Code of Federal Regulations (46 C.F.R. ss.ss.67.1, et. seq.). As of the Closing Date, any and all loadline certificates, class certificates, or certificates of inspection issued by the American Bureau of Shipping ("ABS"), the United States Coast Guard, or other agency to which the Vessels are currently subject (the "Certificates") shall be in full force and effect, without recommendation. As of the Closing Date, the propulsion, navigation, pumping and electrical systems of the Vessel shall be operable. (f) Except as reflected on the Current Balance Sheet, the Company has no Liabilities other than (i) claims fully covered by insurance; (ii) trade payables (including employee's wages) incurred in the normal course of business of the Company since the date of the Current Balance Sheet, and (iii) Taxes accrued since the date of the Current Balance Sheet but not yet due, all of which (if not paid, satisfied or discharged prior to the Closing Date) will be reflected in the Closing Balance Sheet and are not material in the aggregate. Except as disclosed in Schedule 6(f), since the date of the Current Balance Sheet: 5 (i) there has been no material change in the financial condition, operations, properties, business or prospects of the Company; (ii) the Company has not entered into any material agreement or issued any capital stock; (iii) except as described in Schedule 6(f), Company has entered into no employment contracts and there has been no increase in the compensation paid or payable to any officer, director, employee or agent of the Company; and (iv) there have been no dividends paid or distributions made by the Company except as provided in Section 5. (g) The business of the Company has been and is being conducted in all material respects in accordance with all applicable laws, rules, and regulations of all authorities. (h) All federal and state tax returns of the Company have been timely filed and all Taxes required to be shown thereon (and any penalties and interest) have been paid in full. (i) The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Louisiana. The Company is duly authorized and qualified to own its properties and conduct its business in all jurisdictions where such property is located and such business is conducted. Company has no subsidiaries. The entire authorized capital stock of the Company consists of 100 shares of no par value common stock, of which 100 shares are outstanding. All such outstanding shares have been issued validly and are fully paid and non-assessable. All outstanding shares are owned by Plaisance, as provided on Schedule 6(i), free of any liens, claims and encumbrances, and, at Closing, Seacor will become the owner of the Shares free of any liens, claims or encumbrances. There are no stock options, stock purchase agreements, pre-emptive rights or other rights to acquire shares of capital stock of the Company. Plaisance has furnished to Seacor for its examination the complete originals of (i) the articles of incorporation and bylaws of the Company, (ii) the minute books of the Company containing all records required to be set forth of all proceedings, consents, actions and meetings of the shareholders and board of directors of the Company, and (iii) the stock transfer books of the Company setting forth all transfers of any capital stock. (j) Except as described in Schedule 6(j), the Company is not a party to any written or oral collective bargaining agreement or other contract with any labor union, and Company has no employment contracts, pension, ERISA, or profit sharing or bonus plans for employees which cannot be terminated by the Company without financial obligation upon notice. (k) Company is not in default under any agreement or other document to which it is a party or to which its Property is subject. (l) The execution, delivery, and performance of this Agreement by Plaisance does not and will not violate, conflict with, or constitute a breach of (i) the Articles of Incorporation or By-Laws of the Company, or (ii) any agreement, order, judgment, or decree to which the Company or any member of Plaisance is a party or to which any Plaisance member, the Company or the Property is subject. 6 (m) Company has no leases, contracts, agreements, or commitments which cannot be immediately canceled by the Company without financial obligation. All leases, contracts, agreements or commitments to which the Company is bound are listed on Schedule 6(m), and true and complete copies of such contracts have been furnished Seacor. All parties with whom the Company has contractual arrangements are in compliance therewith in all material respects and are not in default thereunder. (n) Except for the government approval under the HSR Act no registration with, or approval of, any governmental agency or commission is necessary on the part of Plaisance or the Company for the execution, delivery or performance of the terms of this Agreement. (o) The Company has furnished to Seacor complete and correct descriptions of its insurance coverages, or, in lieu thereof, true, correct and complete copies of its current insurance policies which are in full force and effect. There are currently no denials of coverage or reservations of rights by such insurers for any claims now pending under such policies. The consummation of the transaction contemplated by this Agreement will not impair any of the coverages afforded the Company by such policies for pending claims or claims which accrued (but have not been asserted) prior to the Closing Date. (p) The shares of Seacor Stock acquired by Plaisance pursuant hereto are being obtained for Plaisance's own account for investment, with no view to the public distribution or resale thereof. Plaisance will not offer or sell any such securities in violation of the provisions of the Securities Act of 1933, or the Louisiana Blue Sky Law (Louisiana R.S. 51:701, et seq.) as now in effect or any legislation substituted therefor, and the rules and regulations thereunder. Plaisance represents that they are "accredited investors" as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, has such knowledge and experience in financial and business matters as to be able to evaluate the merits and risks of the acquisition of shares of Seacor. Plaisance understands that Seacor is relying on such representations, warranties, and agreements to exempt from registration the issuance of the shares of Seacor Stock to Plaisance. Plaisance acknowledges being advised that the shares of Seacor Stock will be unregistered and must be held indefinitely unless they are subsequently registered under the Securities Act of 1933 and applicable state securities laws, including, without limitation, as provided in the Registration Rights Agreement, or an exemption from such registration is available, and that if such an exemption is relied on, Plaisance may be required to furnish an opinion of counsel regarding such exemption. Plaisance acknowledges that the certificates evidencing the shares of Seacor Stock issued to Plaisance hereunder will have a legend thereon restricting transfer of the shares except in compliance with the foregoing, all as provided in the Registration Rights Agreement. (q) At Closing, the Vessels shall be in at least as good a condition as they were when inspected by Seacor, subject only to ordinary wear and tear since that date. 7. WARRANTIES OF SEACOR: Seacor represents and warrants to Plaisance as follows, which representations and warranties shall be deemed to be made again at Closing and shall survive the Closing: 7 (a) Seacor is a citizen of the United States within the meaning of Section 2 of the Shipping Act of 1916, as amended (46 U.S.C.ss.802). (b) Seacor is a corporation duly organized, existing and in good standing under the laws of the State of Delaware and has corporate power to own and operate its properties and to carry on its business. (c) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby do not and will not conflict with or constitute a breach of (i) any provisions of the Certificate of Incorporation or By-Laws of Seacor, (ii) any agreement to which Seacor is a party, or (iii) any order, judgment, or decree to which Seacor is a party. Seacor has, or will have as of the Closing Date, all corporate power and authority necessary to exchange the total number of shares of Seacor Stock for the Shares to be transferred pursuant to this Agreement. The officer executing this Agreement on behalf of Seacor has been duly authorized by Seacor's Board of Directors to execute this Agreement. Seacor has taken all corporate action necessary for this Agreement to constitute the valid and binding obligation of Seacor, enforceable in accordance with its terms. (d) The Shares are being acquired for Seacor's own account for investment, with no view to the public distribution or resale thereof. Seacor will not offer or sell any such securities in violation of the provisions of the Securities Act of 1933, the Louisiana Blue Sky Law (Louisiana R.S. 51:701 et seq.) as now in effect or any legislation substituted therefor, and the rules and regulations thereunder. Seacor understands that the Company and Plaisance are relying on such representations, warranties, and agreements to exempt from registration the transfer of the Shares to Seacor. Seacor acknowledges being advised that the Shares will be unregistered and must be held indefinitely unless the shares are subsequently registered under the Securities Act of 1933 or an exemption from such registration is available. (e) Except for the governmental approvals under the Hart-Scott-Rodino Act (the "HSR Act") no registration with, or approval of, any governmental agency or commission is necessary on the part of Seacor for the execution, delivery or performance of the terms of this Agreement. (f) The shares of Seacor Stock issued to Plaisance pursuant hereto will be duly authorized, validly issued, fully paid and non-assessable. The shares of Seacor Stock issued to Plaisance may be registered and sold by Plaisance as provided in the Registration Rights Agreement between Seacor and Plaisance. 8. COVENANTS OF PLAISANCE: Plaisance covenants that, between the date hereof and the closing, as follows: (a) Access and Information. Plaisance will cause the Company to afford Seacor and its representatives at its sole expense, risk and cost reasonable access during normal business hours to the properties, books and records of the Company, and shall cause to be furnished to Seacor and its representatives all information concerning the Company which may reasonably be requested by Seacor. Seacor shall maintain the information so furnished in confidence. 8 (b) Business. Plaisance shall cause the Company to use all reasonable efforts to preserve intact its present business organization, keep available the services of its present officers and employees, and preserve its relationships with suppliers, customers and others having business dealings with it. (c) Properties. Plaisance shall cause the Company at its own expense to maintain all Property in good repair, order and condition, except for reasonable wear and tear. (d) Insurance. Plaisance shall cause the Company to maintain insurance upon its Property and with respect to Liabilities arising out of the conduct of its business in such amounts and of such kinds as are currently maintained. (e) Dispositions. Plaisance shall cause the Company not to sell, lease or dispose of any Property (except as permitted in Section 5), encumber any Property or cause or permit any Lien to be filed against any Property. Plaisance shall cause the Company and its Property to be fully released and discharged from any Lien, including any Lien disclosed on Schedule 6(b). Plaisance shall further cause the Company to pay and discharge all Payables and Liabilities as provided in Section 5. (f) Articles/By-Laws. Plaisance shall cause the Company not to amend its Articles of Incorporation or By-Laws or merge or consolidate with or into any other corporation or change in any manner the rights of each of the capital stock or other securities or the character of its business. (g) Stock. Plaisance shall cause the Company not to issue, sell, or redeem, or enter into any contract or commitment to issue, sell, or redeem any shares of its capital stock or reclassify any Shares of its capital stock. (h) Representations. Plaisance shall not, and shall cause the Company not to, take any action that would result in the representations and warranties of Plaisance being untrue at the Closing Date. (i) Notices. Plaisance shall advise Seacor in writing of any (i) event, occurrence, development or state of circumstances which, individually or in the aggregate, might reasonably be expected to have a Material Adverse Effect, (ii) notice or other communication from any person or entity alleging that the consent of such person or entity is or may be required in connection with the transactions contemplated by this Agreement, or (iii) notice or other communication from any government body, authority, agency or official in connection with the transaction contemplated by this Agreement. (j) Operations. Plaisance shall cause the Company to operate its business only in the ordinary course. (k) Funded Debt. Plaisance shall cause the Company not to incur any obligation or liability for borrowed money other than in the ordinary course of business. 9 (l) Contracts. Plaisance shall cause the Company not to enter into any contract, commitment or agreement which would be required to be disclosed on Schedule 6(m) if such contract, commitment or agreement were in effect on the date of this Agreement. (m) Compliance. Plaisance shall cause the Company not to agree or commit to do anything inconsistent with any of the foregoing. (n) Resignations. Plaisance will deliver to Seacor at the Closing the resignations of all officers and directors of the Company. 9. MUTUAL INDEMNIFICATION: (a) Plaisance agrees to indemnify and hold and save Seacor and Company harmless from any and all liabilities, claims, demands, losses, damages, diminution in value, deficiency or costs of any kind or description (including reasonable attorneys' fees), for or in connection with, resulting from or on account of: (i) Any Lien, except for the SAFECO loan, which will remain a liability of the Company, or Liability of the Company of any nature whatsoever, whether accrued, absolute, contingent, or otherwise, existing at the Effective Time, including without limitation any tax liabilities accrued and payable in respect of or measured by the income (on an accrual basis) of the Company for any period prior to the Effective Time, but specifically excluding Liabilities incurred in the ordinary course of business which are recorded on the Closing Balance Sheet and are taken into account in adjusting the total number of shares of Seacor Stock delivered pursuant hereto. (ii) Any misrepresentation, breach of warranty or nonfulfillment of any obligation on the part of Plaisance under this Agreement. (b) If any third person, including, without limitation, any governmental taxing authority, shall assert any claim against Seacor or the Company which, if successful, might result in a claim for indemnity hereunder, Seacor shall notify Plaisance in writing of the nature of such claim (such writing to be within a reasonable time and before any action is taken which would hinder or otherwise detrimentally affect Plaisance's ability to defend the claim), and at Plaisance's option, Plaisance may, at his sole expense, assume and control the defense of such claim. Should Seacor determine with respect to any claim by a third person (which may result in indemnification by Plaisance), that it is in Seacor's best interest to forego a valid defense of such claim (such reasons to include, without limitation, business relations, business reputation, etc.), then Plaisance shall not be responsible for indemnification of such claim. The cost of defense in any claim by a third party which may result in indemnification hereunder shall be borne by Plaisance. (c) Seacor agrees to indemnify and hold and save Plaisance harmless from any and all liabilities, claims, demands, losses, damages, diminution in value, deficiency or costs of any kind or description (including reasonable attorneys' fees), for or in connection with, resulting from, or on account of any misrepresentation, breach of warranty or nonfulfillment of any obligation on the part of Seacor under this Agreement. 10 (d) No party shall have the right to recover incidental or consequential damages, including lost profits. 10. CONDITIONS PRECEDENT TO SEACOR'S EXCHANGE: Seacor's obligation to exchange the Shares of Seacor Stock is expressly conditioned upon satisfaction of the following conditions precedent: (a) Any applicable Certificates, as defined in Section 6(e), shall be in full force and effect on the Closing Date; (b) As of the Closing Date, there shall have been no material adverse change in the financial condition, results of operations, properties, business or business prospects of the Company; (c) Plaisance's representations and warranties shall be true and correct as of the Closing Date; (d) Delivery by Plaisance at Closing of those documents particularly described in Section 12 of this Agreement; (e) Plaisance shall have complied in all material respects with his covenants and agreements hereunder; (f) The parties shall have received all necessary governmental approvals, including all approvals required under the HSR Act; (g) Seacor and Plaisance shall have entered into the Registration Rights Agreement; and (h) The SEACOR Deepwater 1, Inc., Sea Horse Marine, Inc., and La Salle Offshore, Inc. Asset Purchase Agreement ("Sea Horse Agreement") and the Vessel Purchase Agreement between Sea Horse Marine, Inc. and SEACOR Deepwater 1, Inc. shall have been executed and delivered contemporaneously with the closing of the transaction contemplated by this Agreement. 11. CONDITIONS PRECEDENT TO PLAISANCE'S EXCHANGE: Plaisance's obligation to exchange the Shares is expressly conditioned upon the following conditions precedent: (a) Seacor's representations and warranties being true and correct as of the Closing Date: (b) Delivery by Seacor at Closing of those documents described in Section 12(b) of this Agreement; (c) Seacor shall have complied in all material respects with its covenants and agreements hereunder; 11 (d) The parties shall have received all necessary governmental approvals, including all approvals required under the Hart-Scott-Rodino Act; (e) Seacor and Plaisance shall have entered into the Registration Rights Agreement; and (f) The closing, execution and delivery of the Sea Horse Agreement contemporaneously with the closing of the transaction contemplated herein. 12. EXECUTION AND DELIVERY OF INSTRUMENTS: At the Closing, the parties shall execute and/or deliver, or cause the execution and/or delivery of, any and all documents reasonably required in order to consummate the transactions described herein, including, without limitation, the following: (a) Plaisance shall deliver to Seacor at the Closing: (i) Certificates representing the Shares properly endorsed or accompanied by blank stock powers pertaining thereto (with the endorsements or signatures guaranteed by a bank or stockbroker, or notarized, if applicable); (ii) A favorable opinion of Watkins, Walker & Eroche, reasonably acceptable to Seacor and its counsel; (iii) A certificate of good standing of the Company from the Secretary of State of Louisiana; (iv) Written resignations of Company's officers and directors effective as of Closing; and (v) Certificates of Ownership (CG-1330 or Vessel Abstracts) issued by the Coast Guard within fifteen (15) days prior to Closing, showing the Company to be the owner of the Vessels free and clear of all Liens. (b) Seacor shall deliver to Plaisance at the Closing: (i) Certified corporate resolutions of Seacor authorizing the transactions described in this Agreement; and (ii) The Registration Rights Agreement executed by Seacor. (c) Seacor shall cause its transfer agent to deliver to Plaisance within ten (10) days after Closing, certificates representing the shares of Seacor Stock that are issuable to Plaisance pursuant to Section 3(b). 13. NON-COMPETITION; NON-DISCLOSURE: Plaisance acknowledges that a material consideration and inducement for Seacor to enter into this Agreement, is the Agreement of Plaisance and any other corporation or entity in which they own an interest (excluding any publically traded companies), not to compete with Seacor or its subsidiaries or affiliates. For two (2) years from Closing Date, 12 Plaisance and Sea Horse Marine, Inc. and La Salle Offshore, Inc., who intervene solely for purposes of this Paragraph 13, will not, directly or indirectly, for themselves, or as agent of or on behalf of, or in conjunction with, any person, firm or corporation, engage in, represent, furnish consulting services to, be employed by, or have any interest in (whether as an owner, principal, shareholder, partner, joint venturer or member (excluding stock in a publicly-held corporation) or as a director, officer, lender, agent, consultant or independent contractor), a national or regional offshore crewboat, offshore utility, environmental response, towing or supply vessel service organization, or similar activity which competes with Company or Seacor or any of its subsidiaries and affiliates, in the parishes in the State of Louisiana, and in the counties of the States of Texas, Alabama, Florida and Mississippi as described on the attached Schedule 13; provided, however, it is understood that Sea Horse Marine, Inc. ("Sea Horse") and La Salle Offshore, Inc. ("La Salle"), for whom certain Plaisance personnel are officers, directors or shareholders intend to continue to operate the Vessel Sea Horse VI and in the vessel brokerage business and the conduct of such business in said corporations shall not violate the terms and conditions of this paragraph only insofar as to the following allowed activities. Activities allowed, within the context of this Non Compete section, with respect to the brokerage business shall be those activities where Plaisance acts as a marine broker, as that term is generally understood within the marine industry, but excludes actual vessel ownership by Plaisance, through either direct ownership or through any financial lease or bareboat or demise charter where Plaisance is the bareboat or demise charterer. In addition to the foregoing, for a period of two (2) years following the Closing, Plaisance shall not, nor shall they allow any entity that they control, to solicit any employee of the Company or any affiliate of Seacor to work for any person or entity other than the Company or any affiliate of Seacor. Notwithstanding the foregoing, it is understood that Phillip G. Plaisance will become an employee of Seacor or its subsidiaries or affiliates and the performance of his duties as such an employee will not violate the provisions of this Section and further Plaisance's (collectively) ownership of Sea Horse and LaSalle will not violate the provisions of this Section. 14. EXPENSES: Plaisance and Seacor agree that, except as otherwise provided herein, each shall bear and shall be solely responsible for all their own costs and expenses, including their attorneys' and accountants' fees, incurred in connection with the transactions contemplated by this Agreement. 15. BROKERS: All negotiations relative to this Agreement, and the transactions contemplated hereby, have been carried on directly between the parties, without the intervention of any person, or without any act whatsoever, that may give rise to any valid claim against the other for a broker's commission or similar payment. Plaisance and Seacor agree to indemnify, defend and hold the other harmless for any and all damages, costs and expenses (including reasonable attorneys' fees), arising out of, or in any way resulting from the breach of this representation. 16. INSPECTION: Seacor shall have the right to inspect the Property at any time prior to Closing Date. Plaisance agrees to cause Company to cooperate 13 with Seacor in scheduling the inspection of the Vessels of the Company of such times and places requested by Seacor. 17. NOTICES: All notices which may be given under any provision of this Agreement shall be deemed to have been given when: (a) Served by: (i) facsimile or telex, to be confirmed by certified, first class mail, (ii) personal delivery, (iii) mailed by certified, first class mail, return receipt requested, postage pre-paid, or (iv) forwarded by Federal Express, Airborne Express, United Parcel Service or other established and reputable courier service; and (b) Properly addressed to the Plaisance or the Seacor, as the case may be, as follows: (i) In case of notice to Plaisance: Phillip G. Plaisance, Individually and on behalf of Judy C. Plaisance, Scott M. Plaisance and Julie P. Callais 9712 Highway 1 Lockport, LA 70374 Telephone: (504) 532-6759 Facsimile: (504) 532-6934 (ii) In case of notice to Seacor: SEACOR SMIT Inc. 11200 Richmond Avenue Suite 400 Houston, TX 77082 Attention: Milton R. Rose Telephone: (713) 782-5990 Facsimile: (713) 782-5991 18. SEVERABILITY: If any provision of this Agreement is held to be invalid or unenforceable, in any respect, such invalidity or unenforceability shall not affect or impair the validity or enforceability of the remaining provisions of this Agreement, but, to the contrary, this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. 19. MODIFICATION; AMENDMENT: This Agreement may only be modified or amended in writing by an instrument executed by each party hereto. 20. ASSIGNMENT; SURVIVAL: This Agreement may not be assigned by either Plaisance or Seacor without the prior written consent of the other, except that Seacor may assign this Agreement to any of its affiliates or subsidiaries without the consent of Plaisance. All indemnities, warranties, remedies and obligations of Plaisance in favor of Seacor, or of Seacor in favor of Plaisance, shall survive any such assignment, the execution of this Agreement, and the Closing. 14 21. GOVERNING LAW: This Agreement shall be governed by the laws of the State of Louisiana and where applicable the laws of the United States of America. 22. INCORPORATION; ENTIRE AGREEMENT: This Agreement includes any and all Schedules annexed hereto, all of which are incorporated herein by this reference. This Agreement constitutes the entire understanding of the parties and supersedes any and all other agreements, written or oral, with respect to the subject matter hereof. 23. ARBITRATION: Any disputes arising hereunder or in connection herewith shall be resolved by binding arbitration in accordance with the rules and procedures of the American Arbitration Association, utilizing a panel of three arbitrators. The arbitration shall be held in New Orleans, Louisiana. The parties shall have the right to enforce specific performance of this agreement, in addition to any other remedies they may have at law. 24. FURTHER ASSURANCES: From and after Closing, Plaisance and Seacor respectively shall do all things reasonably necessary to effectuate the transactions provided for herein. Without limiting the foregoing, Plaisance shall assist Seacor and Company in regard to Company's relationships with the existing customers of Company. 25. TAX RETURNS: Seacor and Plaisance agree to have a "short year" tax return for the Company for 2001 prepared by an accounting firm mutually agreeable to the parties. Seacor agrees to cause the Company not to amend prior year's returns. 26. INTERVENTION OF CERTAIN SPOUSES: Erin Plaisance, wife of Scott M. Plaisance and Donny Callais, husband of Julie P. Callais, hereby intervene respectively herein for the sole purpose of acknowledging that the shares exchanged and to be received hereunder constitute the separate and paraphernal property of Scott M. Plaisance and Julie P. Callais, respectively, and form no part of the community of acquets and gains existing between them respectively. Add intervention of two other companies for non-compete. IN WITNESS WHEREOF, Plaisance and Seacor have caused these presents to be executed as of the date set forth above. /s/ Phillip G. Plaisance - ------------------------ PHILLIP G. PLAISANCE /s/ Judy C. Plaisance - --------------------- JUDY C. PLAISANCE /s/ Scott M. Plaisance By: /s/ Donny Callais - ---------------------- ------------------------------ SCOTT M. PLAISANCE ERIN PLAISANCE, wife of Scott M. Plaisance, Through her agent And Attorney in Fact Donny Callais 15 /s/ Julie P. Callais /s/ Donny Callais - -------------------- ------------------------- JULIE P. CALLAIS DONNY CALLAIS, husband of Julie P. Callais SEACOR SMIT Inc. By: /s/ Milton R. Rose ------------------ Name: Milton R. Rose Title: Vice President INTERVENORS: LA SALLE OFFSHORE, INC. By: /s/ Judy C. Plaisance --------------------- President SEA HORSE MARINE, INC. By: /s/ Judy C. Plaisance --------------------- President 16 EX-4 3 0003.txt EXHIBIT 4.1 Exhibit 4.1 ----------- INVESTMENT AND REGISTRATION RIGHTS AGREEMENT -------------------------------------------- INVESTMENT AND REGISTRATION RIGHTS AGREEMENT, dated December 19, 2000 (this "Agreement"), among SEACOR SMIT Inc., a Delaware corporation (the "Company"), and the other persons signatory hereto (collectively, the "Holders" and each, individually, a "Holder"). W I T N E S S E T H: WHEREAS, pursuant to the transactions (the "Transactions") contemplated by an Agreement and Plan of Merger dated as of December 19, 2000 (the "Merger Agreement") between the Company and SCF Corporation, a Delaware corporation ("SCF"), SCF will merge with and into SEACOR and each Holder will receive the number of shares of Common Stock (as hereinafter defined) and/or options to acquire the number of shares of Common Stock set forth opposite his, her or its name, as applicable, on Annex I hereto (such shares of Common Stock to be received by Holders, together with the shares of Common Stock issuable upon the exercise of the options referred to on Annex I hereto (the "Option Shares"), are referred to herein collectively, as the "Shares"); WHEREAS, the Shares will be delivered to the Holders pursuant to the Transactions without registration under the Securities Act in reliance on an applicable exemption from such registration, and the Company and the Holders desire to provide for the registration of the resale by the Holders of Registrable Securities (as hereinafter defined) 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, and only upon, the Effective Date (as defined in the Merger Agreement). NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto, intending to be legally bound, hereby agree as follows: Section 1. Certain Other Definitions. In addition to capitalized terms defined elsewhere herein, as used in this Agreement, the following capitalized terms (in their singular and plural forms, as applicable) have the following meanings: "Business Day" means any day on which commercial banks are open for business in the City of New York, Borough of Manhattan. "Commission" means the United States Securities and Exchange Commission and any successor United States federal agency or governmental authority having similar powers. "Common Stock" means the common stock, $.01 par value, of the Company. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder. The terms "register," "registered" and "registration" means a registration effected by preparing and filing with the Commission a registration statement on an appropriate form in compliance with the Securities Act, and the declaration or order of the Commission of the effectiveness of such registration statement under the Securities Act. "Registrable Securities" means the Shares and any other securities issued by the Company to the Holders at any time after the closing of the Transactions in respect of the Shares (and in respect of the Common Stock generally) by means of exchange, reclassification, dividend, distribution, split up, combination, subdivision, recapitalization, merger, spin-off, reorganization or otherwise; provided, however, that as to any Registrable Securities, such securities shall cease to constitute the same for purposes of this Agreement if and when (i) a registration statement with respect to the sale of such securities shall have been declared effective by the Commission and such securities shall have been sold pursuant thereto in accordance with the intended plan and method of distribution therefor set forth in the final prospectus forming part of such registration statement; (ii) such securities shall have been sold in satisfaction of all applicable resale provisions of Rule 144 under the Securities Act; (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 may be resold pursuant to Rule 144(k) under the Securities Act (or any successor provision) or all of such Holder's Registrable Securities may be resold in a single ninety (90) day period under Rule 144 of the Securities Act and do not require qualification under any state securities or "blue sky" law then in effect, or the use of an applicable exemption therefrom and, in each case, the Company has notified the transfer agent for the Common Stock that any restrictive legend on such Shares may be removed in connection with a transfer thereof; or (iv) such securities cease to be issued and outstanding for any reason and, provided further, that Option Shares shall cease to constitute Registrable Securities if and when, and for so long as, a registration statement on Form S-8 (or any applicable successor form) with respect to the Option Shares shall be effective under the Securities Act. "Registration Expenses" means all expenses incurred by the Company in complying with Section 4 hereof, including, without limitation, all registration and filing fees (including fees and expenses associated with filings required to be made with the National Association of Securities Dealers, Inc. and any national securities exchange or U.S. automated inter-dealer quotation system of a registered national securities association on which the Common Stock is listed or otherwise admitted to unlisted trading privileges), printing expenses, if any (including expenses of printing certificates for the Common Stock being registered in a form eligible for deposit with The Depository Trust Company and of printing registration statements and prospectuses), fees and disbursements of counsel for the Company, fees and expenses of compliance with state securities or "blue sky" laws (including reasonable fees and expenses of one firm of counsel for underwriters, if any, in connection with "blue sky" qualifications of the Registrable Securities being registered and the determination of eligibility for investment under the laws of such jurisdictions 2 designated by the underwriters, if any), accountants' fees and expenses (including the expenses of any special audits or "comfort" letters incident to or required by any such registration), transfer taxes, fees of transfer agents and registrars, and fees and disbursements of underwriters customarily paid by issuers or sellers of securities, but excluding underwriting discounts and commissions and broker-dealer concessions and allowances and marketing expenses. "Securities Act" means the Securities Act of 1933, as 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 Securities Act 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 Holder severally (and not jointly) hereby represents, acknowledges, covenants and agrees as follows: (i) the Shares are being acquired for such Holder's own account for investment purposes only and not with a view to any public resale, public distribution or public offering thereof within the meaning of the Securities Act or any state securities or "blue sky" law; (ii) to the knowledge of such Holder, the Shares have not been registered under the Securities Act or any state securities or "blue sky" law; (iii) such Holder either is an "accredited investor" within the meaning of Rule 501 of Regulation D under the Securities Act, or (alone or together with such Holder's purchaser representative, if any), has such knowledge and experience in financial and business matters that such Holder is capable of evaluating the relative merits and risks of the prospective investment in the Shares and able to bear the economic consequences thereof; (iv) such Holder will not offer for sale, sell or otherwise transfer any of the Shares (or any interest therein) except pursuant to a Shelf Registration Statement as contemplated hereby or pursuant to an exemption from the registration requirements of the Securities Act and any applicable state securities or "blue sky" laws and, in the case of an offer to sell, sale or other transfer pursuant to such an exemption, the Company has received (or waived the requirement therefor) a written opinion of U.S. counsel in form and substance satisfactory to it to the effect that such disposition is exempt from such registration requirements, provided that such Holder, prior to effecting any transfer of Shares pursuant to such an exemption, will cause the intended transferee of the Shares to agree to take and hold such Shares subject to the terms and conditions of this Agreement (and, in that connection, to execute and deliver to the Company such agreements and instruments as the Company reasonably may request to evidence the same), and further acknowledges that the certificates evidencing such Shares are required to have endorsed thereon a legend to the effect set forth in Section 3(a) hereof; (v) in making such Holder's decision to invest in the Registrable Securities, such Holder has relied upon independent investigations made by such Holder and, to the extent believed by him or it to be appropriate, has relied on investigations made by such Holder's representatives, including such Holder's own legal, accounting, investment, financial, tax and other professional advisors; (vi) such Holder has 3 been furnished and has been afforded an opportunity to review the Company's 1999 Annual Report, the Company's Proxy Statement for use in connection with its 2000 Annual Meeting of Stockholders, the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1999 and the Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, June 30 and September 30, 2000 (collectively, the "Public Reports"); and (vii) such Holder and such Holder's purchaser representatives, as applicable, have been given the opportunity to examine all documents, including the Public Reports, and to ask questions of, and to receive answers from, the Company and its representatives concerning the terms of the Transactions and such Holder's investment in the Shares. Section 3. Restrictions on Transfer. Each certificate representing the Shares shall have endorsed thereon a legend in substantially the following form: "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW, AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS PURSUANT TO AN AVAILABLE EXEMPTION THEREFROM. IN ALL CASES, SUCH SHARES MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THE INVESTMENT AND REGISTRATION RIGHTS AGREEMENT DATED DECEMBER 19, 2000, 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 SMIT INC., 11200 RICHMOND AVENUE, SUITE 400, HOUSTON, TEXAS 77082, ATTENTION: SECRETARY." Section 4. Registration under Securities Act, etc. (a) Shelf-Registration. (i) General. The Company shall prepare and file with the Commission as soon as practicable and in no event later than 60 days after the Effective Date, 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"), and shall use its reasonable best efforts to cause the Shelf Registration Statement to be declared effective by the Commission as soon as reasonably practicable thereafter. It is understood and agreed that the Shelf Registration Statement may have included therein shares of Common Stock offered for sale, from time to time, by holders of Common 4 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 best efforts to keep the Shelf Registration Statement continuously effective (subject to Suspension Periods (defined below) and extensions coincident with the length of such Suspension Periods) from the date the Shelf Registration Statement was first declared effective by the Commission until the first to occur of the date on which (A) the Shares (including any Options Shares) and any other securities issued to the Holders at any time after the closing of the Transactions in respect of the Shares (by means of exchange, reclassification, dividend, distribution, split up, combination, subdivision, recapitalization, merger, spin-off, reorganization or otherwise) cease to be Registrable Securities and (B) the date on which all their Registrable Securities covered by the Shelf Registration Statement have been sold thereunder in accordance with the plan and method of distribution intended by each Holder and as disclosed in the prospectus forming part of the Shelf Registration Statement (the "Effective Period"). For purposes hereof, "Suspension Period" shall mean a period of time commencing on the date on which the Company provides notice that the Shelf Registration Statement is no longer effective, that the prospectus included in the Shelf Registration Statement no longer complies with the requirements therefor prescribed by Section 10(a) of the Securities Act, or that the Company in its reasonable, good faith judgment, for valid business purposes (including, without limitation, in connection with a proposed or pending issuance or sale of the Company's debt or equity securities by the Company or any other Person or a proposed or pending merger, reorganization, consolidation, recapitalization, public offering, sale of assets or other extraordinary corporate transaction, whether or not publicly announced, involving the Company or any of its Significant Subsidiaries) has elected to require the suspension of the sale by Holders of their Registrable Securities pursuant to the Shelf Registration Statement, and shall end on the date when each Holder of Registrable Securities either receives copies of the supplemented or amended prospectus contemplated by Section 4(b)(v) plus an additional five Business Days or otherwise is advised in writing by the Company that use of the prospectus may be resumed; provided, however, that no such Suspension Period shall exceed 120 consecutive days or more than 180 days during any period of 360 consecutive days. Each Holder agrees that it will not sell any Registrable Securities pursuant to the Shelf Registration Statement during any Suspension Period and the Company agrees to cause each Suspension Period to end as soon as reasonably practicable. The Company agrees that no other similarly situated holder of the Company's Common Stock will be permitted to sell Shares of the Company's Common Stock pursuant to a shelf registration statement during a Suspension Period. If one or more Suspension Periods occur, the Effective Period shall be extended by such number of days coincident with the aggregate number of days included in all Suspension Periods. (b) Registration Procedures. The Company shall: (i) cause any registration statement filed pursuant to Section 4 hereof and the related prospectus and any amendment or supplement thereto, as of the effective date of such registration statement, amendment or supplement, (A) to comply in all material respects with the applicable 5 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 during the Effective Period; 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(b)(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 6 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 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 for purposes of determining the Effective Period hereunder; (vi) use its best efforts to comply with all applicable rules and regulations of the Commission, and make available to holders of its securities, as soon as reasonably practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first month of the first fiscal quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act; and (vii) 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. (c) Preparation; Reasonable Investigation. In connection with the preparation and filing of each registration statement registering Registrable Securities under the Securities Act as contemplated by this Agreement, the Company shall give each Holder, its underwriters, if any, and each Holder's counsel and accountants, the opportunity to review the Company's preparation of such registration statement, each prospectus included in such registration statement or filed with the Commission and each amendment or supplement thereto, and the Company will give such person or persons such reasonable access to the Company's books and records and such opportunities to discuss the business of the Company with its officers and the independent public accountants who have certified its financial statements as shall be necessary for each such Holder and persons to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act. To minimize disruption and expense to the Company during the course of the registration process, each Holder shall use its reasonable best efforts to coordinate its investigation and due diligence efforts and, to the extent practicable, will act through a single firm of counsel and a single firm of accountants and, if requested by the 7 Company, will enter into confidentiality agreements with the Company in a form satisfactory to the Company. (d) 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 (each a "Loss" and collectively "Losses"), joint or several, to which such Holder or any such persons may become subject under the Securities Act or otherwise, to the extent that such Losses (or related actions or proceedings) arise out of or are based upon (A) any untrue statement or alleged untrue statement of any material fact contained in an effective registration statement in which such Registrable Securities were included for registration under the Securities Act, any preliminary prospectus if used prior to the effective date of the registration statement (unless such statement is corrected in the final prospectus and the Company previously furnishes copies thereof to any Holder of Registrable Securities seeking indemnification pursuant to this Section 4(d), final prospectus (as supplemented, if the Company shall have filed with the Commission any supplement thereto) if used during the period in which the Company is required to keep the registration statement to which such prospectus relates current and otherwise in compliance with Section 10(a) of the Securities Act, or (B) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the Company shall have no obligation to provide any indemnification hereunder if any such Losses (or actions or proceedings in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, preliminary prospectus or final prospectus, as the case may be, in reliance upon and in conformity with written information furnished to the Company by such Holder for inclusion in such registration statement; and provided, 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 any preliminary prospectus, if such untrue statement or alleged untrue statement or omission or alleged omission shall have been corrected in the final prospectus and such Holder or any such other person shall have failed to deliver such final prospectus 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(d)(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. 8 (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 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(d)(i) and 4(d)(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(d)(i) or 4(d)(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 indemnified party notifies an indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. Notwithstanding the foregoing, the indemnified party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party, unless (A) the employment of such counsel shall have been authorized in writing by the indemnifying party, (B) the indemnifying party shall not have employed counsel (reasonably satisfactory to the indemnified party) to take charge of the defense of such Action, within a reasonable time after notice of the commencement thereof, or (C) such indemnified party reasonably shall have concluded that there may be defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and the indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party. If either of the events specified in clauses (A), (B) or (C) of the preceding sentence shall have occurred or otherwise shall be applicable, then the fees and expenses of one counsel (or firm of counsel) selected by a majority in interest of the indemnified parties (measured by reference to their ownership of Registrable Securities) shall be borne by the indemnifying party. If, in any case, the indemnified party employs separate counsel, the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party. Anything in this 9 Section 4(d)(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 that 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 indemnifying party, 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(d)(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 Holder's Payments. Notwithstanding any provision of this Agreement to the contrary, the liability of each Holder of Registrable Securities under this Section 4(d) 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. (vii) Adjustment of Liability. Any indemnifiable Loss under this Section 4 shall be reduced by any tax benefit accruing to the indemnified party on account of the indemnification payment and by the amounts actually recovered by the indemnified party from its insurance carriers in respect of such Loss, and any amounts recovered by such party subsequent to the payment by the indemnifying party hereunder with respect to the same claim shall be remitted to such indemnifying party, except that such remittance shall not exceed the amount of the indemnification payment made by such indemnifying party. 10 (e) 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. 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 6. Amendments and Waivers. This Agreement may be amended or modified and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company shall have obtained the written consent to such amendment, modification, action or omission to act, of each Holder. Each Holder shall be bound by any consent authorized by this Section 6, whether or not such Registrable Securities shall have been marked to indicate such consent. Section 7. Notices. All notices, communications and deliveries required or permitted by this Agreement shall be made in writing signed by the party making the same, shall specify the Section of this Agreement pursuant to which it is given or being made and shall be deemed given or made (i) on the date delivered if delivered by telecopy or in person, (ii) on the third Business Day after it is mailed if mailed by registered or certified mail (return receipt requested) (with postage and other fees prepaid) or (iii) on the day after it is delivered, prepaid, to an overnight express delivery service that confirms to the sender delivery on such day, as follows: (a) if to the Holders, at their respective addresses listed on Annex I hereto; and (b) if to the Company, at 1370 Avenue of the Americas, New York, New York 10019, Attn: Alice N. Gran, Esq., Telecopy No.: (212) 582-8522; or to such other representative or at such other address of a party as such party hereto may furnish to the other parties in writing. If notice is given pursuant to this Section 7 of any assignment to a permitted successor or assign of a party hereto, the notice shall be given as set forth above to such successor or assign of such party. Section 8. Secretary to Retain Copy. A copy of this Agreement, including all Exhibits hereto, shall be filed with the Secretary of the Company, 11 and the Secretary shall make it available to each Holder of Registrable Securities at all reasonable times during normal business hours. Section 9. 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 10. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York (other than its rules of conflicts of laws to the extent the application of the laws of another jurisdiction would be required thereby). Section 11. Severability. If any provision of this Agreement or the application thereof to any person or circumstances is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the application of such provision to persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. Upon such determination, the parties shall negotiate in good faith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties. Section 12. Termination. The rights and obligations under this Agreement shall automatically terminate upon the earlier to occur of (a) all Shares issued to the Holders pursuant to the Transactions cease to be Registrable Securities and (b) the end of the Effective Period, as the same may be extended pursuant to Sections 4(a)(ii) and 4(a)(iii) hereof. Section 13. Miscellaneous. The Company shall not after the date of this Agreement enter into any agreement with respect to the Common Stock which violates the rights granted to each Holder in this Agreement. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning of this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. Section 14. Effectiveness. Notwithstanding anything contained herein to the contrary, this Agreement shall become effective upon, and only upon, the Effective Date (as defined in the Merger Agreement). If the Merger Agreement is terminated prior to the Effective Date (as defined therein), then this Agreement shall be of no force or effect. * * * 12 IN WITNESS WHEREOF, the parties have executed this Investment and Registration Rights Agreement to be effective for all purposes as of the Merger Agreement Effective Date. SEACOR SMIT INC. ---------------- By: /s/Alice N. Gran -------------------------------------------- Name: Alice N. Gran Title: Vice President and General Counsel HOLDERS ------- VSS HOLDING CORPORATION By: /s/ Charles Fabrikant ---------------------------------------------- Name: Charles Fabrikant Title: President FABRIKANT INTERNATIONAL CORPORATION By: /s/ Charles Fabrikant ---------------------------------------------- Name: Charles Fabrikant Title: President HARLAN FABRIKANT TRUST U/A/D 12/16/75 By: /s/ Charles Fabrikant ---------------------------------------------- Name: Charles Fabrikant Title: Trustee ERIC FABRIKANT TRUST U/A/D 12/22/81 By: /s/ Charles Fabrikant ---------------------------------------------- Name: Charles Fabrikant Title: Trustee Signature Page 1 of 3 to Registration Rights Agreement WINDCREST PARTNERS, L.P. By: /s/ Robert J. Gellert --------------------------------------------- Name: Robert J. Gellert Title: General Partner Signature Page 2 of 3 to Registration Rights Agreement /s/Randall Blank /s/Charlene Furman ---------------- ------------------ Randall Blank Charlene Furman /s/Kathleen Anna Clements /s/David Gavrin ------------------------- --------------- Kathleen Anna Clements David Gavrin /s/Granville Conway /s/Aaron Gilman ------------------- --------------- Granville Conway Aaron Gilman /s/Charles Fabrikant /s/Robert Gilman - -------------------- ---------------- Charles Fabrikant Robert Gilman /s/Mary A. Faccio /s/Martin Gold ----------------- -------------- Mary A. Faccio Martin Gold /s/Fred Farkouh /s/Andrew Morse --------------- --------------- Fred Farkouh Andrew Morse /s/Martha M. Farkouh /s/Carl Vowell -------------------- -------------- Martha M. Farkouh Carl Vowell /s/Thomas Flint /s/ Matthew Webber --------------- ------------------ Thomas Flint Matthew Webber Signature Page 3 of 3 to Registration Rights Agreement EX-4 4 0004.txt EXHIBIT 4.2 Exhibit 4.2 ----------- INVESTMENT AND REGISTRATION RIGHTS AGREEMENT -------------------------------------------- INVESTMENT AND REGISTRATION RIGHTS AGREEMENT, dated January 9, 2001 (this "Agreement"), among SEACOR SMIT Inc., a Delaware corporation (the "Company"), and the other persons signatory hereto (collectively, the "Holders" and each, individually, a "Holder"). W I T N E S S E T H: WHEREAS, pursuant to the transactions (the "Transactions") contemplated by a Stock Exchange Agreement (the "Stock Exchange Agreement") dated as of January 9, 2001 between the Company and the Holders, who are the owners of 100% of the capital stock of Plaisance Marine, Inc., a Louisiana corporation ("Plaisance"), the Holders will exchange all of their shares in Plaisance for shares of Common Stock. Each Holder will receive the number of shares of Common Stock (as hereinafter defined), set forth opposite his or her name, as applicable, on Annex I hereto (such shares, together with such additional shares of Common Stock as may be issued to the Holders pursuant to the Stock Exchange Agreement, referred to herein collectively, as the "Shares"); WHEREAS, the Shares will be delivered to the Holders pursuant to the Transactions without registration under the Securities Act in reliance on an applicable exemption from such registration, and the Company and the Holders desire to provide for the registration of the resale by the Holders of Registrable Securities (as hereinafter defined) 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, and only upon, the Closing Date (as defined in the Stock Exchange Agreement) (the "Effective Date"). NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto, intending to be legally bound, hereby agree as follows: SECTION 1. Certain Other Definitions. In addition to capitalized terms defined elsewhere herein, as used in this Agreement, the following capitalized terms (in their singular and plural forms, as applicable) have the following meanings: "Business Day" means any day on which commercial banks are open for business in the City of New York, Borough of Manhattan. "Commission" means the United States Securities and Exchange Commission and any successor United States federal agency or governmental authority having similar powers. "Common Stock" means the common stock, $.01 par value per share, of the Company. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder. The terms "register," "registered" and "registration" means a registration effected by preparing and filing with the Commission a registration statement on an appropriate form in compliance with the Securities Act, and the declaration or order of the Commission of the effectiveness of such registration statement under the Securities Act. "Registrable Securities" means the Shares and any other securities issued by the Company to the Holders at any time after the closing of the Transactions in respect of the Shares (and in respect of the Common Stock generally) by means of exchange, reclassification, dividend, distribution, split up, combination, subdivision, recapitalization, merger, spin-off, reorganization or otherwise; provided, however, that as to any Registrable Securities, such securities shall cease to constitute the same for purposes of this Agreement if and when (i) a registration statement with respect to the sale of such securities shall have been declared effective by the Commission and such securities shall have been sold pursuant thereto in accordance with the intended plan and method of distribution therefor set forth in the final prospectus forming part of such registration statement; (ii) such securities shall have been sold in satisfaction of all applicable resale provisions of Rule 144 under the Securities Act; (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 may be resold pursuant to Rule 144(k) under the Securities Act (or any successor provision) or all of such Holder's Registrable Securities may be resold in a single ninety (90) day period under Rule 144 of the Securities Act and do not require qualification under any state securities or "blue sky" law then in effect, or the use of an applicable exemption therefrom and, in each case, the Company has notified the transfer agent for the Common Stock that any restrictive legend on such Shares may be removed in connection with a transfer thereof; or (iv) such securities cease to be issued and outstanding for any reason. "Registration Expenses" means all expenses incurred by the Company in complying with Section 4 hereof, including, without limitation, all registration and filing fees (including fees and expenses associated with filings required to be made with the National Association of Securities Dealers, Inc. and any national securities exchange or U.S. automated inter-dealer quotation system of a registered national securities association on which the Common Stock is listed or otherwise admitted to unlisted trading privileges), printing expenses, if any (including expenses of printing certificates for the Common Stock being registered in a form eligible for deposit with The Depository Trust Company and of printing registration statements and prospectuses), fees and disbursements of counsel for the Company, fees and expenses of compliance with state securities or "blue sky" laws (including reasonable fees and expenses of one firm of counsel for underwriters, if any, in connection with "blue sky" qualifications of the Registrable Securities being registered and the determination of eligibility for investment under the laws of such jurisdictions designated by the underwriters, if any), accountants' fees and expenses (including the expenses of any special audits or "comfort" letters incident to or required by 2 any such registration), transfer taxes, fees of transfer agents and registrars, and fees and disbursements of underwriters customarily paid by issuers or sellers of securities, but excluding underwriting discounts and commissions and broker-dealer concessions and allowances and marketing expenses. "Securities Act" means the Securities Act of 1933, as 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 Securities Act 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 Holder severally (and not jointly) hereby represents, acknowledges, covenants and agrees as follows: (i) the Shares are being acquired for such Holder's own account for investment purposes only and not with a view to any public resale, public distribution or public offering thereof within the meaning of the Securities Act or any state securities or "blue sky" law; (ii) to the knowledge of such Holder, the Shares have not been registered under the Securities Act or any state securities or "blue sky" law; (iii) such Holder either is an "accredited investor" within the meaning of Rule 501 of Regulation D under the Securities Act, or (alone or together with such Holder's purchaser representative, if any), has such knowledge and experience in financial and business matters that such Holder is capable of evaluating the relative merits and risks of the prospective investment in the Shares and able to bear the economic consequences thereof; (iv) such Holder will not offer for sale, sell or otherwise transfer any of the Shares (or any interest therein) except pursuant to a Shelf Registration Statement (defined below) as contemplated hereby or pursuant to an exemption from the registration requirements of the Securities Act and any applicable state securities or "blue sky" laws and, in the case of an offer to sell, sale or other transfer pursuant to such an exemption, the Company has received (or waived the requirement therefor) a written opinion of U.S. counsel in form and substance satisfactory to it to the effect that such disposition is exempt from such registration requirements, provided that such Holder, prior to effecting any transfer of Shares pursuant to such an exemption, will cause the intended transferee of the Shares to agree to take and hold such Shares subject to the terms and conditions of this Agreement (and, in that connection, to execute and deliver to the Company such agreements and instruments as the Company reasonably may request to evidence the same), and further acknowledges that the certificates evidencing such Shares are required to have endorsed thereon a legend to the effect set forth in Section 3 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 furnished and has been afforded an opportunity to review the Company's 1999 Annual Report, the Company's Proxy 3 Statement for use in connection with its 2000 Annual Meeting of Stockholders, the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1999 and the Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, June 30 and September 30, 2000 (collectively, the "Public Reports"); and (vii) such Holder and such Holder's purchaser representatives, as applicable, have been given the opportunity to examine all documents, including the Public Reports, and to ask questions of, and to receive answers from, the Company and its representatives concerning the terms of the Transactions and such Holder's investment in the Shares. SECTION 3. Restrictions on Transfer. Each certificate representing the Shares shall have endorsed thereon a legend in substantially the following form: "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW, AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS PURSUANT TO AN AVAILABLE EXEMPTION THEREFROM. IN ALL CASES, SUCH SHARES MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THE INVESTMENT AND REGISTRATION RIGHTS AGREEMENT DATED JANUARY 9, 2001, 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 SMIT INC., 11200 RICHMOND AVENUE, SUITE 400, HOUSTON, TEXAS 77082, ATTENTION: SECRETARY." SECTION 4. Registration under Securities Act, etc. (a) Shelf-Registration. (i) General. The Company shall prepare and file with the Commission as soon as practicable and in no event later than 60 days after the Effective Date, 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 4 Registrable Securities by the Holders in accordance with the plan and method of distribution set forth in the prospectus forming part of such registration statement (a "Shelf Registration Statement"), and shall use its reasonable best efforts to cause the Shelf Registration Statement to be declared effective by the Commission as soon as reasonably practicable thereafter. It is understood and agreed that 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 best efforts to keep the Shelf Registration Statement continuously effective (subject to Suspension Periods (defined below) and extensions coincident with the length of such Suspension Periods) from the date the Shelf Registration Statement was first declared effective by the Commission until the first to occur of the date on which (A) the Shares and any other securities issued to the Holders at any time after the closing of the Transactions in respect of the Shares (by means of exchange, reclassification, dividend, distribution, split up, combination, subdivision, recapitalization, merger, spin-off, reorganization or otherwise) cease to be Registrable Securities and (B) the date on which all their Registrable Securities covered by the Shelf Registration Statement have been sold thereunder in accordance with the plan and method of distribution intended by each Holder and as disclosed in the prospectus forming part of the Shelf Registration Statement (the "Effective Period"). For purposes hereof, "Suspension Period" shall mean a period of time commencing on the date on which the Company provides notice that the Shelf Registration Statement is no longer effective, that the prospectus included in the Shelf Registration Statement no longer complies with the requirements therefor prescribed by Section 10(a) of the Securities Act, or that the Company in its reasonable, good faith judgment, for valid business purposes (including, without limitation, in connection with a proposed or pending issuance or sale of the Company's debt or equity securities by the Company or any other Person or a proposed or pending merger, reorganization, consolidation, recapitalization, public offering, sale of assets or other extraordinary corporate transaction, whether or not publicly announced, involving the Company or any of its Significant Subsidiaries) has elected to require the suspension of the sale by Holders of their Registrable Securities pursuant to the Shelf Registration Statement, and shall end on the date when each Holder of Registrable Securities either receives copies of the supplemented or amended prospectus contemplated by Section 4(b)(v) plus an additional five Business Days or otherwise is advised in writing by the Company that use of the prospectus may be resumed; provided, however, that no such Suspension Period shall exceed 120 consecutive days or more than 180 days during any period of 360 consecutive days. Each Holder agrees that it will not sell any Registrable Securities pursuant to the Shelf Registration Statement during any Suspension Period and the Company agrees to cause each Suspension Period to end as soon as reasonably practicable. The Company agrees that no other similarly situated holder of the Company's Common Stock will be permitted to sell Shares of the Company's Common Stock pursuant to a shelf registration statement during a Suspension Period. If one or more Suspension Periods occur, the Effective Period 5 shall be extended by such number of days coincident with the aggregate number of days included in all Suspension Periods. (b) Registration Procedures. The Company shall: (i) cause any registration statement filed pursuant to Section 4 hereof and the related prospectus and any amendment or supplement thereto, as of the effective date of such registration statement, amendment or supplement, (A) to comply in all material respects with the applicable requirements of the Securities Act and the rules and regulations of the Commission promulgated thereunder and (B) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement during the Effective Period; 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(b)(iv), be obligated to be so qualified, or to subject itself to taxation in 6 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 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 for purposes of determining the Effective Period hereunder; (vi) use its best efforts to comply with all applicable rules and regulations of the Commission, and make available to holders of its securities, as soon as reasonably practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first month of the first fiscal quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act; and (vii) 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. (c) Preparation; Reasonable Investigation. In connection with the preparation and filing of each registration statement registering Registrable Securities under the Securities Act as contemplated by this Agreement, the Company shall give each Holder, its underwriters, if any, and each Holder's counsel and accountants, the opportunity to review the Company's preparation of such registration statement, each prospectus included in such registration statement or filed with the Commission and each amendment or supplement thereto, and the Company will give such person or persons such reasonable access to the 7 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. To minimize disruption and expense to the Company during the course of the registration process, each Holder shall use its reasonable best efforts to coordinate its investigation and due diligence efforts and, to the extent practicable, will act through a single firm of counsel and a single firm of accountants and, if requested by the Company, will enter into confidentiality agreements with the Company in a form satisfactory to the Company. (d) 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 (each a "Loss" and collectively "Losses"), joint or several, to which such Holder or any such persons may become subject under the Securities Act or otherwise, to the extent that such Losses (or related actions or proceedings) arise out of or are based upon (A) any untrue statement or alleged untrue statement of any material fact contained in an effective registration statement in which such Registrable Securities were included for registration under the Securities Act, any preliminary prospectus if used prior to the effective date of the registration statement (unless such statement is corrected in the final prospectus and the Company previously furnishes copies thereof to any Holder of Registrable Securities seeking indemnification pursuant to this Section 4(d), final prospectus (as supplemented, if the Company shall have filed with the Commission any supplement thereto) if used during the period in which the Company is required to keep the registration statement to which such prospectus relates current and otherwise in compliance with Section 10(a) of the Securities Act, or (B) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the Company shall have no obligation to provide any indemnification hereunder if any such Losses (or actions or proceedings in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, preliminary prospectus or final prospectus, as the case may be, in reliance upon and in conformity with written information furnished to the Company by such Holder for inclusion in such registration statement; and provided, 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 any preliminary prospectus, if such untrue statement or alleged untrue statement or omission or alleged omission shall have been corrected in the final prospectus and such Holder or any such other person shall 8 have failed to deliver such final prospectus 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(d)(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 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(d)(i) and 4(d)(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(d)(i) or 4(d)(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 indemnified party notifies an indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. Notwithstanding the foregoing, the indemnified party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party, unless (A) the employment of such counsel shall have been authorized in writing by the indemnifying party, (B) the indemnifying party shall not have employed counsel (reasonably satisfactory to the indemnified party) to take charge of the defense of such Action, within a 9 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 any of the events specified in clauses (A), (B) or (C) of the preceding sentence shall have occurred or otherwise shall be applicable, then the fees and expenses of one counsel (or firm of counsel) selected by a majority in interest of the indemnified parties (measured by reference to their ownership of Registrable Securities) shall be borne by the indemnifying party. If, in any case, the indemnified party employs separate counsel, the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party. Anything in this Section 4(d)(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 that 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 indemnifying party, 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(d)(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 Holder's Payments. Notwithstanding any provision of this Agreement to the contrary, the liability of each Holder of Registrable Securities under this Section 4(d) shall in no event exceed the net 10 proceeds received by such Holder from the sale of Registrable Securities covered by the registration statement giving rise to such liability. (vii) Adjustment of Liability. Any indemnifiable Loss under this Section 4 shall be reduced by any tax benefit accruing to and received by the indemnified party on account of the indemnification payment and by the amounts actually recovered by the indemnified party from its insurance carriers in respect of such Loss, and any amounts recovered by such party subsequent to the payment by the indemnifying party hereunder with respect to the same claim shall be remitted to such indemnifying party, except that such remittance shall not exceed the amount of the indemnification payment made by such indemnifying party. (e) 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. 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 6. Amendments and Waivers. This Agreement may be amended or modified and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company shall have obtained the written consent to such amendment, modification, action or omission to act, of each Holder. Each Holder shall be bound by any consent authorized by this Section 6. SECTION 7. Notices. All notices, communications and deliveries required or permitted by this Agreement shall be made in writing signed by the party making the same, shall specify the Section of this Agreement pursuant to which it is given or being made and shall be deemed given or made (i) on the date delivered if delivered by telecopy or in person, (ii) on the third Business Day after it is mailed if mailed by registered or certified mail (return receipt requested) (with postage and other fees prepaid) or (iii) on the day after it is delivered, prepaid, to an overnight express delivery service that confirms to the sender delivery on such day, as follows: 11 (a) if to the Holders, at their respective addresses listed on Annex I hereto; and (b) if to the Company, at 1370 Avenue of the Americas, New York, New York 10019, Attn: Alice N. Gran, Esq., Telecopy No.: (212) 582-8522; or to such other representative or at such other address of a party as such party hereto may furnish to the other parties in writing. If notice is given pursuant to this Section 7 of any assignment to a permitted successor or assign of a party hereto, the notice shall be given as set forth above to such successor or assign of such party. SECTION 8. Secretary to Retain Copy. A copy of this Agreement, including all Exhibits hereto, shall be filed with the Secretary of the Company, and the Secretary shall make it available to each Holder of Registrable Securities at all reasonable times during normal business hours. SECTION 9. 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 10. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York (other than its rules of conflicts of laws to the extent the application of the laws of another jurisdiction would be required thereby). SECTION 11. Severability. If any provision of this Agreement or the application thereof to any person or circumstances is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the application of such provision to persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. Upon such determination, the parties shall negotiate in good faith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties. SECTION 12. Termination. The rights and obligations under this Agreement (other than rights or obligations arising under Section 4(d) hereof) shall automatically terminate upon the earlier to occur of (a) all Shares issued to the Holders pursuant to the Transactions cease to be Registrable Securities and (b) the end of the Effective Period, as the same may be extended pursuant to Sections 4(a)(ii) and 4(a)(iii) hereof. SECTION 13. Miscellaneous. The Company shall not after the date of this Agreement enter into any agreement with respect to the Common Stock which violates the rights granted to each Holder in this Agreement. The headings in 12 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. SECTION 14. Effectiveness. Notwithstanding anything contained herein to the contrary, this Agreement shall become effective upon, and only upon, the Effective Date (as defined in the Stock Exchange Agreement). If the Stock Exchange Agreement is terminated prior to the Effective Date, then this Agreement shall be of no force or effect. * * * IN WITNESS WHEREOF, the parties have executed this Investment and Registration Rights Agreement to be effective for all purposes as of the Stock Exchange Agreement Effective Date. SEACOR SMIT INC. ---------------- By: /s/Milton R. Rose ------------------------- Name: Milton R. Rose Title: Vice President HOLDERS ------- /s/Phillip G. Plaisance ------------------------- Phillip G. Plaisance /s/Judy C. Plaisance ------------------------- Judy C. Plaisance /s/Scott M. Plaisance ------------------------- Scott M. Plaisance /s/Julie P. Callais ------------------------- Julie P. Callais 13 EX-23 5 0005.txt EXHIBIT 23.1 Exhibit 23.1 ------------ CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this the registration statement on Form S-3 of our reports dated February 15, 2000 included in SEACOR SMIT Inc.'s Form 10-K for the year ended December 31, 1999 and to all references to our Firm included in this registration statement. /s/Arthur Andersen LLP Arthur Andersen LLP New Orleans, Louisiana, March 9, 2001 -----END PRIVACY-ENHANCED MESSAGE-----