UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
SEACOR Holdings, Inc.
(Name of Issuer)
Common Stock, $.01 par value
(Title of Class of Securities)
81190410
(CUSIP Number)
Deanne Colligan
Madeline Colligan
P. O. Box 278
Cameron, Louisiana 70631
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
August 9, 1996
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject
of this Schedule 13D, and is filing this schedule because of
Rule 13d-1(b)(3) or (4), check the following box [ ].
<PAGE> 2 of 7
CUSIP No. 81190410
1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Deanne Colligan SS ####-##-####
2) Check the Appropriate Box if a Member of a Group
(a) _____
(b) _____
3) SEC Use Only
4) Source of Funds
OO
5) Check Box if Disclosure of Legal Proceedings is
Required pursuant to Items 2(d) or 2(e)
6) Citizenship or Place of Organization - United States
Number of 7) Sole Voting Power 23,799
Shares
Beneficially
Owned by 8) Shared Voting Power 866,649
Each
Reporting
Person
With 9) Sole Dispositive Power 23,799
10) Shared Dispositive Power 866,649
11) Aggregate Amount Beneficially Owned by each
Reporting Person 890,448
12) Check if the Aggregate Amount in Row (11)
Excludes Certain Shares
13) Percent of Class Represented by Amount
in Row 11 6.8%
14) Type of Reporting Person (See Instructions) IN, OO (Trustee)
<PAGE> 3 of 7
CUSIP No. 81190410
15) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Madeline Colligan SS ####-##-####
16) Check the Appropriate Box if a Member of a Group
(a) _____
(b) _____
17) SEC Use Only
18) Source of Funds
OO
19) Check Box if Disclosure of Legal Proceedings is
Required pursuant to Items 2(d) or 2(e)
20) Citizenship or Place of Organization - United States
Number of 21) Sole Voting Power 23,799
Shares
Beneficially
Owned by 22) Shared Voting Power 866,649
Each
Reporting
Person
With 23) Sole Dispositive Power 23,799
24) Shared Dispositive Power 866,649
25) Aggregate Amount Beneficially Owned by each
Reporting Person 890,448
26) Check if the Aggregate Amount in Row (11)
Excludes Certain Shares
27) Percent of Class Represented by Amount
in Row 11 6.8%
28) Type of Reporting Person (See Instructions) IN, OO (Trustee)
<PAGE> 4 of 7
Item 1. Security and Issuer.
Title of Class of Securities:
Common Stock, $.01 par value per share
Name and Address of Issuer's Principal Executive Office:
SEACOR Holdings, Inc.
11200 Westheimer, Suite 850
Houston, Texas 77042
Item 2. Identity and Background.
Names of Reporting Persons:
Deanne Colligan
Madeline Colligan
Address:
P. O. Box 278
Cameron, Louisiana 70631
Employment Information:
Ms. Deanne Colligan is a registered pharmacist for
and part-owner of the Cameron Drug Store located
at 424 Marshal Street, Cameron, Louisiana 70631.
Ms. Madeline Colligan is an elementary school
teacher employed by the Cameron Parish School
Board, located at 246 Dewey Street, Cameron,
Louisiana 70631.
Neither of the Reporting Persons has been
convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) during
the past five years.
Neither of the Reporting Persons has been a party
to a civil proceeding of a judicial or
administrative body of competent jurisdiction and
as a result of such proceeding was or is subject
to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating
activities subject to, federal or state securities
laws or finding any violations with respect to
such laws during the past five years.
Citizenship:
United States of America
Item 3. Source and Amount of Funds or Other Consideration.
Beneficial ownership of the shares of common stock,
$0.01 par value per share of SEACOR Holdings, Inc.
("CKOR"), reported herein, was acquired by the
Reporting Persons on August 9, 1996, pursuant to CKOR's
acquisition of McCall Enterprises, Inc. ("McCall") and
related entities (the "Acquisition"). The following
list sets forth for each Reporting Person and for each
of the three trusts for which the Reporting Persons
serve as co-trustees (the "Trusts"), the number of
shares of each McCall entity exchanged for CKOR common
stock in the Acquisition:
Shares of CKOR
Common Stock
Deanne Colligan
7.54 shares of Cameron Boat Rentals, Inc.
10.00 shares of Cameron Crews, Inc. 23,799
Madeline Colligan
7.54 shares of Cameron Boat Rentals, Inc.
10.00 shares of Cameron Crews, Inc. 23,799
HAM Trust
166.67 shares of McCall Enterprises, Inc.
6.00 shares of Cameron Boat Rentals, Inc.
2.00 shares of Cameron Crews, Inc. 288,883
PDM Trust
166.67 shares of McCall Enterprises, Inc.
6.00 shares of Cameron Boat Rentals, Inc.
2.00 shares of Cameron Crews, Inc. 288,883
JKM Trust
166.67 shares of McCall Enterprises, Inc.
6.00 shares of Cameron Boat Rentals, Inc.
2.00 shares of Cameron Crews, Inc. 288,883
Item 4. Purpose of Transaction.
In the Acquisition, the Reporting Persons and the
Trusts acquired the CKOR common stock reported
herein as consideration for the shares of common
stock held by the Reporting Persons and the Trusts
in McCall and its related entities. The Reporting
Persons have no plans or proposals which relate to
or that would result in any of the actions
specified in clauses (a) through (j) of Item 4 of
Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) (b) As of the date hereof, the Reporting Persons,
in the aggregate, beneficially own 913,247 shares of CKOR
common stock, approximately 7.0% of the shares of the CKOR
common stock believed to be outstanding. Deanne Colligan
has sole power to vote and direct the disposition of 23,799
shares held in her name and shared power to vote and direct
the disposition of 866,649 shares held in equal amounts by
each of the Trusts. Madeline Colligan has sole power to
vote and direct the disposition of 23,799 shares held in her
name and shared power to vote and direct the disposition of
866,649 shares held in equal amounts by each of the Trusts.
(c) See Item 3 of this Schedule 13D.
(d) Other party with right to receive or direct
receipt of dividends or proceeds:
Dividends and proceeds from the sale of the common
stock held by the Trusts will be received by and
be property of the Trusts.
(e) Date Reporting Person ceased to beneficially own
more than 5% of shares:
Not Applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the
Issuer.
Each of the Reporting Persons and each of the
Trusts has entered into an Investment and
Registration Rights Agreement, dated May 31, 1996,
with CKOR granting them certain registration
rights with regard to the CKOR common stock. In
addition, approximately ten percent of the shares
of CKOR common stock held by the Reporting Persons
and the Trusts is subject to the terms of various
escrow agreements entered into in connection with
the Acquisition to secure certain indemnification
obligations that the Reporting Persons and the
Trusts owe to CKOR with respect to the
Acquisition. These agreements provide for the
escrow of these shares for a minimum of three
years, during which time the Reporting Persons
will have the ability to vote, but not to dispose
of, such shares.
Item 7. Material to be Filed as Exhibits.
A copy of a written agreement relating to the
filing of a joint statement as required by Rule
13d-1(f) under the Securities Exchange Act of 1934
is attached hereto as Exhibit A.
Investment and Registration Rights Agreement among
CKOR and, among others, the Reporting Persons and
the Trusts, dated May 31, 1996, incorporated
herein by reference to Exhibit 10.8 to CKOR's
Current Report on Form 8-K dated May 31, 1996.
Escrow Agreement, dated as of May 31, 1996, by and
among CKOR, Norman McCall, as representative of,
and all of the stockholders of Cameron Boat
Rentals, Inc. and the Bank of Montreal Trust
Company, as escrow agent.
Escrow Agreement, dated as of May 31, 1996, by and
among CKOR, Norman McCall, as representative of,
and all of the stockholders of McCall and The Bank
of Montreal Trust Company, as escrow agent.
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set
forth in this statement is true, complete and correct.
Date: September 27, 1996
/s/ Deanne Colligan
_____________________________
Deanne Colligan, Individually
and as Trustee
/s/ Madeline Colligan
_______________________________
Madeline Colligan, Individually
and as Trustee
<PAGE> 5 of 7
EXHIBIT A
AGREEMENT
The undersigned agree that this Schedule 13D dated
September 27, 1996 relating to the shares of common
stock, $0.01 par value per share, of SEACOR Holdings, Inc.,
to which this Agreement is attached as Exhibit A, shall be
filed on behalf of the undersigned.
/s/ Deanne Colligan
____________________
Deanne Colligan
/s/ Madeline Colligan
_____________________
Madeline Colligan
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement") is made and
entered into as of the 31st day of May, 1996, among SEACOR
Holdings, Inc., a Delaware corporation ("SEACOR"), Norman
McCall, as representative (in such capacity and his
successor(s) being referred to as the "Representative"), all
of the stockholders (collectively, the "Stockholders") of
McCall Enterprises, Inc., a Louisiana corporation
("McCall"), and Bank of Montreal Trust Company, a trust
company duly organized and validly existing under the laws
of the State of New York, as escrow agent (the "Escrow
Agent").
RECITALS:
A. SEACOR, SEACOR Enterprises, Inc. ("Merger
Sub") and McCall have entered into an Agreement and Plan of
Merger, dated as of May 31, 1996 (the "Merger Agreement"),
pursuant to which Merger Sub will be merged with and into
McCall.
B. In satisfaction of a condition precedent to
SEACOR's obligations under the Merger Agreement, the
Stockholders, the Representative and SEACOR have entered
into an Indemnification Agreement dated the date hereof (the
"Indemnification Agreement").
C. Pursuant to Section 6 of the Indemnification
Agreement, the parties have agreed to enter into this
Agreement and, pursuant to Section 9 of the Indemnification
Agreement, the Representative was appointed to act as
representative of the Stockholders as provided in this
Agreement.
D. The Escrow Agent is willing to act as escrow
agent under this Agreement.
In consideration of the foregoing, and the
representations, warranties, covenants and agreements set
forth in this Agreement, the parties hereto, intending to be
legally bound, agree as follows:
1. Definitions. Capitalized terms used but not
otherwise defined in this Agreement shall have the meanings
ascribed to such terms in the Indemnification Agreement and
the Merger Agreement.
2. Establishment of Escrow Fund. Each
Stockholder hereby (a) directs SEACOR to deliver to the
Escrow Agent, on behalf of such Stockholder, a number of
shares of SEACOR Common Stock equal to ten percent (10%) of
the number of shares of SEACOR Common Stock that would
otherwise be delivered directly to such Stockholder as
Merger Consideration (the "Escrow Shares") and (b) agrees to
execute and deliver to the Escrow Agent, promptly following
the delivery of such shares of SEACOR Common Stock to the
Escrow Agent by SEACOR, a stock power duly executed in blank
by such Stockholder with respect to such Escrow Shares. The
Escrow Shares shall be held by the Escrow Agent in trust
subject to the terms and conditions hereinafter set forth.
If the Escrow Agent should receive any cash or other
property with respect to the Escrow Shares, the Escrow Agent
shall invest and reinvest such cash and the income therefrom
in the Lehman Fund, substantially all of which is invested
in direct obligations of the United States of America or
obligations the principal of and the interest on which are
unconditionally guaranteed by the United States of America,
and shall hold such other property in trust subject to the
terms and conditions hereinafter set forth (together with
the Escrow Shares, the "Escrow Fund"). The parties
acknowledge that the Escrow Agent shall not be responsible
for any diminution in the Escrow Fund due to losses
resulting from investments.
3. Claims Against the Escrow Fund.
(a) The Escrow Shares shall secure the
obligations of the Stockholders to the Indemnified Parties
pursuant to Section 2 of the Indemnification Agreement and
in accordance with the terms of this Agreement.
(b) In the event that a claim for indemnity
results from the final determination of a settlement or
judgment for which a Stockholder is responsible under
Section 2(e)(ii) of the Indemnification Agreement, SEACOR
and the Representative shall send the Escrow Agent and the
Stockholder notice of such fact in a writing signed by both
SEACOR and the Representative. Such notice shall state the
name of the Indemnified Party, the amount of Losses arising
from the indemnity claim to which the Indemnified Party is
entitled, the names of the Stockholders from whom indemnity
is sought and the number of shares of SEACOR Common Stock
that each such Stockholder would be required to transfer to
the Indemnified Party to satisfy its proportionate share of
such Losses. If at any time after the tenth business day
following the delivery of such notice, SEACOR advises the
Escrow Agent in writing that any such Stockholder has not
delivered to the Indemnified Party an amount of cash
sufficient to satisfy its share of such Losses, the Escrow
Agent shall promptly deliver to SEACOR such number of Escrow
Shares sufficient to satisfy such Stockholder's share of
such Losses together with the stock powers executed by such
Stockholder.
(c) In the event that SEACOR shall claim a right
to payment pursuant to Section 2(e)(iii) of the
Indemnification Agreement, SEACOR shall send written notice
of such claim to the Escrow Agent and the Representative.
As promptly as possible after SEACOR has given such notice,
SEACOR and the Representative shall establish the merits of
such claim and amount of Losses for which SEACOR is entitled
to indemnification as a result thereof in accordance with
the terms of the Indemnification Agreement and, upon final
determination of the merits of such claim and amount of such
Losses and the number of shares to be transferred if the
claim is not satisfied in cash as herein provided (which
determination shall be by mutual agreement or arbitration),
shall notify the Escrow Agent and the Stockholders from whom
indemnity is sought (either by means of a certified copy of
the arbitration decision or a written instrument executed by
SEACOR and the Representative) of the terms of such
determination (such notice is hereinafter referred to as a
"Claims Notice"). After such Claims Notice has been
delivered to the Escrow Agent, pursuant to the
Indemnification Agreement, each such Stockholder shall,
within ten business days after receipt of a Claims Notice,
deliver to the Indemnified Party an amount of cash in
immediately available funds sufficient to satisfy its pro
rata share of any Losses to which the Indemnified Party is
entitled in accordance with the Claims Notice. If after
such tenth business day, SEACOR advises the Escrow Agent in
writing that any such Stockholder has not satisfied its pro
rata share of such Losses, the Escrow Agent shall promptly
deliver to SEACOR such number of the Escrow Shares
sufficient to satisfy such Stockholder's pro rata share of
such Losses, together with the stock powers executed by such
Stockholder.
(d) For purposes of this Agreement, the Escrow
Shares shall be valued in the manner set forth in the final
paragraph of Section 2 of the Indemnification Agreement.
4. Termination of Escrow Fund. The escrow
provided for hereunder shall terminate completely upon the
later to occur of (a) the third anniversary of the Closing
Date and (b) the payment or other final resolution of all
claims for indemnity asserted under the Indemnification
Agreement by any Indemnified Party prior to the third
anniversary of the Closing Date.
5. Payment of Escrow Fund. Upon termination of
the escrow, the Escrow Agent shall pay over to the
Representative the balance, if any, of the Escrow Shares and
any cash or other property then held by the Escrow Agent,
for disbursement by the Representative to the Stockholders
in accordance with their respective interests as set forth
on Exhibit A to this Agreement. In the event that any
claims for indemnity under the Indemnification Agreement are
pending on the third anniversary of the Closing Date, the
Escrow Agent shall pay over to the Representative, for
disbursement to the Stockholders, all property held in the
Escrow Fund in excess of an amount of Escrow Shares, cash or
other property having a value equal to the aggregate amount
of Losses for which all Indemnified Parties have pending
claims.
6. Escrow Agent.
(a) Duties. The Escrow Agent shall have no
liability or obligation with respect to the Escrow Fund
except for Escrow Agent's willful misconduct or gross
negligence. The Escrow Agent's sole responsibility shall be
for the safekeeping, investment, and disbursement of the
Escrow Fund in accordance with the terms of this Escrow
Agreement. The Escrow Agent shall have no implied duties or
obligations and shall not be charged with knowledge or
notice of any fact or circumstance not specifically set
forth herein. The Escrow Agent may rely upon any instrument,
not only as to its due execution, validity and
effectiveness, but also as to the truth and accuracy of any
information contained therein, which Escrow Agent shall in
good faith believe to be genuine, to have been signed or
presented by the person or parties purporting to sign the
same and to conform to the provisions of this Escrow
Agreement. In no event shall the Escrow Agent be liable for
incidental, indirect, special, consequential or punitive
damages. The Escrow Agent shall not be obligated to take any
legal action or commence any proceeding in connection with
the Escrow Fund, any account in which the Escrow Fund is
deposited, this Escrow Agreement or the Indemnification
Agreement, or to appear in, prosecute or defend any such
legal action or proceedings. The Escrow Agent may consult
legal counsel selected by it in the event of any dispute or
question as to the construction of any of the provisions
hereof or of any other agreement or of its duties hereunder,
and shall incur no liability and shall be fully protected
from any liability whatsoever in acting in accordance with
the opinion or instruction of such counsel. SEACOR and the
Stockholders, jointly and severally, shall promptly pay,
upon demand, the reasonable fees and expenses of any such
counsel.
(b) Indemnification. From and at all times after
the date of this Escrow Agreement, SEACOR and the
Stockholders, jointly and severally, shall, to the fullest
extent permitted by law and to the extent provided herein,
indemnify and hold harmless the Escrow Agent and each
director, officer, employee, attorney, agent and affiliate
of the Escrow Agent (collectively, the "Indemnified
Parties") against any and all actions, claims (whether or
not valid), losses, damages, liabilities, costs and expenses
of any kind or nature whatsoever (including without
limitation reasonable attorneys' fees, costs and expenses)
incurred by or asserted against any of the Indemnified
Parties from and after the date hereof, whether direct,
indirect or consequential, as a result of or arising from or
in any way relating to any claim, demand, suit, action or
proceeding (including any inquiry or investigation) by any
person, whether threatened or initiated, asserting a claim
for any legal or equitable remedy against any person under
any statute or regulation, including, but not limited to,
any federal or state securities laws, or under any common
law or equitable cause or otherwise, arising from or in
connection with the negotiation, preparation, execution,
performance or failure of performance of this Escrow
Agreement or any transactions contemplated herein, whether
or not any such Indemnified Party is a party to any such
action, proceeding, suit or the target of any such inquiry
or investigation; provided, however, that no Indemnified
Party shall have the right to be indemnified hereunder for
any liability finally determined, subject to no further
appeal, to have resulted solely from the gross negligence or
willful misconduct of such Indemnified Party. If any such
action or claim shall be brought or asserted against any
Indemnified Party, such Indemnified Party shall promptly
notify SEACOR and the Stockholders in writing, and SEACOR
and the Stockholders shall assume the defense thereof,
including the employment of counsel and the payment of all
expenses. Such Indemnified Party shall, in its sole
discretion, have the right to employ separate counsel in any
such action and to participate in the defense thereof, and
the fees and expenses of such counsel shall be paid by such
Indemnified Party unless (a) SEACOR and the Stockholders
agree to pay such fees and expenses, or (b) SEACOR or the
Stockholders shall fail to assume the defense of such action
or proceeding or shall fail, in the reasonable discretion of
such Indemnified Party, to employ counsel satisfactory to
the Indemnified Party in any such action or proceeding, or
(c) the named parties to any such action or proceeding
(including any impleaded parties) include both Indemnified
Party and SEACOR or the Stockholders, and Indemnified Party
shall have been advised by counsel that there may be one or
more legal defenses available to it which are different from
or additional to those available to SEACOR or the
Stockholders. All such fees and expenses payable by SEACOR
or the Stockholders pursuant to the foregoing sentence shall
be paid from time to time as incurred, both in advance of
and after the final disposition of such action or claim.
All of the foregoing losses, damages, costs and expenses of
the Indemnified Parties shall be payable by SEACOR and the
Stockholders, jointly and severally, upon demand by such
Indemnified Party. The obligations of SEACOR and the
Stockholders under this Section 6(b) shall survive any
termination of this Escrow Agreement and the resignation or
removal of the Escrow Agent. The costs and expenses of
enforcing this right of indemnification shall be paid by
SEACOR and the Stockholders.
The parties agree that neither the payment by
SEACOR or the Stockholders of any claim by the Escrow Agent
for indemnification hereunder nor the disbursement of any
amounts to the Escrow Agent from the Escrow Fund in respect
of a claim by the Escrow Agent for indemnification shall
impair, limit, modify, or affect, as between SEACOR and the
Stockholders, the respective rights and obligations of the
Stockholders, on the one hand, and SEACOR, on the other
hand, under the Indemnification Agreement.
(c) Disputes. If, at any time, there shall exist
any dispute between SEACOR, the Stockholders or the
Representative with respect to the holding or disposition of
any portion of the Escrow Fund or any other obligations of
the Escrow Agent hereunder, or if at any time the Escrow
Agent is unable to determine, to the Escrow Agent's sole
satisfaction, the proper disposition of any portion of the
Escrow Fund or the Escrow Agent's proper actions with
respect to its obligations hereunder, or if the
Representative has not within 30 days of the furnishing by
the Escrow Agent of a notice of resignation pursuant to
Section 6(d) hereof, appointed a successor the Escrow Agent
to act hereunder, then the Escrow Agent may, in its sole
discretion, take either or both of the following actions:
(i) suspend the performance of any of its
obligations under this Escrow Agreement until such
dispute or uncertainty shall be resolved to the
sole satisfaction of the Escrow Agent or until a
successor Escrow Agent shall have been appointed
(as the case may be); provided, however, that the
Escrow Agent shall continue to invest the Escrow
Funds in accordance with Section 2 hereof; and/or
(ii) petition, at the expense of SEACOR and
the Stockholders (by means of an interpleader
action or any other appropriate method), any court
of competent jurisdiction in New York, New York,
for instructions with respect to such dispute or
uncertainty, and pay into or deposit with such
court all funds and Escrow Shares held by it in
the Escrow Fund for holding and disposition in
accordance with the instructions of such court.
The Escrow Agent shall have no liability to
SEACOR, the Stockholders or the Representative or any other
person with respect to any such suspension of performance or
disbursement into court, specifically including any
liability that may arise, or be alleged to have arisen, out
of or as a result of any delay in the disbursement of funds
held in the Escrow Fund or any delay in or with respect to
any other action required or requested of the Escrow Agent.
(d) Resignation of the Escrow Agent. The Escrow
Agent may resign from the performance of its duties
hereunder at any time by giving thirty (30) days prior
written notice to SEACOR and the Representative or may be
removed, with or without cause, by SEACOR and the
Representative, acting jointly, at any time by the giving of
thirty (30) days prior written notice to the Escrow Agent.
Such resignation or removal shall take effect upon the
appointment of a successor the Escrow Agent as provided
herein. Upon any such notice of resignation or removal,
SEACOR and the Representative jointly shall appoint a
successor Escrow Agent hereunder, which shall be a
commercial bank, trust company or other financial
institution with a combined capital and surplus in excess of
$250,000,000. Upon the acceptance in writing of any
appointment as Escrow Agent hereunder by a successor Escrow
Agent, such successor Escrow Agent shall thereupon succeed
to and become vested with all the rights, powers, privileges
and duties of the retiring Escrow Agent, and the retiring
Escrow Agent shall be discharged from its duties and
obligations under this Escrow Agreement, but shall not be
discharged from any liability for actions taken as Escrow
Agent hereunder prior to such succession. After any retiring
Escrow Agent's resignation or removal, the provisions of
this Escrow Agreement shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was
Escrow Agent under this Escrow Agreement.
(e) Fees. SEACOR and the Stockholders shall
compensate the Escrow Agent for its services hereunder in
accordance with Schedule I attached hereto and, in addition,
shall reimburse the Escrow Agent for all of its reasonable
out-of-pocket expenses, including reasonable attorneys'
fees, travel expenses, telephone and facsimile transmission
costs, postage (including express mail and overnight
delivery charges), copying charges and the like. All of the
compensation and reimbursement obligations set forth in this
Section 6(e) shall be payable upon demand by the Escrow
Agent. The obligations of SEACOR and the Stockholders under
this Section 6(e) shall survive any termination of this
Escrow Agreement and the resignation or removal of the
Escrow Agent. As between SEACOR, on the one hand, and the
Stockholders, on the other, the compensation and
reimbursement payable by SEACOR and the Stockholders under
this Section 6(e) shall be borne equally. As among the
Stockholders, each Stockholder shall bear its pro rata share
of the compensation and reimbursement payable by the Stock-
holders.
If SEACOR and the Stockholders have not paid the
amount of any compensation or reimbursement for out-of-
pocket expenses demanded by the Escrow Agent within a
reasonable time following such demand, the Escrow Agent is
authorized to, and may, disburse to itself from any cash
contained in the Escrow Fund, from time to time, the amount
of any compensation and reimbursement of out-of-pocket
expenses due and payable hereunder (including any amount to
which the Escrow Agent or any Indemnified Party is entitled
to seek indemnification pursuant to Section 6(b) hereof).
The Escrow Agent shall notify SEACOR and the Representative
of any disbursement from the Escrow Fund to itself or any
Indemnified Party in respect of any compensation or
reimbursement hereunder. SEACOR, the Stockholders and the
Representative hereby grant to the Escrow Agent and the
Indemnified Parties a security interest in and lien upon the
Escrow Fund and all funds or other property therein to
secure all obligations hereunder to the Escrow Agent and the
Indemnified Parties, and the Escrow Agent and Indemnified
Parties shall have the right to offset the amount of any
compensation or reimbursement due any of them hereunder
(including any claim for indemnification pursuant to Section
6(b) hereof) against the cash on deposit in the Escrow Fund,
if SEACOR and the Stockholders shall not have paid the
amount of such compensation or reimbursement within a
reasonable time following the Escrow Agent's demand
therefor. If for any reason funds in the Escrow Fund are
insufficient to cover such compensation and reimbursement,
SEACOR and the Stockholders shall promptly pay such amounts
to the Escrow Agent or any Indemnified Party upon receipt of
an itemized invoice.
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:
To SEACOR:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
25th Floor
New York, New York 10019
Attn: Randall Blank
Telecopy No.: (212) 582-8522
1
NYFS11...:\93\73293\0011\1711\EXH4226M.07H
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: David E. Zeltner, Esq.
Telecopy No.: (212) 310-8007
To Stockholders and Representative:
c/o McCall's Boat Rentals, Inc.
P.O. Box 102
432 Marshall Street
Cameron, Louisiana 70631
Attn: Norman McCall
Telecopy No.: (318) 775-7025
with a copy to:
Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
Place St. Charles
201 St. Charles Avenue
51st Floor
New Orleans, Louisiana 70170-5100
Attn: Carl C. Hanemann, Esq.
Telecopy No.: (504) 582-8398
with an additional copy to:
Stockwell, Sievert, Viccellio,
Clements & Shaddock
P.O. Box 2900
Lake Charles, Louisiana 70602
Attn: William E. Shaddock, Esq.
Telecopy No.: (318) 493-7210
To Escrow Agent:
Bank of Montreal Trust Company
77 Water Street
New York, New York 10005
Attn.: Therese Gaballah
Telecopy No.: (212) 701-7684
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.
8. Time of the Essence; Computation of Time.
Time is of the essence for each and every provision of this
Agreement. Whenever the last day for the exercise of any
privilege or the discharge of any duty under this Agreement
shall fall upon a Saturday, Sunday or any date on which
banks in New Orleans, Louisiana or New York, New York are
closed, the party having such privilege or duty may exercise
such privilege or discharge such duty on the next succeeding
day which is a regular business day.
9. Successors in Interest. This Agreement shall
be binding upon and shall inure to the benefit of the
Parties and their permitted successors and assigns, and any
reference to a party shall also be a reference to a
permitted successor or assign.
10. Number; Gender. Whenever the context so
requires, the singular number shall include the plural and
the plural shall include the singular, and the gender of any
pronoun shall include the other genders.
11. Captions. The titles and captions contained
in this Agreement are inserted in this Agreement only as a
matter of convenience and for reference and in no way
define, limit, extend or describe the scope of this
Agreement or the intent of any provision of this Agreement.
Unless otherwise specified to the contrary, all references
to Sections are references to Sections of this Agreement.
12. Amendments. To the extent permitted by law,
this Agreement may be amended by a subsequent writing signed
by all of the Parties.
13. Controlling Law; Integration; Waiver. This
Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York, without
giving effect to the principles thereof relating to the
conflicts or choice of laws. This Agreement supersedes all
negotiations, agreements and understandings among the
Parties with respect to the subject matter of this Agreement
and constitutes the entire agreement among the Parties to
this Agreement with respect to such subject matter. The
failure of any party at any time or times to require
performance of any provisions of this Agreement shall in no
manner affect the right to enforce the same. No waiver by
any party of any conditions, or of the breach of any term,
provision, warranty, representation, agreement or covenant
contained in this Agreement, whether by conduct or
otherwise, in any one or more instances shall be deemed or
construed as a further or continuing waiver of any such
condition or breach of any other term, provision, warranty,
representation, agreement or covenant contained in this
Agreement, the Indemnification Agreement or the Merger
Agreement.
14. No Limitation. The Parties agree that the
rights and remedies of any party under this Agreement shall
not operate to limit any other rights and remedies otherwise
available to any party under the Indemnification Agreement
or the Merger Agreement.
15. Additional Actions and Documents. Each of
the Parties agrees to take or cause to be taken such further
actions, to execute, deliver and file or cause to be
executed, delivered and filed such further documents and
instruments, and to obtain such consents as may be necessary
or as may be reasonably requested in order to effectuate
fully the purposes, terms and conditions of this Agreement.
16. Severability. Any provision of this
Agreement which is prohibited or unenforceable in any
jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability
without invalidating the remaining provisions of this
Agreement, and any such prohibition or unenforceability in
any jurisdiction will not invalidate or render
2
NYFS11...:\93\73293\0011\1711\EXH4226M.07H
unenforceable such provision in any other jurisdiction. To
the extent permitted by law, the Parties waive any provision
of law which renders any such provision prohibited or
unenforceable in any respect.
17. Jurisdiction and Forum; Arbitration. Any
controversy arising under, out of, in connection with, or
relating to, this Agreement, and any amendment hereof, or
the breach hereof or thereof, shall be determined and
settled by arbitration in New York, New York, by an
arbitrator or arbitrators mutually agreed upon by SEACOR and
the Representative or, if SEACOR and the Representative
shall fail or be unable to so agree within ten Business Days
after the written request therefor by SEACOR or the
Representative to the other, such arbitrator or arbitrators
as may be selected in accordance with the rules of the
American Arbitration Association. Any award rendered
therein shall specify the findings of fact of the arbitrator
or arbitrators and the reasons for such award, with
reference to and reliance on relevant law. Any such award
shall be final and binding on each and all of the parties
thereto and their personal representatives, and judgment may
be entered thereon in any court having jurisdiction thereof.
18. Purchase of Securities. The Escrow Agent and
any stockholder, director, officer or employee of the Escrow
Agent may buy, sell, and deal in any of the securities of
SEACOR and become pecuniarily interested in any transaction
in which SEACOR may be interested, and contract and lend
money to SEACOR and otherwise act as fully and freely as
though it were not Escrow Agent under this Agreement.
Nothing herein shall preclude the Escrow Agent from acting
in any other capacity for SEACOR or for any other entity.
IN WITNESS WHEREOF, the Parties hereto have caused
this Agreement to be executed as of the date first above
written.
BANK OF MONTREAL TRUST COMPANY
By:/s/ Therese Gaballah
Name: Therese Gaballah
Title: Vice President
SEACOR HOLDINGS, INC.
By: /s/ Milton Rose
Name: Milton Rose
Title: Vice President
/s/ Norman F. McCall
Norman F. McCall,
as Representative
STOCKHOLDERS
/s/ Norman F. McCall
Norman F. McCall
/s/ Joyce C. McCall
Joyce C. McCall
/s/ Deanne Colligan and Madeline Colligan
Deanne Colligan and Madeline Colligan,
Trustees of the HAM Trust created by
Norman F. McCall and Jacqueline C.
McCall by Act dated December 9, 1980
before Gregory James Klumpp, notary.
/s/ Deanne Colligan and Madeline Colligan
Deanne Colligan and Madeline Colligan,
Trustees of the PDM Trust created by
Norman F. McCall and Jacqueline C.
McCall by Act dated December 9, 1980
before Gregory James Klumpp, notary.
/s/ Deanne Colligan and Madeline Colligan
Deanne Colligan and Madeline Colligan,
Trustees of the JKM Trust created by
Norman F. McCall and Jacqueline C.
McCall by Act dated December 9, 1980
before Gregory James Klumpp, notary.
EXHIBIT A
Proportionate
Stockholders Interest
Norman F. McCall 12.95%
Joyce C. McCall 12.95%
HAM Trust 24.70%
PDM Trust 24.70%
JKM Trust 24.70%
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement") is made and
entered into as of the 31st day of May, 1996, among SEACOR
Holdings, Inc., a Delaware corporation ("SEACOR"), Norman
McCall, as representative (in such capacity and his
successor(s) being referred to as the "Representative"), all
of the stockholders (collectively, the "Stockholders") of
Cameron Boat Rentals, Inc., a Louisiana corporation (the
"Company"), and Bank of Montreal Trust Company, a trust
company duly organized and validly existing under the laws
of the State of New York, as escrow agent (the "Escrow
Agent").
RECITALS:
A. SEACOR, McCall Enterprises, Inc. ("McCall")
and the Stockholders have entered into a Share Exchange
Agreement and Plan of Reorganization relating to the
Company, dated as of May 31, 1996 (the "Exchange
Agreement"), pursuant to which McCall shall acquire the
Company Shares owned by the Stockholders in exchange for
shares of SEACOR Common Stock.
B. In satisfaction of a condition precedent to
SEACOR's obligations under the Exchange Agreement, the
Stockholders, the Representative and SEACOR have entered
into an Indemnification Agreement dated the date hereof (the
"Indemnification Agreement").
C. Pursuant to Section 6 of the Indemnification
Agreement, the parties have agreed to enter into this
Agreement and, pursuant to Section 9 of the Indemnification
Agreement, the Representative was appointed to act as
representative of the Stockholders as provided in this
Agreement.
D. The Escrow Agent is willing to act as escrow
agent under this Agreement.
In consideration of the foregoing, and the
representations, warranties, covenants and agreements set
forth in this Agreement, the parties hereto, intending to be
legally bound, agree as follows:
1. Definitions. Capitalized terms used but not
otherwise defined in this Agreement shall have the meanings
ascribed to such terms in the Indemnification Agreement and
the Exchange Agreement.
2. Establishment of Escrow Fund. Each
Stockholder hereby (a) directs SEACOR to deliver to the
Escrow Agent, on behalf of such Stockholder, a number of
shares of SEACOR Common Stock equal to ten percent (10%) of
the number of shares of SEACOR Common Stock that would
otherwise be delivered directly to such Stockholder as
Exchanged Shares (the "Escrow Shares") and (b) agrees to
execute and deliver to the Escrow Agent, promptly following
the delivery of such shares of SEACOR Common Stock to the
Escrow Agent by SEACOR, a stock power duly executed in blank
by such Stockholder with respect to such Escrow Shares. The
Escrow Shares shall be held by the Escrow Agent in trust
subject to the terms and conditions hereinafter set forth.
If the Escrow Agent should receive any cash or other
property with respect to the Escrow Shares, the Escrow Agent
shall invest and reinvest such cash and the income therefrom
in the Lehman Fund, substantially all of which is invested
in direct obligations of the United States of America or
obligations the principal of and the interest on which are
unconditionally guaranteed by the United States of America,
and shall hold such other property in trust subject to the
terms and conditions hereinafter set forth (together with
the Escrow Shares, the "Escrow Fund"). The parties
acknowledge that the Escrow Agent shall not be responsible
for any diminution in the Escrow Fund due to losses
resulting from investments.
3. Claims Against the Escrow Fund.
(a) The Escrow Shares shall secure the
obligations of the Stockholders to the Indemnified Parties
pursuant to Section 2 of the Indemnification Agreement and
in accordance with the terms of this Agreement.
(b) In the event that a claim for indemnity
results from the final determination of a settlement or
judgment for which a Stockholder is responsible under
Section 2(e)(ii) of the Indemnification Agreement, SEACOR
and the Representative shall send the Escrow Agent and the
Stockholder notice of such fact in a writing signed by both
SEACOR and the Representative. Such notice shall state the
name of the Indemnified Party, the amount of Losses arising
from the indemnity claim to which the Indemnified Party is
entitled, the names of the Stockholders from whom indemnity
is sought and the number of shares of SEACOR Common Stock
that each such Stockholder would be required to transfer to
the Indemnified Party to satisfy its proportionate share of
such Losses. If at any time after the tenth business day
following the delivery of such notice, SEACOR advises the
Escrow Agent in writing that any such Stockholder has not
delivered to the Indemnified Party an amount of cash
sufficient to satisfy its share of such Losses, the Escrow
Agent shall promptly deliver to SEACOR such number of Escrow
Shares sufficient to satisfy such Stockholder's share of
such Losses together with the stock powers executed by such
Stockholder.
(c) In the event that SEACOR shall claim a right
to payment pursuant to Section 2(e)(iii) of the
Indemnification Agreement, SEACOR shall send written notice
of such claim to the Escrow Agent and the Representative.
As promptly as possible after SEACOR has given such notice,
SEACOR and the Representative shall establish the merits of
such claim and amount of Losses for which SEACOR is entitled
to indemnification as a result thereof in accordance with
the terms of the Indemnification Agreement and, upon final
determination of the merits of such claim and amount of such
Losses and the number of shares to be transferred if the
claim is not satisfied in cash as herein provided (which
determination shall be by mutual agreement or arbitration),
shall notify the Escrow Agent and the Stockholders from whom
indemnity is sought (either by means of a certified copy of
the arbitration decision or a written instrument executed by
SEACOR and the Representative) of the terms of such
determination (such notice is hereinafter referred to as a
"Claims Notice"). After such Claims Notice has been
delivered to the Escrow Agent, pursuant to the
Indemnification Agreement, each such Stockholder shall,
within ten business days after receipt of a Claims Notice,
deliver to the Indemnified Party an amount of cash in
immediately available funds sufficient to satisfy its pro
rata share of any Losses to which the Indemnified Party is
entitled in accordance with the Claims Notice. If after
such tenth business day, SEACOR advises the Escrow Agent in
writing that any such Stockholder has not satisfied its pro
rata share of such Losses, the Escrow Agent shall promptly
deliver to SEACOR such number of the Escrow Shares
sufficient to satisfy such Stockholder's pro rata share of
such Losses, together with the stock powers executed by such
Stockholder.
(d) For purposes of this Agreement, the Escrow
Shares shall be valued in the manner set forth in the final
paragraph of Section 2 of the Indemnification Agreement.
4. Termination of Escrow Fund. The escrow
provided for hereunder shall terminate completely upon the
later to occur of (a) the third anniversary of the Closing
Date and (b) the payment or other final resolution of all
claims for indemnity asserted under the Indemnification
Agreement by any Indemnified Party prior to the third
anniversary of the Closing Date.
5. Payment of Escrow Fund. Upon termination of
the escrow, the Escrow Agent shall pay over to the
Representative the balance, if any, of the Escrow Shares and
any cash or other property then held by the Escrow Agent,
for disbursement by the Representative to the Stockholders
in accordance with their respective interests as set forth
on Exhibit A to this Agreement. In the event that any
claims for indemnity under the Indemnification Agreement are
pending on the third anniversary of the Closing Date, the
Escrow Agent shall pay over to the Representative, for
disbursement to the Stockholders, all property held in the
Escrow Fund in excess of an amount of Escrow Shares, cash or
other property having a value equal to the aggregate amount
of Losses for which all Indemnified Parties have pending
claims.
6. Escrow Agent.
(a) Duties. The Escrow Agent shall have no
liability or obligation with respect to the Escrow Fund
except for Escrow Agent's willful misconduct or gross
negligence. The Escrow Agent's sole responsibility shall be
for the safekeeping, investment, and disbursement of the
Escrow Fund in accordance with the terms of this Escrow
Agreement. The Escrow Agent shall have no implied duties or
obligations and shall not be charged with knowledge or
notice of any fact or circumstance not specifically set
forth herein. The Escrow Agent may rely upon any instrument,
not only as to its due execution, validity and
effectiveness, but also as to the truth and accuracy of any
information contained therein, which Escrow Agent shall in
good faith believe to be genuine, to have been signed or
presented by the person or parties purporting to sign the
same and to conform to the provisions of this Escrow
Agreement. In no event shall the Escrow Agent be liable for
incidental, indirect, special, consequential or punitive
damages. The Escrow Agent shall not be obligated to take any
legal action or commence any proceeding in connection with
the Escrow Fund, any account in which the Escrow Fund is
deposited, this Escrow Agreement or the Indemnification
Agreement, or to appear in, prosecute or defend any such
legal action or proceedings. The Escrow Agent may consult
legal counsel selected by it in the event of any dispute or
question as to the construction of any of the provisions
hereof or of any other agreement or of its duties hereunder,
and shall incur no liability and shall be fully protected
from any liability whatsoever in acting in accordance with
the opinion or instruction of such counsel. SEACOR and the
Stockholders, jointly and severally, shall promptly pay,
upon demand, the reasonable fees and expenses of any such
counsel.
(b) Indemnification. From and at all times after
the date of this Escrow Agreement, SEACOR and the
Stockholders, jointly and severally, shall, to the fullest
extent permitted by law and to the extent provided herein,
indemnify and hold harmless the Escrow Agent and each
director, officer, employee, attorney, agent and affiliate
of the Escrow Agent (collectively, the "Indemnified
Parties") against any and all actions, claims (whether or
not valid), losses, damages, liabilities, costs and expenses
of any kind or nature whatsoever (including without
limitation reasonable attorneys' fees, costs and expenses)
incurred by or asserted against any of the Indemnified
Parties from and after the date hereof, whether direct,
indirect or consequential, as a result of or arising from or
in any way relating to any claim, demand, suit, action or
proceeding (including any inquiry or investigation) by any
person, whether threatened or initiated, asserting a claim
for any legal or equitable remedy against any person under
any statute or regulation, including, but not limited to,
any federal or state securities laws, or under any common
law or equitable cause or otherwise, arising from or in
connection with the negotiation, preparation, execution,
performance or failure of performance of this Escrow
Agreement or any transactions contemplated herein, whether
or not any such Indemnified Party is a party to any such
action, proceeding, suit or the target of any such inquiry
or investigation; provided, however, that no Indemnified
Party shall have the right to be indemnified hereunder for
any liability finally determined, subject to no further
appeal, to have resulted solely from the gross negligence or
willful misconduct of such Indemnified Party. If any such
action or claim shall be brought or asserted against any
Indemnified Party, such Indemnified Party shall promptly
notify SEACOR and the Stockholders in writing, and SEACOR
and the Stockholders shall assume the defense thereof,
including the employment of counsel and the payment of all
expenses. Such Indemnified Party shall, in its sole
discretion, have the right to employ separate counsel in any
such action and to participate in the defense thereof, and
the fees and expenses of such counsel shall be paid by such
Indemnified Party unless (a) SEACOR and the Stockholders
agree to pay such fees and expenses, or (b) SEACOR or the
Stockholders shall fail to assume the defense of such action
or proceeding or shall fail, in the reasonable discretion of
such Indemnified Party, to employ counsel satisfactory to
the Indemnified Party in any such action or proceeding, or
(c) the named parties to any such action or proceeding
(including any impleaded parties) include both Indemnified
Party and SEACOR or the Stockholders, and Indemnified Party
shall have been advised by counsel that there may be one or
more legal defenses available to it which are different from
or additional to those available to SEACOR or the
Stockholders. All such fees and expenses payable by SEACOR
or the Stockholders pursuant to the foregoing sentence shall
be paid from time to time as incurred, both in advance of
and after the final disposition of such action or claim.
All of the foregoing losses, damages, costs and expenses of
the Indemnified Parties shall be payable by SEACOR and the
Stockholders, jointly and severally, upon demand by such
Indemnified Party. The obligations of SEACOR and the
Stockholders under this Section 6(b) shall survive any
termination of this Escrow Agreement and the resignation or
removal of the Escrow Agent. The costs and expenses of
enforcing this right of indemnification shall be paid by
SEACOR and the Stockholders.
The parties agree that neither the payment by
SEACOR or the Stockholders of any claim by the Escrow Agent
for indemnification hereunder nor the disbursement of any
amounts to the Escrow Agent from the Escrow Fund in respect
of a claim by the Escrow Agent for indemnification shall
impair, limit, modify, or affect, as between SEACOR and the
Stockholders, the respective rights and obligations of the
Stockholders, on the one hand, and SEACOR, on the other
hand, under the Indemnification Agreement.
(c) Disputes. If, at any time, there shall exist
any dispute between SEACOR, the Stockholders or the
Representative with respect to the holding or disposition of
any portion of the Escrow Fund or any other obligations of
the Escrow Agent hereunder, or if at any time the Escrow
Agent is unable to determine, to the Escrow Agent's sole
satisfaction, the proper disposition of any portion of the
Escrow Fund or the Escrow Agent's proper actions with
respect to its obligations hereunder, or if the
Representative has not within 30 days of the furnishing by
the Escrow Agent of a notice of resignation pursuant to
Section 6(d) hereof, appointed a successor the Escrow Agent
to act hereunder, then the Escrow Agent may, in its sole
discretion, take either or both of the following actions:
(i) suspend the performance of any of its
obligations under this Escrow Agreement until such
dispute or uncertainty shall be resolved to the
sole satisfaction of the Escrow Agent or until a
successor Escrow Agent shall have been appointed
(as the case may be); provided, however, that the
Escrow Agent shall continue to invest the Escrow
Funds in accordance with Section 2 hereof; and/or
(ii) petition, at the expense of SEACOR and
the Stockholders (by means of an interpleader
action or any other appropriate method), any court
of competent jurisdiction in New York, New York,
for instructions with respect to such dispute or
uncertainty, and pay into or deposit with such
court all funds and Escrow Shares held by it in
the Escrow Fund for holding and disposition in
accordance with the instructions of such court.
The Escrow Agent shall have no liability to
SEACOR, the Stockholders or the Representative or any other
person with respect to any such suspension of performance or
disbursement into court, specifically including any
liability that may arise, or be alleged to have arisen, out
of or as a result of any delay in the disbursement of funds
held in the Escrow Fund or any delay in or with respect to
any other action required or requested of the Escrow Agent.
(d) Resignation of the Escrow Agent. The Escrow
Agent may resign from the performance of its duties
hereunder at any time by giving thirty (30) days prior
written notice to SEACOR and the Representative or may be
removed, with or without cause, by SEACOR and the
Representative, acting jointly, at any time by the giving of
thirty (30) days prior written notice to the Escrow Agent.
Such resignation or removal shall take effect upon the
appointment of a successor the Escrow Agent as provided
herein. Upon any such notice of resignation or removal,
SEACOR and the Representative jointly shall appoint a
successor Escrow Agent hereunder, which shall be a
commercial bank, trust company or other financial
institution with a combined capital and surplus in excess of
$250,000,000. Upon the acceptance in writing of any
appointment as Escrow Agent hereunder by a successor Escrow
Agent, such successor Escrow Agent shall thereupon succeed
to and become vested with all the rights, powers, privileges
and duties of the retiring Escrow Agent, and the retiring
Escrow Agent shall be discharged from its duties and
obligations under this Escrow Agreement, but shall not be
discharged from any liability for actions taken as Escrow
Agent hereunder prior to such succession. After any retiring
Escrow Agent's resignation or removal, the provisions of
this Escrow Agreement shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was
Escrow Agent under this Escrow Agreement.
(e) Fees. SEACOR and the Stockholders shall
compensate the Escrow Agent for its services hereunder in
accordance with Schedule I attached hereto and, in addition,
shall reimburse the Escrow Agent for all of its reasonable
out-of-pocket expenses, including reasonable attorneys'
fees, travel expenses, telephone and facsimile transmission
costs, postage (including express mail and overnight
delivery charges), copying charges and the like. All of the
compensation and reimbursement obligations set forth in this
Section 6(e) shall be payable upon demand by the Escrow
Agent. The obligations of SEACOR and the Stockholders under
this Section 6(e) shall survive any termination of this
Escrow Agreement and the resignation or removal of the
Escrow Agent. As between SEACOR, on the one hand, and the
Stockholders, on the other, the compensation and
reimbursement payable by SEACOR and the Stockholders under
this Section 6(e) shall be borne equally. As among the
Stockholders, each Stockholder shall bear its pro rata share
of the compensation and reimbursement payable by the Stock-
holders.
If SEACOR and the Stockholders have not paid the
amount of any compensation or reimbursement for out-of-
pocket expenses demanded by the Escrow Agent within a
reasonable time following such demand, the Escrow Agent is
authorized to, and may, disburse to itself from any cash
contained in the Escrow Fund, from time to time, the amount
of any compensation and reimbursement of out-of-pocket
expenses due and payable hereunder (including any amount to
which the Escrow Agent or any Indemnified Party is entitled
to seek indemnification pursuant to Section 6(b) hereof).
The Escrow Agent shall notify SEACOR and the Representative
of any disbursement from the Escrow Fund to itself or any
Indemnified Party in respect of any compensation or
reimbursement hereunder. SEACOR, the Stockholders and the
Representative hereby grant to the Escrow Agent and the
Indemnified Parties a security interest in and lien upon the
Escrow Fund and all funds or other property therein to
secure all obligations hereunder to the Escrow Agent and the
Indemnified Parties, and the Escrow Agent and Indemnified
Parties shall have the right to offset the amount of any
compensation or reimbursement due any of them hereunder
(including any claim for indemnification pursuant to Section
6(b) hereof) against the cash on deposit in the Escrow Fund,
if SEACOR and the Stockholders shall not have paid the
amount of such compensation or reimbursement within a
reasonable time following the Escrow Agent's demand
therefor. If for any reason funds in the Escrow Fund are
insufficient to cover such compensation and reimbursement,
SEACOR and the Stockholders shall promptly pay such amounts
to the Escrow Agent or any Indemnified Party upon receipt of
an itemized invoice.
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:
To SEACOR:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
25th Floor
New York, New York 10019
Attn: Randall Blank
Telecopy No.: (212) 582-8522
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: David E. Zeltner, Esq.
Telecopy No.: (212) 310-8007
To Stockholders and Representative:
c/o McCall's Boat Rentals, Inc.
P.O. Box 102
432 Marshall Street
Cameron, Louisiana 70631
Attn: Norman McCall
Telecopy No.: (318) 775-7025
with a copy to:
Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
Place St. Charles
201 St. Charles Avenue
51st Floor
New Orleans, Louisiana 70170-5100
Attn: Carl C. Hanemann, Esq.
Telecopy No.: (504) 582-8398
with an additional copy to:
Stockwell, Sievert, Viccellio,
Clements & Shaddock
P.O. Box 2900
Lake Charles, Louisiana 70602
Attn: William E. Shaddock, Esq.
Telecopy No.: (318) 493-7210
To Escrow Agent:
Bank of Montreal Trust Company
77 Water Street
New York, New York 10005
Attn.: Therese Gaballah
Telecopy No.: (212) 701-7684
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.
8. Time of the Essence; Computation of Time.
Time is of the essence for each and every provision of this
Agreement. Whenever the last day for the exercise of any
privilege or the discharge of any duty under this Agreement
shall fall upon a Saturday, Sunday or any date on which
banks in New Orleans, Louisiana or New York, New York are
closed, the party having such privilege or duty may exercise
such privilege or discharge such duty on the next succeeding
day which is a regular business day.
9. Successors in Interest. This Agreement shall
be binding upon and shall inure to the benefit of the
Parties and their permitted successors and assigns, and any
reference to a party shall also be a reference to a
permitted successor or assign.
10. Number; Gender. Whenever the context so
requires, the singular number shall include the plural and
the plural shall include the singular, and the gender of any
pronoun shall include the other genders.
11. Captions. The titles and captions contained
in this Agreement are inserted in this Agreement only as a
matter of convenience and for reference and in no way
define, limit, extend or describe the scope of this
Agreement or the intent of any provision of this Agreement.
Unless otherwise specified to the contrary, all references
to Sections are references to Sections of this Agreement.
12. Amendments. To the extent permitted by law,
this Agreement may be amended by a subsequent writing signed
by all of the Parties.
13. Controlling Law; Integration; Waiver. This
Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York, without
giving effect to the principles thereof relating to the
conflicts or choice of laws. This Agreement supersedes all
negotiations, agreements and understandings among the
Parties with respect to the subject matter of this Agreement
and constitutes the entire agreement among the Parties to
this Agreement with respect to such subject matter. The
failure of any party at any time or times to require
performance of any provisions of this Agreement shall in no
manner affect the right to enforce the same. No waiver by
any party of any conditions, or of the breach of any term,
provision, warranty, representation, agreement or covenant
contained in this Agreement, whether by conduct or
otherwise, in any one or more instances shall be deemed or
construed as a further or continuing waiver of any such
condition or breach of any other term, provision, warranty,
representation, agreement or covenant contained in this
Agreement, the Indemnification Agreement or the Exchange
Agreement.
14. No Limitation. The Parties agree that the
rights and remedies of any party under this Agreement shall
not operate to limit any other rights and remedies otherwise
available to any party under the Indemnification Agreement
or the Exchange Agreement.
15. Additional Actions and Documents. Each of
the Parties agrees to take or cause to be taken such further
actions, to execute, deliver and file or cause to be
executed, delivered and filed such further documents and
instruments, and to obtain such consents as may be necessary
or as may be reasonably requested in order to effectuate
fully the purposes, terms and conditions of this Agreement.
16. Severability. Any provision of this
Agreement which is prohibited or unenforceable in any
jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability
without invalidating the remaining provisions of this
Agreement, and any such prohibition or unenforceability in
any jurisdiction will not invalidate or render unenforceable
such provision in any other jurisdiction. To the extent
permitted by law, the Parties waive any provision of law
which renders any such provision prohibited or unenforceable
in any respect.
17. Jurisdiction and Forum; Arbitration. Any
controversy arising under, out of, in connection with, or
relating to, this Agreement, and any amendment hereof, or
the breach hereof or thereof, shall be determined and
settled by arbitration in New York, New York, by an
arbitrator or arbitrators mutually agreed upon by SEACOR and
the Representative or, if SEACOR and the Representative
shall fail or be unable to so agree within ten Business Days
after the written request therefor by SEACOR or the
Representative to the other, such arbitrator or arbitrators
as may be selected in accordance with the rules of the
American Arbitration Association. Any award rendered
therein shall specify the findings of fact of the arbitrator
or arbitrators and the reasons for such award, with
reference to and reliance on relevant law. Any such award
shall be final and binding on each and all of the parties
thereto and their personal representatives, and judgment may
be entered thereon in any court having jurisdiction thereof.
18. Purchase of Securities. The Escrow Agent and
any stockholder, director, officer or employee of the Escrow
Agent may buy, sell, and deal in any of the securities of
SEACOR and become pecuniarily interested in any transaction
in which SEACOR may be interested, and contract and lend
money to SEACOR and otherwise act as fully and freely as
though it were not Escrow Agent under this Agreement.
Nothing herein shall preclude the Escrow Agent from acting
in any other capacity for SEACOR or for any other entity.
IN WITNESS WHEREOF, the Parties hereto have caused
this Agreement to be executed as of the date first above
written.
BANK OF MONTREAL TRUST COMPANY
By:/s/ Therese Gaballah
Name: Therese Gaballah
Title: Vice President
SEACOR HOLDINGS, INC.
By: /s/ Milton Rose
Name: Milton Rose
Title: Vice President
/s/ Norman F. McCall
Norman F. McCall,
as Representative
STOCKHOLDERS
/s/ Deanne Colligan and /s/ Madeline Colligan
Deanne Colligan and Madeline Colligan,
Trustees of the HAM Trust created by
Norman F. McCall and Jacqueline C.
McCall by Act dated December 9, 1980
before Gregory James Klumpp, notary.
/s/ Deanne Colligan and /s/ Madeline Colligan
Deanne Colligan and Madeline Colligan,
Trustees of the PDM Trust created by
Norman F. McCall and Jacqueline C.
McCall by Act dated December 9, 1980
before Gregory James Klumpp, notary.
/s/ Deanne Colligan and /s/ Madeline Colligan
Deanne Colligan and Madeline Colligan,
Trustees of the JKM Trust created by
Norman F. McCall and Jacqueline C.
McCall by Act dated December 9, 1980
before Gregory James Klumpp, notary.
/s/ Gertrude Colligan
Gertrude Colligan, Individually and as
Usufructuary.
/s/ James A. Colligan
James A. Colligan
/s/ Nell Colligan
Nell Colligan
/s/ Madeline Colligan
Madeline Colligan
/s/ Deanne Colligan
Deanne Colligan
<PAGE>
EXHIBIT A
Proportionate
Stockholders Interest
HAM Trust 10.78%
PDM Trust 10.78%
JKM Trust 10.78%
Gertrude Colligan, Individually and
as Usufructuary. 27.07%
Madeline Colligan 13.53%
Deanne Colligan 13.53%
James A. Colligan 13.53%
Nell Colligan
