1
Exhibit 23.1
1,500,000 Shares
GulfMark Offshore, Inc.
Common Stock
UNDERWRITING AGREEMENT
March 12, 2002
▇▇▇▇▇▇ BROTHERS INC.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
CIBC WORLD MARKETS CORP.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
GulfMark Offshore, Inc., a Delaware corporation (the "Company"),
proposes to sell 1,500,000 shares (the "Firm Stock") of the Company's Common
Stock, par value $0.01 per share (the "Common Stock").
It is understood that, subject to the conditions hereinafter stated, all
of the Firm Stock will be sold to the several Underwriters named in Schedule
1 hereto (collectively, the "Underwriters"). In addition, the Company
proposes to grant to the Underwriters an option to purchase up to an
additional 225,000 shares of the Common Stock on the terms and for the
purposes set forth in Section 3 (the "Option Stock"). The Firm Stock and
the Option Stock, if purchased, are hereinafter collectively called the
"Stock." This is to confirm the agreement concerning the purchase of the
Stock from the Company by the Underwriters.
Section 1. Representations, Warranties and Agreements of the Company.
The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File No. 333-44696) with
respect to the Stock has (i) been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder, (ii) been
filed with the Commission under the Securities Act and (iii) become effective
under the Securities Act. Copies of such registration statement and each of
the amendments thereto, if any, have been delivered by the Company to you.
As used in this Agreement, "Effective Time" means the date and the time as
of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission;
"Effective Date" means the date of the Effective Time; "Preliminary
Prospectus" means each prospectus included in such registration statement,
or amendments thereof, if any, before it became effective under the
Securities Act and any prospectus filed with the Commission by the Company
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with the consent of the Underwriters pursuant to Rule 424(a) of the Rules and
Regulations under the Securities and Exchange Act of 1934, as amended (the
"Exchange Act"); "Registration Statement" means such registration
statement, as amended at the Effective Time, including all information
contained in the final prospectus filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations and deemed to be a part of the
registration statement as of the Effective Time pursuant to Rule 430A of the
Rules and Regulations and any new registration statement registering
additional securities pursuant to Rule 462(b) of the Rules and Regulations;
and "Prospectus" means the final prospectus, as first filed with the
Commission pursuant to paragraph (2) or (5) of Rule 424(b) of the Rules and
Regulations under the Exchange Act. Reference made herein to any Preliminary
Prospectus or to the Prospectus shall be deemed to refer to and include any
documents incorporated by reference therein pursuant to item 12 of Form S-3
under the Securities Act, as of the date of such Preliminary Prospectus or
the Prospectus, as the case may be, and any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any document filed under the Exchange Act after the date
of such Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in the Preliminary Prospectus or the Prospectus, as
the case may be; and any reference to any amendment to the Registration
Statement shall be deemed to include any periodic report of the Company filed
with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
after the Effective Time that is incorporated by reference in the
Registration Statement. The Commission has not issued any order preventing
or suspending the use of any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission,
as the case may be, conform in all respects to the requirements of the
Securities Act and the Rules and Regulations and do not and will not, as of
the applicable effective date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the Prospectus
and any amendment or supplement thereto) contain 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 not misleading; provided that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company by or on behalf
of any Underwriter specifically for inclusion therein.
(c) The documents incorporated by reference in the Prospectus, when they
were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the Rules and Regulations, and none of
such documents contained an untrue statement of material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents are filed
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with the Commission, will conform in all material respects to the
requirements of the Exchange Act and the Rules and Regulations and will not
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 not misleading.
(d) The Company and each of its subsidiaries (as defined in Section 15)
have been duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of incorporation,
are duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires such
qualification (except where the failure to so qualify or be in good standing
as a foreign corporation would not have a material adverse effect on the
consolidated financial position, stockholders' equity, results of operation,
business or prospects of the Company and its subsidiaries), and have all
power and authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged; and none of the
subsidiaries of the Company other than GulfMark North Sea, Ltd., a
corporation organized under the laws of England, Gulf Offshore N.S. Ltd., a
corporation organized under the laws of England, Gulf Offshore Marine
International, Inc. a Panamanian corporation, Gulf Offshore Norge AS, a
Norwegian limited liability company, Gulfmark Norge AS, a Norwegian limited
liability company, Sea Truck Shipping AS, a Norwegian limited liability
company and Sea Truck Rederi AS, a Norwegian limited liability company
(collectively, the "Significant Subsidiaries") is a "significant
subsidiary", as such term is defined in Rule 405 of the Rules and
Regulations under the Exchange Act.
(e) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and non-
assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each subsidiary
of the Company have been duly and validly authorized and issued and are fully
paid and non-assessable and (except for directors' qualifying shares) are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(f) The shares of the Stock to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when issued
and delivered against payment therefor in accordance with this Agreement,
will be duly and validly issued, fully paid and non-assessable; and the Stock
will conform to the description thereof contained in the Prospectus.
(g) This Agreement has been duly authorized, executed and delivered by
the Company.
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(h) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such actions result
in any violation of the provisions of the charter or by-laws of the Company
or any of its subsidiaries or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their properties or assets; and except
for the registration of the Stock under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection
with the purchase and distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby other than those that
have been obtained.
(i) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company
to file a registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered pursuant
to the Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company under the Securities
Act.
(j) The Company has not sold or issued any shares of Common Stock during
the six-month period preceding the date of the Prospectus, including any
sales pursuant to Rule 144A under, or Regulations D or S of, the Securities
Act other than shares issued pursuant to employee benefit plans, qualified
stock options plans or other employee compensation plans or pursuant to
outstanding options, rights or warrants.
(k) Neither the Company nor any of its subsidiaries has sustained, since
the date of the latest audited financial statements included in the
Prospectus, any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since
such date, there has not been any change in the vessel fleet, capital stock
or long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, consolidated
financial position, stockholders' equity, results of operations, business or
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prospects of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus.
(l) The financial statements (including the related notes and supporting
schedules) filed as part of the Registration Statement or included in the
Prospectus present fairly the financial condition and results of operations
of the entities purported to be shown thereby, at the dates and for the
periods indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved.
(m) Ernst & Young, LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP who have certified
certain financial statements of the Company, whose reports are incorporated
by reference in the Prospectus and who have delivered one of the initial
letters referred to in Section 7(f) hereof, are independent public
accountants as required by the Securities Act and the Rules and Regulations.
(n) The Company and each of its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to all
personal property (including vessels) owned by them, in each case free and
clear of all liens, encumbrances and defects, except (i) for assets pledged
as security under that certain Loan Agreement - Floating Rate Loan Facility
in the Equivalent Amount of NOK 83,840,000 between Sea Truck Rederi AS (as
Borrower) and Den Norske Bank ASA (as Banks) and Den Norske Bank ASA (as
Agent) dated March 19, 1998, as may have been amended or supplemented from
time to time; (ii) for assets pledged as security under that GBP 7,350,000
Multicurrency Loan Facility Agreement between Sea Truck (UK) Ltd. and Den
Norske Bank ASA dated June 24, 1996, as may have been amended or supplemented
from time to time; (iii) for assets pledged as security under that certain
Loan Agreement - Floating Rate Loan Facility in the Equivalent Amount of NOK
106,000,000 between Sea Truck Rederi AS (as Borrower) and Den Norske Bank ASA
(as Banks) and Den Norske Bank ASA (as Agent) dated November 30, 1998, as may
have been amended or supplemented from time to time; (iv) for assets pledged
as security under that certain Agreement between the Royal Bank of Scotland
plc and Gulf Offshore N.S. Limited dated August 31, 2001, as may have been
amended or supplemented from time to time; and (v) for the pledge of the
Aberdeen office building as security for a loan, and except for such liens,
encumbrances and defects as are described in the Prospectus or such as do not
materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Company and
its subsidiaries; and all assets (including vessels) held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases, with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries.
(o) The Company and each of its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for the
conduct of their respective businesses and the value of their respective
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properties and as is customary for companies engaged in similar businesses in
similar industries, and neither the Company nor any subsidiary has received
notice of cancellation or non-renewal of such insurance.
(p) The Company and each of its subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service ▇▇▇▇ registrations,
copyrights and licenses necessary for the conduct of their respective
businesses and have no reason to believe that the conduct of their respective
businesses will conflict with, and have not received any notice of any claim
of conflict with, any such rights of others.
(q) There are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, might have a
material adverse effect on the consolidated financial position, stockholders'
equity, results of operations, business or prospects of the Company and its
subsidiaries; and to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
(r) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(s) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the Registration
Statement.
(t) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders, customers
or suppliers of the Company on the other hand, which is required to be
described in the Prospectus which is not so described.
(u) No labor disturbance by the employees of the Company exists or, to
the knowledge of the Company, is imminent, which might be expected to have a
material adverse effect on the general affairs, management, consolidated
financial position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries; and there are no significant
unfair labor practice complaints pending against the Company or any of its
subsidiaries or, to the best of the Company's knowledge, threatened against
any of them.
(v) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
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ERISA) has occurred with respect to any "pension plan" (as defined in ERISA)
for which the Company would have any liability; the Company has not incurred
and does not expect to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company would have any
liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such
qualification.
(w) The Company and its subsidiaries have filed all federal, state and
local income and franchise tax returns required to be filed through the date
hereof or has filed for appropriate extensions for the filing of such returns
and has paid all taxes due thereon, and no tax deficiency has been determined
adversely to the Company or any of its subsidiaries which has had (nor does
the Company have any knowledge of any tax deficiency which, if determined
adversely to the Company or any of its subsidiaries, might have) a material
adverse effect on the consolidated financial position, stockholders' equity,
results of operations, business or prospects of the Company and its
subsidiaries.
(x) Since the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in the
Prospectus, the Company has not (i) issued or granted any securities, (ii)
incurred any liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary course of
business, (iii) entered into any transaction not in the ordinary course of
business or (iv) declared or paid any dividend on its capital stock.
(y) The Company (i) makes and keeps accurate books and records and (ii)
maintains internal accounting controls which provide reasonable assurance
that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain accountability for
its assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability for its assets
is compared with existing assets at reasonable intervals.
(z) Neither the Company nor any of its subsidiaries (i) is in violation
of its charter or by-laws, (ii) is in default in any material respect, and no
event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term,
covenant or condition contained in any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it is a party
or by which it is bound or to which any of its properties or assets is
subject or (iii) is in violation in any material respect of any law,
ordinance, governmental rule, regulation or court decree to which it or its
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property or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental authorization
or permit necessary to the ownership of its property or to the conduct of its
business.
(aa) Neither the Company nor any of its subsidiaries, nor any director,
officer, agent, employee or other person associated with or acting on behalf
of the Company or any of its subsidiaries, has used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect unlawful payment
to any foreign or domestic government official or employee from corporate
funds; violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(ab) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or any of its
subsidiaries (or, to the knowledge of the Company, any of their predecessors
in interest) at, upon or from any of the property now or previously owned or
leased by the Company or its subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any violation or
remedial action which would not have, or could not be reasonably likely to
have, singularly or in the aggregate with all such violations and remedial
actions, a material adverse effect on the general affairs, management,
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; there has been no material
spill, discharge, leak, emission, injection, escape, dumping or release of
any kind onto such property or into the environment surrounding such property
of any toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances due to or caused by the Company or any of its
subsidiaries or with respect to which the Company or any of its subsidiaries
have knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not have or would not be
reasonably likely to have, singularly or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases, a material adverse effect on the general affairs, management,
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and the terms "hazardous
wastes", "toxic wastes", "hazardous substances" and "medical wastes"
shall have the meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental protection.
(cc) Neither the Company nor any subsidiary is, or, as of the Closing
Date after giving effect to the application of the net proceeds as described
in the Prospectus, will be, an "investment company" as defined in the
Investment Company Act of 1940, as amended.
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Section 2. Purchase of the Stock by the Underwriters. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 1,500,000 shares of
the Firm Stock to the several Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase the number of shares of the
Firm Stock set forth opposite that Underwriter's name in Schedule 1 hereto.
The respective purchase obligations of the Underwriters with respect to the
Firm Stock shall be rounded among the Underwriters to avoid fractional
shares, as the Underwriters may determine.
In addition, the Company grants to the Underwriters an option to
purchase up to 225,000 shares of Option Stock. Such option is granted for
the purpose of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section 4 hereof. Shares of Option Stock shall be
purchased severally for the account of the Underwriters in proportion to the
number of shares of Firm Stock set forth opposite the name of such
Underwriters. The respective purchase obligations of each Underwriter with
respect to the Option Stock shall be adjusted by the Underwriters so that no
Underwriter shall be obligated to purchase Option Stock other than in 100
share amounts. The price of both the Firm Stock and any Option Stock shall
be $33.54 per share.
The Company shall not be obligated to deliver any of the Stock to be
delivered on any Delivery Date (as hereinafter defined), except upon payment
for all the Stock to be purchased on such Delivery Date as provided herein.
Section 3. Offering of Stock by the Underwriters. The several
Underwriters propose to offer the Firm Stock for sale upon the terms and
conditions set forth in the Prospectus.
Section 4. Delivery of and Payment for the Stock. Delivery of and
payment for the Firm Stock shall be made at the offices of ▇▇▇▇▇▇▇ & ▇▇▇▇▇
Mayor, Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, at 9:00 A.M., Houston time, on the third full business day following
the date of this Agreement or at such other date or place as shall be
determined by agreement between the Underwriters and the Company. This date
and time are sometimes referred to as the "First Delivery Date." On the
First Delivery Date, the Company shall deliver or cause to be delivered
certificates representing the Firm Stock to the Underwriters for the account
of each Underwriter against payment to or upon the order of the Company of
the purchase price by wire transfer in immediately available funds. Time
shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation of each
Underwriter hereunder. Upon delivery, the Firm Stock shall be registered in
such names and in such denominations as the Underwriters shall request in
writing not less than two full business days prior to the First Delivery
Date. For the purpose of expediting the checking and packaging of the
certificates for the Firm Stock, the Company shall make the certificates
representing the Firm Stock available for inspection by counsel for the
Underwriters at the offices of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ Mayor, Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
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L.L.P., not later than 2:00 P.M., Houston time, on the business day prior to
the First Delivery Date.
The option granted in Section 2 will expire 30 days after the date of
this Agreement and may be exercised in whole or in part from time to time by
written notice being given to the Company by the Underwriters. Such notice
shall set forth the aggregate number of shares of Option Stock as to which
the option is being exercised, the names in which the shares of Option Stock
are to be registered, the denominations in which the shares of Option Stock
are to be issued and the date and time, as determined by the Underwriters,
when the shares of Option Stock are to be delivered; provided, however, that
this date and time shall not be earlier than the First Delivery Date nor
earlier than the second business day after the date on which the option shall
have been exercised nor later than the fifth business day after the date on
which the option shall have been exercised. The date and time the shares of
Option Stock are delivered are sometimes referred to as a "Second Delivery
Date" and the First Delivery Date and any Second Delivery Date are sometimes
each referred to as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made at the place
specified in the first sentence of the first paragraph of this Section 4 (or
at such other place as shall be determined by agreement between the
Underwriters and the Company) at 9:00 A.M., Houston time, on such Second
Delivery Date. On such Second Delivery Date, the Company shall deliver or
cause to be delivered the certificates representing the Option Stock to the
Underwriters for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by wire transfer in
immediately available funds. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. Upon delivery,
the Option Stock shall be registered in such names and in such denominations
as the Underwriters shall request in the aforesaid written notice. For the
purpose of expediting the checking and packaging of the certificates for the
Option Stock, the Company shall make the certificates representing the Option
Stock available for inspection by counsel for the Underwriters at the offices
of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ Mayor, Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., not later than 2:00
P.M., Houston time, on the business day prior to such Second Delivery Date.
Section 5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Underwriters and
to file such Prospectus pursuant to Rule 424(b) under the Securities Act not
later than the Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if applicable,
such earlier time as may be required by Rule 430A(a)(3) under the Securities
Act; to make no further amendment or any supplement to the Registration
Statement or to the Prospectus except as permitted herein; to advise the
Underwriters, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective
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or any supplement to the Prospectus or any amended Prospectus has been filed
and to furnish the Underwriters with copies thereof; to advise the
Underwriters, promptly after it receives notice thereof, of the issuance by
the Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or
suspending any such qualification, to use promptly its best efforts to obtain
its withdrawal;
(b) To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriters such number of the following
documents as the Underwriters shall reasonably request: (i) conformed copies
of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case excluding exhibits) and (ii) each
Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus; and, if the delivery of a prospectus is required at any time
after the Effective Time in connection with the offering or sale of the Stock
or any other securities relating thereto and if at such time any events shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it shall
be necessary to amend or supplement the Prospectus in order to comply with
the Securities Act, to notify the Underwriters and, upon its request, to
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Underwriters may from time to time
reasonably request of an amended or supplemented Prospectus which will
correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Underwriters, be required by
the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof
to the Underwriters and counsel for the Underwriters and obtain the consent
of the Underwriters to the filing;
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(f) As soon as practicable after the Effective Date, to make generally
available to the Company's security holders and to deliver to the
Underwriters an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act and
the Rules and Regulations (including, at the option of the Company, Rule
158);
(g) For a period of five years following the Effective Date, to furnish
to the Underwriters copies of all materials furnished by the Company to its
shareholders and all public reports and all reports and financial statements
furnished by the Company to the principal national securities exchange upon
which the Common Stock may be listed pursuant to requirements of or
agreements with such exchange or to the Commission pursuant to the Exchange
Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Underwriters
may reasonably request to qualify the Stock for offering and sale under the
securities laws of such jurisdictions as the Underwriters may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Stock; provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(i) For a period of 90 days from the date of the Prospectus, not to,
directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose
of (or enter into any transaction or device which is designed to, or could be
expected to, result in the disposition by any person at any time in the
future of), or file with the Commission a registration statement under the
Securities Act relating to, any shares of Common Stock or securities
convertible into or exchangeable for Common Stock (other than the Stock and
shares issued pursuant to employee benefit plans, qualified stock option
plans or other employee compensation plans existing on the date hereof,
including the Gulfmark Offshore, Inc. Employee Stock Purchase Plan, or
pursuant to currently outstanding options, warrants or rights), or sell or
grant options, rights or warrants with respect to any shares of Common Stock
or securities convertible into or exchangeable for Common Stock (other than
the grant of options pursuant to option plans existing on the date hereof),
or (2) enter into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or risks of
ownership of such shares of Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or other securities, in cash or otherwise, in each case without the
prior written consent of ▇▇▇▇▇▇ Brothers Inc. on behalf of the Underwriters,
provided however, that the filing of registration statements on Form S-8 and
amendments thereto in connection with the Company's employee benefit plans in
existence on the date of this Agreement, including the Gulfmark Offshore,
Inc. Employee Stock Purchase Plan, shall not be considered a disposition
under clause (1) above; and to cause the officers and directors of the
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Company listed on Schedule II hereto to furnish to the Underwriters, prior to
the First Delivery Date, a letter or letters, substantially in the form of
Exhibit A hereto, pursuant to which each such person shall agree not to,
directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose
of (or enter into any transaction or device which is designed to, or could be
expected to, result in the disposition by any person at any time in the
future of) any shares of Common Stock or securities convertible into or
exchangeable for Common Stock or (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the
economic benefits or risks of ownership of such shares of Common Stock,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Stock or other securities, in cash or
otherwise, in each case for a period of 90 days from the date of the
Prospectus, without the prior written consent of ▇▇▇▇▇▇ Brothers Inc. on
behalf of the Underwriters, provided however, that the exercise of options
shall not be considered a disposition under clause (1) above;
(j) To apply for the inclusion of the Stock on the Nasdaq National
Market, and to use its best efforts to complete that listing, subject only to
official notice of issuance, prior to the First Delivery Date;
(k) To apply the net proceeds from the sale of the Stock being sold by
the Company as set forth in the Prospectus; and
(l) To take such steps as shall be necessary to ensure that neither the
Company nor any subsidiary shall become an "investment company" as defined
in the Investment Company Act of 1940, as amended.
Section 6. Expenses. The Company agrees to pay (a) the costs incident
to the authorization, issuance, sale and delivery of the Stock and any taxes
payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement
and any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus, all as provided in this Agreement; (d) the costs of producing and
distributing this Agreement and any other related documents in connection
with the offering, purchase, sale and delivery of the stock; (e) any
applicable listing or other fees; (f) the fees and expenses (not in excess,
in the aggregate, of $10,000) of qualifying the Stock under the securities
laws of the several jurisdictions as provided in Section 5(h) and of
preparing, printing and distributing a Blue Sky Memorandum (including related
fees and expenses of counsel to the Underwriters); (g) all costs and expenses
of the Underwriters; (h) the costs and expenses of the Company relating to
investor presentations on any "road show" undertaken in connection with the
marketing of the offering of the Stock, including, without limitation,
expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road show
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presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the
road show and (i) all other costs and expenses incident to the performance of
the obligations of the Company under this Agreement; provided that, except as
provided in this Section 6 and in Section 11, the Underwriters shall pay
their own costs and expenses, including the costs and expenses of their
counsel, any transfer taxes on the Stock which they may sell and the expenses
of advertising any offering of the Stock made by the Underwriters.
Section 7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when
made and on each Delivery Date, of the representations and warranties of the
Company contained herein, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 5(a); no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise
shall have been complied with.
(b) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Stock, the
Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters.
(c) ▇▇▇▇▇▇▇▇▇▇▇ & Price, LLP shall have furnished to the Underwriters
their written opinion, as counsel to the Company, addressed to the
Underwriters and dated such Delivery Date, in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
(i) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing under
the laws of their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as foreign corporations in
each jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification,
(other than where the failure to so qualify or be in good standing as a
foreign corporation would not have a material adverse effect on the
consolidated financial position, stockholders' equity, results of operation,
business or prospects of the Company and its subsidiaries, taken as a whole),
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and have all power and authority necessary to own or hold their respective
properties and conduct the businesses in which they are engaged;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and non-
assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock (or the equivalent)
of each subsidiary of the Company have been duly and validly authorized and
issued and are fully paid, non-assessable and (except for any directors'
qualifying shares) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(iii) The shares of the Stock being delivered on such Delivery Date
to the Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor will be duly and validly
issued, fully paid and non-assessable;
(iv) Except as described in the Prospectus, there are no preemptive
or other rights to subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any shares of the Stock pursuant to the Company's
charter or by-laws or any agreement or other instrument known to such
counsel;
(v) To the best of such counsel's knowledge, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the Company or
any of its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, might have a material adverse effect on
the consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries; and,
to the best of such counsel's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
(vi) The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to the subparagraph of Rule
424(b) of the Rules and Regulations specified in such opinion on the date
specified therein and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of such counsel,
no proceeding for that purpose is pending or threatened by the Commission;
(vii) The Registration Statement and the Prospectus and any further
amendments or supplements thereto made by the Company prior to such Delivery
Date (except for the financial statements and financial schedules and other
financial and related statistical data included therein, as to which such
counsel need express no belief) comply as to form in all material respects
with the requirements of the Securities Act and the Rules and Regulations,
and the documents incorporated by reference in the Prospectus when they where
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filed with the Commission (except for the financial statements and financial
schedules and other financial and related statistical data included therein,
as to which such counsel need express no belief) complied as to form in all
material respects with the requirements of the Exchange Act and the Rules and
Regulations;
(viii) The statements contained in the Prospectus under the caption
"Description of Common Stock" and "Description of Debt Securities"
insofar as they describe federal statutes, rules and regulations, constitute
a fair summary thereof and the opinion of such counsel filed as Exhibit 5.1
to the Registration Statement is confirmed and the Underwriters may rely upon
such opinion as if it were addressed to them;
(ix) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described in the
Prospectus or filed as exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations which have not been described
or filed as exhibits to the Registration Statement;
(x) This Agreement has been duly authorized, executed and delivered
by the Company;
(xi) The issue and sale of the shares of Stock being delivered on
such Delivery Date by the Company pursuant to this Agreement and the
execution, delivery and compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions contemplated
hereby will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
known to such counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the provisions of
the charter or by-laws of the Company or any of its subsidiaries or any
statute or any order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties or assets; and, except for the
registration of the Stock under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection
with the purchase and distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby, except for such
consents, approvals, authorizations, orders, filings or registrations as have
been obtained or made;
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(xii) To the best of such counsel's knowledge, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Securities Act;
and
(xiii) Neither the Company nor any subsidiary is an "investment
company" as defined in the Investment Company Act of 1940, as amended.
In rendering such opinion, such counsel may state that their opinion is
limited to matters governed by the Federal laws of the United States of
America, the laws of the State of Texas and the General Corporation Law of
the State of Delaware. In addition, in rendering the opinions sets forth in
paragraphs (i) and (ii) of this Section 7(c) with respect to matters relating
to the Significant Subsidiaries, such counsel may rely upon the opinions of
local counsel to be provided pursuant to Section 7(d). Such opinion shall
also be to the effect that (x) such counsel has acted as counsel to the
Company in connection with the preparation of the Registration Statement and
(y) based on the foregoing, no facts have come to the attention of such
counsel which lead them to believe that the Registration Statement (except
for the financial statements and financial schedules and other financial and
statistical data included therein, as to which such counsel need express no
belief) as of the Effective Date, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading,
or that the Prospectus (except as stated above) contains any untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The foregoing
opinion and statement may be qualified by a statement to the effect that such
counsel does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus (other than as set forth in clause (viii) above).
(d) The Underwriters shall have received from local counsel licensed to
practice in England (with respect to GulfMark North Sea, Ltd. and Gulf
Offshore N.S. Ltd.), Panama (with respect to Gulf Offshore Marine
International, Inc.), Norway (with respect to Gulf Offshore Norge AS,
GulfMark Norge AS, Sea Truck Shipping AS and Sea Truck Rederi AS), written
opinions addressed to the Underwriters and dated such Delivery Date, in form
and substance and from counsel satisfactory to counsel for the Underwriters,
to the effect that:
(i) Such subsidiaries have been duly incorporated and are validly
existing as corporations in good standing under the laws of their respective
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jurisdictions of incorporation, are duly qualified to do business and are in
good standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their respective
businesses requires such qualification (other than where the failure to so
qualify or be in good standing as a foreign corporation would not have a
material adverse effect on the consolidated financial position, stockholders'
equity, results of operation, business or prospects of the Company and its
subsidiaries, taken as a whole), and have all power and authority necessary
to own or hold their respective properties and conduct the businesses in
which they are engaged;
(ii) All of the issued shares of capital stock of each subsidiary
of the Company have been duly and validly authorized and issued and are fully
paid, non-assessable and (except for any directors' qualifying shares) are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(iii) To the best of such counsel's knowledge, there are no legal
or governmental proceedings (domestic or foreign) pending in such
jurisdiction to which the Company or any of its subsidiaries is a party or of
which any property or assets of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, might have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries; and, to the best of such
counsel's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and
(iv) The issue and sale of the shares of Stock being delivered on
such Delivery Date by the Company pursuant to this Agreement and the
execution, delivery and compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions contemplated
hereby will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
known to such counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the provisions of
the charter or by-laws of any of the Company's subsidiaries or any statute or
any order, rule or regulation known to such counsel of any court or
governmental agency or body (whether domestic or foreign) having jurisdiction
over the Company or any of its subsidiaries or any of their properties or
assets; and no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body in such
jurisdiction is required for the execution, delivery and performance of this
Agreement by the Company or the consummation of the transactions contemplated
hereby.
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In rendering such opinions, such counsel may state that their opinions
are limited to matters governed by the laws of the applicable local
jurisdiction.
(e) The Underwriters shall have received from ▇▇▇▇▇▇▇ & ▇▇▇▇▇ Mayor,
Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or
opinions, dated such Delivery Date, with respect to the issuance and sale of
the Stock, the Registration Statement, the Prospectus and other related
matters as the Underwriters may reasonably require, and the Company shall
have furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(f) At the time of execution of this Agreement, the Underwriters shall
have received from Ernst & Young LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP with respect to
financial statements of the Company, a letter or letters, in form and
substance satisfactory to the Underwriters, addressed to the Underwriters and
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of
the date hereof (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five days
prior to the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily covered by
accountants' "comfort letters" to underwriters in connection with registered
public offerings.
(g) With respect to the letter or letters of Ernst & Young LLP and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP referred to in the preceding paragraph and delivered to
the Underwriters concurrently with the execution of this Agreement (the
"initial letters"), the Company shall have furnished to the Underwriters a
letter (the "bring-down letter") of such accountants, addressed to the
Underwriters and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Prospectus,
as of a date not more than five days prior to the date of the bring-down
letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by the initial letters and
(iii) confirming in all material respects the conclusions and findings set
forth in the initial letters.
(h) The Company shall have furnished to the Underwriters a certificate,
dated such Delivery Date, of its Chairman of the Board, its President or a
Vice President and its chief financial officer stating that:
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(i) The representations, warranties and agreements of the Company in
Section 1 are true and correct as of such Delivery Date; the Company has
complied with all its agreements contained herein; and the conditions set
forth in Sections 7(a), 7(i) and 7(j) have been fulfilled; and
(ii) They have carefully examined the Registration Statement and
the Prospectus and, in their opinion (A) as of the Effective Date, the
Registration Statement and Prospectus did not include any untrue statement of
a material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and (B) since the Effective Date no event has occurred which should have been
set forth in a supplement or amendment to the Registration Statement or the
Prospectus.
(i) Neither the Company nor any of its subsidiaries shall have sustained
since the date of the latest audited financial statements included in the
Prospectus (A) any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus or (B) since
such date there shall not have been any change in the capital stock or long-
term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus, the effect of which, in any such case
described in clause (A) or (B), is, in the judgment of the Underwriters, so
material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Stock being delivered on such
Delivery Date on the terms and in the manner contemplated in the Prospectus.
(j) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization",
as that term is defined by the Commission for purposes of Rule 436(g)(2) of
the Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
(k) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on
any exchange or in the over-the-counter market, shall have been suspended or
the settlement of such trading generally shall have been materially disrupted
or minimum prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall
have been declared by Federal or state authorities, (iii) the United States
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shall have become engaged in hostilities, there shall have been an escalation
in hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv) there
shall have occurred such a material adverse change in general economic,
political or financial conditions, including without limitation as a result
of terrorist activities after the date hereof, (or the effect of
international conditions on the financial markets in the United States shall
be such) as to make it, in the judgment of the Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of the Stock
being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(l) The Nasdaq National Market shall have approved the Stock for
inclusion, subject only to official notice of issuance.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
Section 8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter, its
officers and employees and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Stock), to which that Underwriter,
officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment
or supplement thereto, or (B) in any materials or information provided to
investors by, or with the approval of, the Company in connection with the
marketing of the offering of the Stock ("Marketing Materials"), including
any roadshow or investor presentations made to investors by the Company
(whether in person or electronically) (ii) the omission or alleged omission
to state in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, or in any Marketing
Materials, any material fact required to be stated therein or necessary to
make the statements therein not misleading or (iii) any act or failure to act
or any alleged act or failure to act by any Underwriter in connection with,
or relating in any manner to, the Stock or the offering contemplated hereby,
and which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by clause
(i) or (ii) above (provided that the Company shall not be liable under this
clause (iii) to the extent that it is determined in a final judgment by a
court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act undertaken or
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omitted to be taken by such Underwriter through its gross negligence or
willful misconduct), and shall reimburse each Underwriter and each such
officer, employee or controlling person promptly upon demand for any legal or
other expenses reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in
any such amendment or supplement, in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Company
through the Underwriters by or on behalf of any Underwriter specifically for
inclusion therein which information consists solely of the information
specified in Section 8(e). The foregoing indemnity agreement is in addition
to any liability which the Company may otherwise have to any Underwriter or
to any officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of its directors,
and each person, if any, who controls the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof, to which the Company or any
such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment
or supplement thereto, or (ii) the omission or alleged omission to state in
any Preliminary Prospectus, the Registration Statement or the Prospectus, or
in any amendment or supplement thereto, any material fact required to be
stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with written information concerning such Underwriter
furnished to the Company through the Underwriters by or on behalf of that
Underwriter specifically for inclusion therein, and shall reimburse the
Company and any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred. The foregoing indemnity agreement is
in addition to any liability which any Underwriter may otherwise have to the
Company or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
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indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 8 except to the extent it
has been materially prejudiced by such failure and, provided further, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably satisfactory to
the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the Underwriters
shall have the right to employ counsel to represent jointly the Underwriters
and their respective officers, employees and controlling persons who may be
subject to liability arising out of any claim in respect of which indemnity
may be sought by the Underwriters against the Company under this Section 8
if, in the reasonable judgment of the Underwriters, it is advisable for the
Underwriters and those officers, employees and controlling persons to be
jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Company. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent
of the indemnifying party or if there be a final judgment of the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, 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 loss, claim, damage or liability, or action in respect
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thereof, (i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Stock or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Underwriters on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from
the offering of the Stock purchased under this Agreement (before deducting
expenses) received by the Company, on the one hand, and the total
underwriting discounts and commissions received by the Underwriters with
respect to the shares of the Stock purchased under this Agreement, on the
other hand, bear to the total gross proceeds from the offering of the shares
of the Stock under this Agreement, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section shall be deemed
to include, for purposes of this Section 8(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Stock underwritten by it and distributed to the public was offered
to the public exceeds the amount of any damages which such Underwriter has
otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. 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 was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute as provided in this Section 8(d) are several in proportion to
their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company acknowledges that
the statements with respect to the public offering of the Stock by the
Underwriters set forth on the cover page of the Prospectus and the paragraph
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concerning over-allotments and the concession and reallowance figures
appearing under the caption "Underwriting" in the Prospectus are correct and
constitute the only information concerning such Underwriters furnished in
writing to the Company by or on behalf of the Underwriters specifically for
inclusion in the Registration Statement and the Prospectus.
Section 9. Defaulting Underwriters. If, on either Delivery Date, any
Underwriter defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Underwriters shall be obligated to
purchase the Stock which the defaulting Underwriter agreed but failed to
purchase on such Delivery Date in the respective proportions which the number
of shares of the Firm Stock set opposite the name of each remaining non-
defaulting Underwriter in Schedule 1 bears to the total number of shares of
the Firm Stock set opposite the names of all the remaining non-defaulting
Underwriters in Schedule I; provided, however, that the remaining non-
defaulting Underwriters shall not be obligated to purchase any of the Stock
on such Delivery Date if the total number of shares of the Stock which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of shares of the Stock to be purchased
on such Delivery Date, and any remaining non-defaulting Underwriter shall not
be obligated to purchase more than 110% of the number of shares of the Stock
which it agreed to purchase on such Delivery Date pursuant to the terms of
Section 3. If the foregoing maximums are exceeded, the remaining non-
defaulting Underwriters, or those other Underwriters satisfactory to the
Underwriters who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all the
Stock to be purchased on such Delivery Date. If the remaining Underwriters
or other underwriters satisfactory to the Underwriters do not elect to
purchase the shares which the defaulting Underwriter or Underwriters agreed
but failed to purchase on such Delivery Date, this Agreement (or, with
respect to the Second Delivery Date, the obligation of the Underwriters to
purchase, and of the Company to sell, the Option Stock) shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company, except that the Company will continue to be liable for the payment
of expenses to the extent set forth in Sections 6 and 11. As used in this
Agreement, the term "Underwriter" includes, for all purposes of this
Agreement unless the context requires otherwise, any Underwriter who,
pursuant to this Section 9, purchases that which a defaulting Underwriter
agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If
other Underwriters are obligated or agree to purchase the Stock of a
defaulting or withdrawing Underwriter, either the Underwriters or the Company
may postpone the Delivery Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel
for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
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Section 10. Termination. The obligations of the Underwriters hereunder
may be terminated by the Underwriters by notice given to and received by the
Company prior to delivery of and payment for the Firm Stock if, prior to that
time, any of the events described in Sections 7(i), 7(j) or 7(k) shall have
occurred or if the Underwriters shall decline to purchase the Stock for any
reason permitted under this Agreement.
Section 11. Reimbursement of Underwriters' Expense. If the Company
shall fail to tender the Stock for delivery to the Underwriters by reason of
any failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company
is not fulfilled, the Company will reimburse the Underwriters for all
reasonable out-of-pocket expenses (including fees and disbursements of
counsel) incurred by the Underwriters in connection with this Agreement and
the proposed purchase of the Stock, and upon demand the Company shall pay the
full amount thereof to the Underwriters. If this Agreement is terminated
pursuant to Section 9 by reason of the default of one or more Underwriters,
the Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
Section 12. Notices, Etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., Syndicate Registration
Department, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (Fax: ▇▇▇-▇▇▇-▇▇▇▇),
with a copy, in the case of any notice pursuant to Section 8(c), to the
Director of Litigation, Office of the General Counsel, ▇▇▇▇▇▇ Brothers Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇;
if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, (Fax: ▇▇▇-▇▇▇-▇▇▇▇);
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Underwriters, which address will be supplied to any other party hereto by the
Underwriters upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company
shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Underwriters by ▇▇▇▇▇▇ Brothers Inc.
on behalf of the Underwriters.
Section 13. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the
Company and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the
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Company contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any Underwriter within
the meaning of Section 15 of the Securities Act and (B) the indemnity
agreement of the Underwriters contained in Section 8(b) of this Agreement
shall be deemed to be for the benefit of directors of the Company, officers
of the Company who have signed the Registration Statement and any person
controlling the Company within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section 13, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
Section 14. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in
this Agreement or made by or on behalf on them, respectively, pursuant to
this Agreement, shall survive the delivery of and payment for the Stock and
shall remain in full force and effect, regardless of any investigation made
by or on behalf of any of them or any person controlling any of them.
Section 15. Definition of the Terms "Business Day" and "Subsidiary"
For purposes of this Agreement, (a) "business day" means each Monday,
Tuesday, Wednesday, Thursday or Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close and (b) "subsidiary" has the meaning set forth in
Rule 405 of the Rules and Regulations.
Section 16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
Section 17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
Section 18. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the
meaning or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the Company
and the Underwriters, please indicate your acceptance in the space provided
for that purpose below.
Very truly yours,
GULFMARK OFFSHORE, INC.
By: ________________________
Name: ______________________
Title: _____________________
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Accepted:
▇▇▇▇▇▇ BROTHERS INC.
For themselves and the several
Underwriters named in
Schedule 1 hereto
By: ▇▇▇▇▇▇ BROTHERS INC.
By: __________________________
Authorized Underwriters
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SCHEDULE I
Number of Shares of Firm
Underwriters Stock to be Purchased
------------------------------------------- -------------------------
▇▇▇▇▇▇ Brothers Inc. . . . . . . . . . . . . 600,000
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.. . . . . . . . . . 375,000
CIBC World Markets Corp. . . . . . . . . . . 262,500
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated . . 262,500
---------
Total 1,500,000
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SCHEDULE II
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
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Exhibit A
LOCK-UP LETTER AGREEMENT
▇▇▇▇▇▇ BROTHERS INC.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
CIBC WORLD MARKETS CORP.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
The undersigned understands that you and certain other firms propose to
enter into an Underwriting Agreement (the "Underwriting Agreement")
providing for the purchase by you and such other firms (the "Underwriters")
of shares (the "Shares") of Common Stock, par value $0.01 per share (the
"Common Stock"), of GulfMark Offshore, Inc., a Delaware corporation (the
"Company"), and that the Underwriters propose to reoffer the Shares to the
public (the "Offering") under a "shelf" Registration Statement on Form S-3
(Registration No. 333-44696) filed with the Securities and Exchange
Commission.
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of ▇▇▇▇▇▇
Brothers Inc., on behalf of the Underwriters, the undersigned will not,
directly or indirectly, (1) offer for sale, sell, pledge, or otherwise
dispose of (or enter into any transaction or device that is designed to, or
could be expected to, result in the disposition by any person at any time in
the future of) any shares of Common Stock (including, without limitation,
shares of Common Stock that may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations of the Securities
and Exchange Commission and shares of Common Stock that may be issued upon
exercise of any option or warrant) or securities convertible into or
exchangeable for Common Stock (other than the Shares) owned by the
undersigned on the date of execution of this Lock-Up Letter Agreement or on
the date of the completion of the Offering, or (2) enter into any swap or
other derivatives transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of such shares of Common
Stock, whether any such transaction described in clause (1) or (2) above is
to be settled by delivery of Common Stock or other securities, in cash or
otherwise, for a period of 90 days after the date of the final Prospectus
relating to the Offering; provided, however, that exercise of options shall
not be considered a disposition under clause (1) above.
In furtherance of the foregoing, the Company and its Transfer Agent are
hereby authorized to decline to make any transfer of securities if such
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transfer would constitute a violation or breach of this Lock-Up Letter
Agreement.
It is understood that, if the Company notifies you that it does not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective, or if the Underwriting Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to
payment for and delivery of the Shares, I will be released from my
obligations under this Lock-Up Letter Agreement.
The undersigned understands that the Company and the Underwriters will
proceed with the Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering actually occurs depends on a number of
factors, including market conditions. Any Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Letter Agreement and
that, upon request, the undersigned will execute any additional documents
necessary in connection with the enforcement hereof. Any obligations of the
undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
Very truly yours,
By: _____________________
Name: ___________________
Title: __________________
Dated: March 12, 2002
32
