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EXHIBIT 10.24
TAX ALLOCATION AND INDEMNIFICATION AGREEMENT
THIS TAX ALLOCATION AND INDEMNIFICATION AGREEMENT (this "Agreement")
is made and entered into as of April 30, 1997, by and among GULFMARK
INTERNATIONAL, INC., a Delaware corporation ("GulfMark"), GULFMARK OFFSHORE,
INC., a Delaware corporation ("Spinco"), and ENERGY VENTURES, INC., a Delaware
corporation ("EVI").
W I T N E S S E T H:
WHEREAS, GulfMark, Spinco and EVI have entered into that certain
Agreement and Plan of Distribution dated as of December 5, 1996 (the
"Distribution Agreement"), pursuant to which, among other things, GulfMark will
distribute to its stockholders all the outstanding stock of Spinco (the
"Distribution");
WHEREAS, GulfMark, Spinco, EVI and GulfMark Acquisition Co., a
Delaware corporation and wholly-owned subsidiary of EVI ("Merger Sub"), have
entered into that certain Agreement and Plan of Merger dated as of December 5,
1996 (the "Merger Agreement"), pursuant to which, among other things,
immediately following the Distribution, GulfMark will merge with Merger Sub
(the "Merger);
WHEREAS, Section 7.3 of the Distribution Agreement provides that prior
to the Distribution, GulfMark, Spinco and EVI will enter into a Tax Allocation
Agreement acceptable in all respects to EVI and Spinco, which will set forth
each party's rights and obligations with respect to payments and refunds, if
any, of Taxes (as hereinafter defined) for periods before and after, and
periods including, the Effective Date (as hereinafter defined) and related
matters such as the filing of tax returns and the conduct of audits and other
tax proceedings; and
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WHEREAS, the parties to this Agreement desire to set forth their
agreement in relation to their respective rights and obligations with respect
to such matters relating to Taxes;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises, covenants and conditions hereinafter contained, the parties hereto
agree as follows:
1. Definitions. The defined terms used in this Agreement shall
have the following meanings:
"Affiliate" shall mean, as to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control
with, such first Person. As used in this definition, the term "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of securities, by contract or otherwise.
"Agreement" shall have the meaning such term is given in the
preamble of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, or corresponding provisions of any subsequent federal Tax laws.
"Contribution" shall have the meaning such term is given in
the third recital of the Distribution Agreement.
"Distribution" shall have the meaning such term is given in
the first recital of this Agreement.
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"Distribution Agreement" shall have the meaning such term is
given in the first recital of this Agreement.
"Effective Date" shall mean the time and date the Merger is
effective.
"Election Notice" shall have the meaning such term is given in
Section 7(b)(ii)(A) of this Agreement.
"Ercon" shall mean the wholly-owned subsidiary of GulfMark,
Ercon Development Corporation, and upon its merger into GulfMark, the Ercon
division of GulfMark.
"EVI" shall have the meaning such term is given in the
preamble of this Agreement.
"EVI Costs" shall mean any and all costs and expenses incurred
by any Tax Indemnitee and relating to any Tax, or any matter related to any
Tax, to which this Agreement relates (including, but not limited to, the
preparation and/or review of any claim for refund or Tax Return covered by the
provisions of Section 5 or 6 hereof and any preparation with respect to, or
review, investigation, defense, prosecution, settlement or compromise of, any
EVI Tax Claim controlled by EVI pursuant to this Agreement), such costs and
expenses including, but not limited to, (i) any and all third party costs
(including, without limitation, reasonable attorneys', accountants' and
experts' fees and disbursements, settlement costs and court costs), and (ii)
any and all direct costs and expenses relating to any Tax Indemnitee's
personnel and support.
"EVI Tax Claim" shall have the meaning such term is given in
Section 7(b)(i) of this Agreement.
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"Financial Default" shall mean any of the following events:
(a) Spinco or any "Significant Affiliate" (as hereinafter
defined) (i) makes a general assignment for the benefit of creditors;
(ii) files a voluntary bankruptcy petition; (iii) files a petition or
answer seeking for itself a reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any
law; (iv) files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against it in a
proceeding of the type described in clauses (a)(i)--(iii) of this
sentence; or (v) seeks, consents to or acquiesces in the appointment
of a trustee, receiver or liquidator of itself, or of all or any
substantial part of its properties; or
(b) a final and non-appealable judgment is entered by a
court with appropriate jurisdiction ruling that Spinco or any
Significant Affiliate is bankrupt or insolvent, or a final and
non-appealable order for relief is entered by a court with appropriate
jurisdiction against Spinco or any Significant Affiliate, in each case
under any foreign, federal or state bankruptcy or insolvency laws as
now or hereafter in effect.
For purposes of this definition, the term "Significant Affiliate" means any
Affiliate of Spinco (other than any individual) which, at the time a Financial
Default occurs, has assets aggregating 10% or more of the consolidated assets
of Spinco and its Affiliates (other than any individual) at that time, taken as
a whole.
"Final Determination" shall mean (a)(i) a decision of the
United States Tax Court, which has become final and non-appealable, or (ii) a
judgment, decree or other
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order by another court or other tribunal with appropriate jurisdiction, which
has become final and non-appealable; (b) a final and binding settlement or
compromise with an administrative agency with appropriate jurisdiction,
including, but not limited to, a closing agreement under Section 7121 of the
Code; (c) any disallowance of a claim for refund or credit in respect to an
overpayment of Tax, but only at such time as the period for timely filing of
suit with respect to such disallowance has expired; or (d) any final
disposition by reason of the expiration of all applicable statutes of
limitations.
"GulfMark" shall have the meaning such term is given in the
preamble of this Agreement.
"GulfMark Company" shall mean any corporation, partnership,
limited liability company, association or other entity, excluding GulfMark and
Ercon but specifically including Spinco, of which GulfMark, Ercon or any
GulfMark Company now or at any time in the past owned, directly or indirectly,
an ownership interest in (whether or not such ownership interest constituted
control of the entity and whether or not such interest represented a passive or
active investment), including, without limitation, those companies and entities
described on Schedule A hereto.
"GulfMark Taxes" shall mean any and all Taxes to which
GulfMark, Ercon or any GulfMark Company may be obligated relating to or arising
from (i) the current or past operations or assets of GulfMark, Ercon or any
GulfMark Company through the Effective Date, (ii) the Contribution and the
Distribution, (iii) the Merger, (iv) any Tax Return filed by GulfMark, Ercon or
any current or past GulfMark Company, (v) any Tax for which GulfMark or Ercon
may be alleged to be liable by reason of being affiliated with any other Person
for all periods prior to the Effective Date, (vi) property
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Taxes with respect to the assets of GulfMark, Ercon or any GulfMark Company for
all periods prior to the Effective Date and (vii) any transfer Taxes or value
added Taxes in connection with the transactions contemplated by the
Contribution, the Distribution and the Merger.
"Independent Accounting Firm" shall mean Price Waterhouse LLP
or such other independent accounting firm as may be mutually acceptable to EVI
and Spinco.
"Merger" shall have the meaning such term is given in the
second recital of this Agreement.
"Merger Agreement" shall have the meaning such term is given
in the second recital of this Agreement.
"Merger Sub" shall have the meaning such term is given in the
second recital of this Agreement.
"Person" shall mean a corporation, an association, a
partnership, a joint venture, a trust, an organization, a business, an
individual, or any other entity.
"Post-Closing Period" shall have the meaning such term is
given in Section 2(a)(iii) of this Agreement.
"Pre-Closing Period" shall have the meaning such term is given
in Section 2(a)(ii) of this Agreement.
"Significant Affiliate" shall have the meaning such term is
given in the definition of Financial Default herein.
"Spinco" shall have the meaning such term is given in the
preamble of this Agreement.
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"Spinco Tax Claim" shall have the meaning such term is given
in Section 7(c) of this Agreement.
"Statement" shall have the meaning such term is given in
Section 6(c) of this Agreement.
"Straddle Period" shall have the meaning such term is given in
Section 2(b) of this Agreement.
"Tax Claim Notice" shall have the meaning such term is given
in Section 7(b)(i) of this Agreement.
"Tax Indemnitee" and "Tax Indemnitees" shall have the
respective meanings such terms are given in Section 2(a) of this Agreement.
"Tax Returns" shall mean all returns, declarations, reports,
statements and other documents of, relating to, or required to be filed in
respect of, any and all Taxes, and the term "Tax Return" means any one of the
foregoing Tax Returns.
"Taxes" shall mean all federal, state, local, foreign and
other taxes, charges, fees, duties, levies, imposts, customs or other
assessments, including, without limitation, all net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, profit share,
license, lease, service, service use, value added, withholding, payroll,
employment, excise, estimated, severance, stamp, occupation, premium, property,
windfall profits, or other taxes, fees, assessments, customs, duties, levies,
imposts, or charges of any kind whatsoever, together with any interest,
penalties, additions to tax, fines or other additional amounts imposed thereon
or related thereto, and the term "Tax" means any one of the foregoing Taxes.
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2. Spinco Tax Indemnity. (a) Spinco shall be responsible for,
shall pay or cause to be paid, and shall indemnify, defend and hold harmless
EVI, GulfMark and their respective Affiliates, officers, directors, employees,
agents and assigns (all of such Persons indemnified by Spinco under this
Section 2 being collectively referred to herein as the "Tax Indemnitees" and
individually referred to herein as a "Tax Indemnitee") from and against:
(i) any and all Taxes (including any and all
GulfMark Taxes) relating to any consolidated federal income Tax Return
of any "affiliated group" (as such term is defined in Section 1504 of
the Code) of corporations which includes or included GulfMark, Ercon
or any GulfMark Company (and any and all Taxes relating to any
consolidated, combined, affiliated or unitary income or franchise Tax
Return of any foreign, state or local taxing jurisdiction that
requires or permits consolidated, combined, affiliated or unitary
income or franchise Tax Returns of any affiliated group or groups of
corporations which includes or included GulfMark, Ercon or any
GulfMark Company) for any and all periods or portions thereof ending
on or before the Effective Date (including, without limitation, any
such Taxes relating to the income, business, activities, operations,
property or assets of GulfMark, Spinco, Ercon and any GulfMark Company
with respect to periods or portions thereof ending on or before the
Effective Date and any such Taxes for which GulfMark, Spinco, Ercon or
any GulfMark Company is or may be or become severally liable under
Treasury Regulation Section 1.1502-6 or
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1.1502-78(b)(2) or any similar provision under any applicable foreign,
state or local law);
(ii) any and all Taxes (including any and all
GulfMark Taxes) not otherwise described in, and covered by, Section
2(a)(i) above of, imposed on, or pertaining or attributable to,
GulfMark, Spinco, Ercon or any GulfMark Company with respect to any
period or portion thereof that ends on or before the Effective Date (a
"Pre-Closing Period"), including, without limitation, any and all such
Taxes relating to (A) the income, business, activities, operations,
property or assets of GulfMark, Spinco, Ercon or any GulfMark Company
with respect to any Pre-Closing Period, (B) the Distribution and (C)
the Merger; and
(iii) any and all Taxes not otherwise described in,
and covered by, Section 2(a)(i) and/or (ii) above of, imposed on, or
pertaining or attributable to, any Tax Indemnitee with respect to any
period or portion thereof that begins and ends after the Effective
Date (a "Post-Closing Period") to the extent such Taxes relate to
Spinco or any of its Affiliates.
(b) In the case of any Tax described in Section 2(a)(ii)
above that pertains to any taxable period that begins on or before the
Effective Date but does not end on or before the Effective Date (a "Straddle
Period"), the portion of such Tax of, or pertaining or attributable to,
GulfMark, Spinco, Ercon or any GulfMark Company for the Pre-Closing Period of
such Straddle Period shall be determined in accordance with Section 4 hereof.
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3. EVI Tax Indemnity. EVI shall be responsible for, shall pay or
cause to be paid, and shall indemnify, defend and hold harmless Spinco from and
against (i) any and all Taxes of, or pertaining or attributable to, GulfMark or
Ercon for any Post-Closing Period. In the case of any Tax described in the
preceding sentence and pertaining to any Straddle Period, the portion of such
Tax of, or pertaining or attributable to, GulfMark or Ercon for the
Post-Closing Period of such Straddle Period shall be the portion of such Tax
that is not allocated to the Pre-Closing Period of such Straddle Period under
Section 4 hereof.
4. Allocation of Certain Taxes.
(a) EVI will, to the extent permitted by applicable law,
elect with the appropriate taxing authorities to close the taxable periods of
GulfMark and Ercon as of and including the Effective Date. In any case where
applicable law does not require or permit such a taxable period of GulfMark or
Ercon to be closed as of and including the Effective Date, any Tax described in
Section 2(b) hereof and pertaining to such Straddle Period shall be determined
in accordance with the applicable provisions of Section 4(b) hereof.
(b) In the case of any Tax described in Section 2(b)
hereof and pertaining to a Straddle Period (including any franchise Taxes
described in Section 2(b) hereof (whether based on income, capitalization, debt
and/or shares of stock authorized, issued or outstanding or otherwise) or any
ad valorem Taxes described in Section 2(b) hereof), the portion of such Tax
pertaining or attributable to GulfMark or Ercon for the Pre-Closing Period of
such Straddle Period shall be determined on the basis of an interim closing of
the books as of and including the Effective Date in accordance with
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the next two sentences of this Section 4(b). For purposes of this Section
4(b), the liability for such Tax with respect to the Pre-Closing Period of a
Straddle Period shall be the product of (i) such Tax for the entirety of such
Straddle Period, multiplied by (ii) a fraction, the numerator of which is the
hypothetical Tax for such Pre-Closing Period (determined on the basis of such
interim closing of the books, without annualization) and the denominator of
which is the sum of such numerator plus the hypothetical Tax for the
Post-Closing Period of such Straddle Period (determined on the basis of such
interim closing of the books, without annualization). The hypothetical Tax for
any period shall in no case be less than zero.
5. Carryovers and Refunds.
(a) Any benefit (inclusive of any interest thereon)
realized or arising in a Post-Closing Period and resulting from the carry
forward of any Tax attribute of GulfMark or Ercon (including, without
limitation, any net operating loss carry forward, net capital loss carry
forward, credit carry forward or carry forward of any other Tax attributes)
from a Pre-Closing Period to such Post-Closing Period shall be the property of
Spinco and shall be retained by Spinco.
(b) If after the Effective Date, any Tax Indemnitee
receives a refund of any Tax described in Section 2(a) hereof and pertaining to
GulfMark or Ercon with respect to a Pre-Closing Period, then EVI shall cause to
be paid to Spinco (within 15 calendar days after such receipt) the amount of
such refund received together with any interest actually received thereon (net
of any Taxes imposed on any Tax Indemnitee with respect thereto). If there is
an adjustment to any such refund (or interest thereon), any payment or payments
theretofore made between the parties hereto with
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respect to such refund (or interest thereon) pursuant to this Section 5(b)
shall be appropriately adjusted by means of a payment from Spinco to EVI or EVI
to Spinco, as the case may be, within 15 calendar days after such adjustment.
(c) Any refund of Taxes (inclusive of any interest
thereon) pertaining to GulfMark or Ercon and attributable to a Post-Closing
Period shall be the property of GulfMark or Ercon, as the case may be, and EVI
and shall be retained by GulfMark or Ercon, as the case may be and EVI (or, if
applicable, promptly paid or cause to be paid by Spinco to EVI if any such
refund (or interest thereon) is received by Spinco or any of its Affiliates).
(d) In applying the provisions of Section 5(b) and (c)
hereof, any refund of Taxes described in Section 2(b) (and any interest
thereon) for a Straddle Period of GulfMark or Ercon shall be allocated between
the Pre-Closing Period, on the one hand, and the Post-Closing Period, on the
other hand, in a manner consistent with the provisions of Section 4 hereof.
(e) (i) If reasonably requested by Spinco, and
subject to the last sentence of this Section 5(e)(i), EVI shall file, or, if
appropriate, shall cause GulfMark or Ercon to file, a claim for refund of any
Tax described in Section 2(a) hereof and pertaining exclusively to a period of
GulfMark or Ercon ending on or before the Effective Date, provided that Spinco
shall prepare, handle and prosecute any such claim (but shall keep EVI fully
informed of any developments with respect to such claim) and Spinco shall bear
any and all costs and expenses associated with filing and pursuing any such
claim (including, without limitation, any EVI Costs in connection therewith,
provided such EVI Costs shall have been incurred with the prior written
approval of
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Spinco). Any EVI Tax Claim or Spinco Tax Claim resulting from the filing or
pursuit of such a claim for refund shall be governed by the provisions of
Section 7 hereof. If any dispute arises between EVI and Spinco concerning
whether or not any item in any such claim for refund is reasonable, EVI shall
be under no obligation to file, or to cause GulfMark or Ercon to file, such
claim unless and until independent professional tax counsel mutually acceptable
to both EVI and Spinco (or, in any case where EVI and Spinco are unable to
agree upon independent professional tax counsel, the Independent Accounting
Firm) issues its written opinion to EVI and Spinco concluding that there is
substantial authority for the Tax treatment claimed for such item in such
claim. Spinco shall bear and pay the fees and other costs charged by such
independent professional tax counsel or the Independent Accounting Firm, as the
case may be, that issued such written opinion. Notwithstanding anything
contained in this Section 5(e)(i) to the contrary, in no event shall EVI be
under any obligation to file or prosecute, or to cause GulfMark or Ercon to
file or prosecute, a claim for refund of any Tax described in Section 2(a)(ii)
hereof and pertaining exclusively to a period of GulfMark or Ercon ending on or
before the Effective Date to the extent that the granting of a refund with
respect to such claim would cause, or could reasonably be expected to cause, an
increase in any Tax pertaining to any Straddle Period of GulfMark or Ercon or
any period of any Tax Indemnitee beginning and ending after the Effective Date.
(ii) EVI and Spinco shall jointly agree to file any claim
for refund, and shall jointly prosecute any such claim for refund (by suit or
otherwise), of any Tax described in Section 2(a) hereof and pertaining to any
Straddle Period of GulfMark or Ercon; provided, however, that EVI and Spinco
shall first attempt to separate such
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claim for refund into two claims, one involving the period or periods ending
before, or on and including, the Effective Date (which claim for refund shall
be governed by Section 5(e)(i) hereof), and the other involving the period or
periods beginning and ending after the Effective Date (which claim for refund
shall be subject to the exclusive control of EVI). If EVI and Spinco are not
successful in separating such claim, EVI and Spinco shall cooperate in good
faith with each other in defending or prosecuting such joint claims for refund
and shall not compromise or settle such claim without the other's written
consent. If EVI and Spinco cannot agree with respect to any matter involving
any such joint claim for refund, EVI and Spinco shall jointly engage the
Independent Accounting Firm to make its decision with respect to such matter,
which decision shall be final and binding on the parties hereto. Each of
Spinco and EVI shall bear and pay one-half of the fees and other costs charged
by the Independent Accounting Firm. Notwithstanding anything contained in this
Section 5(e)(ii) to the contrary, in no event shall EVI be under any obligation
to file or prosecute, or to cause GulfMark or Ercon to file or prosecute, any
joint claim for refund of any Tax described in Section 2(a)(ii) hereof and
pertaining to any Straddle Period of GulfMark or Ercon to the extent the
granting of a refund with respect to such joint claim for refund would cause,
or could reasonably be expected to cause, an increase in any Tax pertaining to
a Post-Closing Period.
6. Preparation of Tax Returns.
(a) Spinco will cause GulfMark and Ercon to be included
in, and will prepare or cause to be prepared at Spinco's expense, the
consolidated federal income Tax Returns of GulfMark, Ercon and the GulfMark
Companies (and will cause
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GulfMark and Ercon to be included in, and will prepare or cause to be prepared
at Spinco's expense, the consolidated, combined, affiliated or unitary income
and/or franchise Tax Returns of any foreign, state or local taxing jurisdiction
that requires or permits consolidated, combined, affiliated or unitary income
and/or franchise Tax Returns of an applicable group or groups of corporations
which includes or include GulfMark or Ercon and one or more GulfMark Companies)
for all periods or portions thereof ending on or before the Effective Date,
including, without limitation, the period from January 1, 1997, through and
including the Effective Date, and shall deliver a copy of each such Tax Return
to EVI at least 30 calendar days prior to the due date (including any extension
thereof) for filing such Tax Return, but not earlier than 15 calendar days
following the close of the applicable taxable period covered by such Tax
Return.
(b) Spinco will cause to be prepared at Spinco's expense
each Tax Return (other than any Tax Return described in, and covered by,
Section 6(a) hereof), covering a taxable period ending on or before the
Effective Date (including, without limitation, any short taxable period Tax
Return required or permitted to be filed for a short taxable period ending on
the Effective Date) which is required to be filed for, by, on behalf of or with
respect to GulfMark, Ercon or any GulfMark Company after the Effective Date and
shall deliver a copy of such Tax Return to EVI at least 30 calendar days prior
to the due date (including any extension thereof) for filing such Tax Return,
but not earlier than 15 calendar days following the close of the applicable
taxable period covered by such Tax Return.
(c) With respect to each Tax Return (other than any Tax
Return
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described in the first sentence of Section 6(a) hereof) covering a Straddle
Period which is required to be filed for, by, on behalf of or with respect to
GulfMark or Ercon after the Effective Date, EVI (i) shall cause to be prepared
at EVI's expense each such Tax Return, and (ii) shall determine the portion of
the Taxes shown as due on such Tax Return that is the responsibility of Spinco
under Section 2 hereof, which determination shall be set forth in a statement
("Statement") prepared by EVI. EVI shall deliver a copy of such Tax Return and
the Statement related thereto to Spinco at least 30 calendar days prior to the
due date (including any extension thereof) for filing such Tax Return, but not
earlier than 15 calendar days following the close of the applicable taxable
period covered by such Tax Return.
(d) The amount of Taxes shown to be due on any Tax Return
described in Section 6(a) or 6(b) hereof shall (for purposes of Section 6(e)
hereof) be final and binding upon the parties hereto, unless EVI shall have
delivered to Spinco (within 10 calendar days after the date of EVI's receipt of
such Tax Return) a written report containing all changes that EVI proposes to
make to such Tax Return. The amount of Taxes shown to be due on any Tax Return
and the Statement related thereto described in Section 6(c) hereof shall (for
purposes of Section 6(f) hereof) be final and binding upon the parties hereto,
unless Spinco shall have delivered to EVI (within 10 calendar days after the
date of Spinco's receipt of such Tax Return and the Statement related thereto)
a written report containing all changes that Spinco proposes to make to such
Tax Return and the Statement related thereto. EVI and Spinco shall undertake
in good faith to resolve any issues raised in any such report prior to the due
date (including any extension thereof) for filing such Tax Return and mutually
to consent to the filing of
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such Tax Return and, if applicable, to agree on the determination to be set
forth in the Statement related thereto, in which case the information and total
amount of Taxes shown to be due on such agreed Tax Return or, if applicable,
shown on such agreed Statement shall (for purposes of Section 6(e) hereof or
Section 6(f) hereof, respectively) be final and binding on the parties hereto.
In the event EVI and Spinco are unable to resolve any dispute by the earlier of
(i) 10 calendar days after the date of Spinco's receipt of written notice from
EVI setting forth EVI's proposed resolution of such dispute, or (ii) 10
calendar days prior to the due date for filing of the Tax Return in question
(including any extension thereof), EVI and Spinco shall jointly engage the
Independent Accounting Firm to make its independent determination with respect
to the item or items in dispute and the amount or amounts related thereto.
Spinco shall bear and pay all of the fees and other costs charged by the
Independent Accounting Firm with respect to disputes involving Tax Returns
described in Section 6(a) or 6(b) hereof. Each of Spinco and EVI shall bear
and pay one-half of the fees and other costs charged by the Independent
Accounting Firm with respect to disputes involving Tax Returns described in
Section 6(c) hereof. If the Independent Accounting Firm is engaged, EVI and
Spinco agree to provide, or cause to be provided, the Independent Accounting
Firm with all books, records and other information relevant to the
determination of the disputed items and the Independent Accounting Firm shall
be instructed to make its determination as soon as possible. The Independent
Accounting Firm's determination with respect to the Tax treatment of any
disputed item shall be made on the basis of the Tax treatment for which the
Independent Accounting Firm determines there is substantial authority (or, if
there is substantial authority for two
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or more Tax treatments of such disputed item, the Tax treatment for which the
weight of the authorities supporting such Tax treatment is most substantial in
relation to the weight of authorities supporting the other Tax treatment or
treatments). The determination of the Independent Accounting Firm shall (for
purposes of Section 6(e) hereof or Section 6(f) hereof, as the case may be) be
final and binding on the parties hereto. In any case where a disputed item has
not been resolved (either by mutual agreement of the parties hereto or by a
determination of the Independent Accounting Firm) prior to the due date
(including any extension thereof) for filing such Tax Return, then EVI may
resolve such item as it shall determine in its sole discretion and cause such
Tax Return to be filed on the due date (including any extension thereof) for
filing such Tax Return without the parties' mutual agreement or the Independent
Accounting Firm's determination having occurred and without the consent of
Spinco. Notwithstanding the filing of such Tax Return, (x) the Independent
Accounting Firm shall make a determination with respect to any such disputed
item, and (y) the amount of Taxes determined to be due with respect to such Tax
Return or, if applicable, determined to be properly set forth on the Statement
related to such Tax Return, shall (for purposes of Section 6(e) hereof or
Section 6(f) hereof, respectively) be the amount of Taxes that would have been
due on such Tax Return or, if applicable, be the amount of Taxes that would be
properly set forth on the Statement related to such Tax Return, after giving
effect to the Independent Accounting Firm's determination.
(e) In the case of each Tax Return described in Section
6(a) or 6(b) hereof, not later than five calendar days before the due date for
payment of Taxes with respect to such Tax Return, Spinco shall cause to be paid
to EVI an amount equal to
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the greater of (x) the total amount of Taxes shown as due on such Tax Return as
prepared or caused to be prepared by Spinco (net of any payments made prior to
the Effective Date in respect of such Taxes, whether as estimated Taxes or
otherwise) or (y) in the event EVI has timely proposed that changes be made to
such Tax Return, the total amount of Taxes that is shown as due on such Tax
Return after giving effect to the resolution of disputed items by EVI, the
parties' mutual agreement or the Independent Accounting Firm's determination
(net of any payments made prior to the Effective Date in respect of such Taxes,
whether as estimated Taxes or otherwise), as the case may be.
(f) In the case of each Tax Return described in Section
6(c) hereof, not later than five calendar days before the due date for payment
of Taxes with respect to such Tax Return, Spinco shall pay to EVI an amount
equal to the sum of (x) the lesser of (A) the total amount of Taxes shown on
the Statement related to such Tax Return as being the responsibility of Spinco
under Section 2 hereof (net of any payments made prior to the Effective Date in
respect of such Taxes, whether as estimated Taxes or otherwise) or (B), in the
event Spinco has timely proposed that changes be made to such Statement, the
total amount of Taxes that are set forth or would be set forth on such
Statement as being the responsibility of Spinco under Section 2 hereof after
giving effect to the parties' mutual agreement reached or the Independent
Accounting Firm's determination made at least five calendar days before the due
date for payment of Taxes with respect to such Tax Return (net of any payments
made prior to the Effective Date in respect of such Taxes, whether as estimated
Taxes or otherwise), as the case may be, and (y) one-half of the amount of any
EVI Costs incurred by EVI in
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connection with the preparation of such Tax Return and the Statement related
thereto.
(g) To the extent, if any, that Spinco pays a greater
amount of Taxes to EVI pursuant to the provisions of Section 6(e) or 6(f)
hereof than is ultimately determined by the Independent Accounting Firm to be
owed by Spinco, EVI shall pay such excess to Spinco not later than five
calendar days after receiving the Independent Accounting Firm's determination
thereof.
7. Tax Contests.
(a) Spinco shall have the sole and exclusive right (at
its sole risk, cost and expense) to control the conduct of any audit,
examination, investigation or administrative, court or other proceeding which
could, if pursued successfully, result in or give rise to a claim for
indemnification of any Tax Indemnitee by Spinco under this Agreement with
respect to any Tax described in Section 2(a)(i) hereof. Spinco shall, however,
promptly notify EVI if, in connection with any such audit, examination,
investigation or administrative, court or other proceeding, any governmental
authority makes (or proposes to make) any assessment or adjustment with respect
to, or takes (or proposes to take) any action against, GulfMark or Ercon, which
assessment, adjustment, or action could affect any Tax Indemnitee after the
Effective Date (including, without limitation, any action taken or proposed to
be taken by a governmental authority with respect to the collection from
GulfMark or Ercon of any part of a deficiency under Treasury Regulation
Section 1.1502-6 or any similar provision under any applicable foreign, state
or local law).
(b) (i) If a party hereto or any of its Affiliates
receives any written or oral communication with respect to any question,
adjustment, assessment or pending
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or threatened audit, examination, investigation, or administrative, court or
other proceeding which, if pursued successfully, could result in or give rise
to, or could reasonably be expected to result in or give rise to, a claim for
indemnification of any Tax Indemnitee by Spinco under this Agreement with
respect to any Tax described in Section 2(a) hereof ("EVI Tax Claim"), then
such party shall promptly notify the other parties hereto in writing ("Tax
Claim Notice") of such EVI Tax Claim.
(ii) EVI shall take or cause to be taken such
action in connection with contesting such EVI Tax Claim as Spinco shall
reasonably request in writing from time to time, including the retention of
counsel and experts as designated by Spinco (it being understood and agreed by
the parties hereto that the terms of any such retention shall expressly provide
that Spinco shall be solely responsible for the payment of any and all fees and
disbursements of such counsel and any experts) and the execution of powers of
attorney, provided that:
(A) within 30 calendar days after Spinco
receives or delivers, as the case may be, the Tax Claim Notice
relating to such EVI Tax Claim (or such earlier date that any
payment of the Taxes claimed is due from any Tax Indemnitee,
but in no event sooner than five calendar days after Spinco
receives or delivers such Tax Claim Notice), Spinco shall have
notified EVI in writing ("Election Notice") that Spinco does
not dispute its indemnity obligation under this Agreement and
that Spinco elects to contest, and to control the defense or
prosecution of, such EVI Tax Claim at its sole risk and sole
cost and expense; and
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(B) if EVI is requested by Spinco to pay
or cause to be paid the Tax claimed and ▇▇▇ for a refund,
Spinco shall have advanced to EVI on an interest-free basis,
the total amount of the Tax claimed; and
(C) Spinco shall reimburse EVI for any
EVI Costs resulting from any such request by Spinco, provided
such EVI Costs shall have been incurred with the prior written
approval of Spinco;
provided further, however, that if a Financial Default has occurred and is
continuing at the time any Election Notice has been delivered by Spinco to EVI,
or occurs at any time after any Election Notice has been delivered by Spinco to
EVI, then EVI may (but shall not be required to) elect to exercise control of
such EVI Tax Claim as provided in Section 7(b)(v) hereof.
(iii) Subject to the provisions of Sections
7(b)(ii) and (v) hereof, Spinco shall have the right to defend or prosecute, at
the sole cost, expense and risk of Spinco, such EVI Tax Claim by all
appropriate proceedings, which proceedings shall be defended or prosecuted
diligently by Spinco to a Final Determination; provided, however, that Spinco
shall not, without EVI's prior written consent, enter into any compromise or
settlement of such EVI Tax Claim that would adversely affect any of the Tax
Indemnitees. So long as Spinco is diligently defending or prosecuting such EVI
Tax Claim, EVI shall provide or cause to be provided to Spinco any information
reasonably requested by Spinco that relates to such EVI Tax Claim, and shall
otherwise cooperate with Spinco and its representatives in good faith in order
to contest effectively such EVI Tax Claim. Spinco shall keep EVI informed of
all developments and events relating to any such EVI Tax Claim (including,
without limitation, providing
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to EVI copies of all written materials pertaining to any such EVI Tax Claim),
and EVI or its authorized representatives shall be entitled, at EVI's expense,
to participate in all conferences, meetings and proceedings relating to any
such EVI Tax Claim.
(iv) If, after actual receipt by EVI of the total
amount of a Tax claimed (pursuant to a EVI Tax Claim) that has been advanced by
Spinco pursuant to Section 7(b)(ii)(B) hereof, the extent of the liability of
Spinco hereunder with respect to such Tax claimed has been established by a
Final Determination, EVI shall promptly pay or cause to be paid to Spinco any
refund actually received by or actually credited to any Tax Indemnitee with
respect to such Tax (together with any interest paid or credited thereon by the
taxing authority and any recovery of legal fees from such taxing authority
related thereto), except to the extent that any amounts are then owed by Spinco
to any Tax Indemnitee under the provisions of this Agreement, the Distribution
Agreement or the Merger Agreement.
(v) With respect to any EVI Tax Claim, if:
(A) Spinco fails to deliver an Election
Notice to EVI within the period provided in Section
7(b)(ii)(A) hereof or, after delivery of such Election Notice,
Spinco fails to comply with the provisions of Section
7(b)(ii)(B) hereof or fails to diligently defend or prosecute
such EVI Tax Claim to a Final Determination; or
(B) a Financial Default has occurred and
is continuing at the time any Election Notice has been
delivered by Spinco to EVI; or
(C) a Financial Default occurs at any
time after any Election Notice has been delivered by Spinco;
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then in any such event, EVI shall at any time thereafter have the right (but
not the obligation), at its election and in its sole and absolute discretion,
to defend or prosecute, at the sole cost, expense and risk of Spinco, such EVI
Tax Claim; provided, however, that at any time after delivery of written notice
of such election to Spinco and before a Final Determination with respect to
such EVI Tax Claim, EVI shall cause such defense or prosecution to be
discontinued upon EVI's receipt of payment in immediately available funds from
Spinco of the full amount of all Taxes claimed by the taxing authority, plus
the full amount of all EVI Costs incurred on or before such discontinuance in
connection with such defense or prosecution. EVI shall have full control of
such defense or prosecution and such proceedings, including any settlement or
compromise thereof. If requested by EVI, Spinco shall cooperate, and shall
cause its Affiliates to cooperate, in good faith with EVI and its authorized
representatives in order to contest effectively such EVI Tax Claim. Spinco may
attend, but not participate in or control, any defense, prosecution, settlement
or compromise of any EVI Tax Claim controlled by EVI pursuant to this Section
7(b)(v) and shall bear its own costs and expenses with respect thereto. In the
case of any EVI Tax Claim that is defended or prosecuted by EVI, EVI shall,
from time to time, be entitled to current payment from Spinco with respect to
EVI Costs incurred in connection with such defense or prosecution.
(vi) In the case of any EVI Tax Claim that is
defended or prosecuted to a Final Determination by Spinco pursuant to the terms
of this Section 7(b), Spinco shall pay to EVI in immediately available funds
the full amount of any Taxes arising or resulting from or incurred in
connection with such EVI Tax Claim
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within 10 calendar days after such Final Determination. In the case of any EVI
Tax Claim that is defended or prosecuted to a Final Determination by EVI
pursuant to the terms of this Section 7(b), Spinco shall pay to EVI in
immediately available funds the full amount of any Taxes arising or resulting
from or incurred in connection with such EVI Tax Claim, together with the EVI
Costs incurred in connection therewith that have not theretofore been paid by
Spinco to EVI, within 10 calendar days after such Final Determination. In the
case of any EVI Tax Claim not covered by the two preceding sentences, Spinco
shall pay to EVI in immediately available funds the full amount of any Taxes
arising or resulting from or incurred in connection with such EVI Tax Claim at
least 10 calendar days before the date payment of such Taxes is due from any
Tax Indemnitee, except where payment of such Taxes is sooner required under the
provisions of Section 7(b)(ii) hereof or the first sentence of Section 7(b)(v)
hereof, in which case payment of such Taxes (and EVI Costs to the extent
provided in the first sentence of Section 7(b)(v) hereof) shall be made within
the time and in the manner provided in Section 7(b)(ii) hereof or the first
sentence of Section 7(b)(v) hereof, respectively.
(c) Spinco shall promptly notify EVI in writing upon
receipt by Spinco or any of its Affiliates of any written or oral communication
with respect to any question, adjustment, assessment, pending or threatened
audit, examination, investigation, or administrative, court or other proceeding
which could, if pursued successfully, result in or give rise to a claim for
indemnification of Spinco by EVI under this Agreement ("Spinco Tax Claim").
EVI shall have the sole and exclusive right at EVI's expense to represent
GulfMark's and Ercon's interests in any audit, examination,
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investigation or administrative, court or other proceeding relating to a Spinco
Tax Claim, to employ counsel of its choice and otherwise to control the conduct
of such audit, examination, investigation or proceeding in such manner as it
deems fit in its sole and absolute discretion, including, without limitation,
any settlement, compromise or other disposition thereof. Spinco agrees that
upon request from EVI, Spinco will cooperate, and will cause its personnel,
Affiliates and personnel of its Affiliates to cooperate fully with EVI and its
counsel in connection with the preparation for, or defense, prosecution,
settlement or compromise of, any such audit, examination, investigation or
proceeding pertaining or attributable to GulfMark or Ercon with respect to any
Post-Closing Period.
8. Cooperation. Spinco shall grant or cause to be granted to EVI
or EVI's representatives access at all reasonable times to all of the
information, books and records relating to GulfMark, Ercon or any GulfMark
Company within its possession or control (including, without limitation, Tax
work papers, Tax Returns and correspondence with Tax authorities), including
the right to take extracts therefrom and make copies thereof at EVI's expense,
to the extent reasonably necessary in connection with Taxes to which this
Agreement, the Distribution Agreement or the Merger Agreement applies and shall
furnish the assistance and cooperation of such personnel of Spinco and its
Affiliates as EVI may reasonably request in connection therewith. EVI shall
grant or cause to be granted to Spinco or Spinco's representatives access at
all reasonable times to all of the information, books and records relating to
GulfMark, Ercon or any GulfMark Company within EVI's possession or control for
periods ending on or before the Effective Date (including, without limitation,
Tax work
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papers, Tax Returns and correspondence with Tax authorities), including the
right to take extracts therefrom and make copies thereof at Spinco's expense,
to the extent reasonably necessary in connection with Taxes to which this
Agreement, the Distribution Agreement or the Merger Agreement applies and shall
furnish the assistance and cooperation of such personnel of GulfMark and Ercon
as Spinco may reasonably request in connection therewith. Without limiting the
generality of the foregoing provisions of this Section 8, EVI and Spinco shall
cooperate and consult in good faith with each other during the course of the
preparation of foreign, federal, state and local income Tax Returns of or
including GulfMark, Ercon or any GulfMark Company for periods including, or
ending on or before, the Effective Date and for periods after the Effective
Date, and to the extent appropriate, shall use their respective best efforts to
agree on the inclusion of items of income, deduction, gain, loss and credit for
each of such periods so as to properly reflect such items attributable to such
periods. Any information obtained by a party hereto or its Affiliates from
another party hereto or its Affiliates in connection with any Tax matters to
which this Agreement, the Distribution Agreement or the Merger Agreement
applies shall be kept confidential, except as may be otherwise necessary in
connection with the filing of Tax Returns or claims for refund or in conducting
an audit or other proceeding. Except as expressly provided otherwise in this
Agreement, each of EVI and Spinco shall bear and pay its own costs and expenses
incurred in connection with performing its obligations under this Agreement.
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9. Termination of Tax Sharing Agreements. Except as expressly
provided in this Agreement, any and all Tax allocation agreements, Tax sharing
agreements, intercompany agreements or other agreements or arrangements,
between either of GulfMark or Ercon and Spinco and/or any of Spinco's
Affiliates and relating to any Tax matters shall be terminated with respect to
GulfMark and Ercon as of the day before the Effective Date, and from and after
the Effective Date, neither GulfMark nor Ercon shall be obligated to make any
payment to Spinco or any of Spinco's Affiliates pursuant to any of such
agreements or arrangements.
10. Survival. Anything to the contrary in this Agreement, the
Distribution Agreement or the Merger Agreement notwithstanding, the parties'
representations, warranties, covenants, agreements, rights and obligations with
respect to any Tax covered by this Agreement, the Distribution Agreement or the
Merger Agreement shall survive the Effective Date and shall not terminate until
20 calendar days after the expiration of all statutes of limitations (including
any and all extensions thereof) applicable to such Tax, or the assessment
thereof; provided, however, that:
(a) any Tax Indemnitee's right to receive indemnity in
respect of any Tax as to which notice thereof has been delivered to,
or received from, Spinco prior to the termination of any
representation, warranty, covenant, agreement or obligation of Spinco
relating to such Tax, and
(b) any Tax Indemnitee's right to initially assert a
claim for indemnification in respect of a breach of any
representation, warranty, covenant, agreement or obligation of Spinco
with respect to any Tax covered by this Agreement,
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shall survive such termination.
11. Arbitration. Any disputes, claims or controversies connected
with, arising out of, or related to, this Agreement (other than any such
dispute, claim or controversy with respect to which the procedure or mechanism
for resolving the same is otherwise provided in this Agreement, which dispute,
claim or controversy shall be resolved in accordance with such procedure or
mechanism) and the rights and obligations created herein, or the breach,
validity, existence or termination hereof, shall be settled by arbitration to
be conducted in accordance with the Commercial Rules of Arbitration of the
American Arbitration Association, except as such Commercial Rules may be
changed by this Section 11. The disputes, claims or controversies shall be
decided by three independent arbitrators (that is, arbitrators having no
substantial economic or other material relationship with the parties), one to
be appointed by Spinco and one to be appointed by EVI within 14 days following
the submission of the claim to the parties hereto and the third to be appointed
by the two so appointed within 5 days. Should either party refuse or neglect
to join in the timely appointment of the arbitrators, the other party shall be
entitled to select both arbitrators. Should the two arbitrators fail timely to
appoint a third arbitrator, either party may apply to the Chief Judge of the
United States District Court for the Southern District of Texas to make such
appointment. The arbitrators shall have 90 days after the selection of the
third arbitrator within which to allow discovery, hear evidence and issue their
decision or award and shall in good faith attempt to comply with such time
limits; provided, however, if two of the three arbitrators believe additional
time is necessary to reach a decision, they may notify the parties and extend
the time to reach a decision in 30-day
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increments, but in no event to exceed an additional 90 days. Discovery of
evidence shall be conducted expeditiously by the parties, bearing in mind the
parties desire to limit discovery and to expedite the decision or award of the
arbitrators at the most reasonable cost and expense of the parties. Judgment
upon an award rendered pursuant to such arbitration may be entered in any court
having jurisdiction, or application may be made to such court for a judicial
acceptance of the award, and an order of enforcement, as the case may be. The
place of arbitration shall be Houston, Texas. The decision of the arbitrators,
or a majority thereof, made in writing, shall be final and binding upon the
parties hereto as to the questions submitted, and each party shall abide by
such decision. Notwithstanding the provisions of this Section 11, no party
shall be prohibited from seeking injunctive relief pending the completion of
any arbitration. The costs and expenses of the arbitration proceeding,
including the fees of the arbitrators and all costs and expenses, including
legal fees and witness fees, incurred by the prevailing party, shall be borne
by the losing party.
Solely for purposes of injunctive relief, orders in aid of arbitration
and entry of the arbitrator's award:
(a) each of the parties hereto irrevocably consents to
the non-exclusive jurisdiction of, and venue in, any state court
located in ▇▇▇▇▇▇ County, Texas or any federal court sitting in the
Southern District of Texas in any suit, action or proceeding seeking
injunctive relief, arising out of or relating to this Agreement or any
of the other agreements contemplated hereby and any other court in
which a matter that may result in a claim for indemnification
hereunder by a Tax Indemnitee may be brought with respect to any claim
for indemnification by
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a Tax Indemnitee;
(b) each of the parties hereto waives, to the fullest
extent permitted by law, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding seeking
injunctive relief, orders in aid of arbitration or entry or an
arbitration order arising out of or relating to this Agreement or any
of the other agreements contemplated hereby brought in any state court
located in ▇▇▇▇▇▇ County, Texas or any federal court sitting in the
Southern District of Texas or any other court in which a matter that
may result in a claim for indemnification hereunder by a Tax
Indemnitee may be brought with respect to any claim for
indemnification by a Tax Indemnitee, and further irrevocably waives
any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum; and
(c) each of the parties hereto irrevocably designates,
appoints and empowers CT Corporation System, Inc. and any successor
thereto as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and in respect of its property,
service of any and all legal process, summons, notices and documents
which may be served in any suit, action or proceeding arising out of
or relating to this Agreement or any of the other agreements
contemplated hereby.
12. Conflict. In the event of a conflict between the provisions
of this Agreement and the provisions of the Distribution Agreement or the
Merger Agreement, the provisions of this Agreement shall control.
13. Notices. All notices, requests, demands and other communications required
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or permitted hereunder shall be in writing and shall be deemed given if
actually received, if delivered personally or if delivered by courier or
overnight delivery service with proof of delivery or if delivered by certified
or registered mail, postage prepaid, return receipt requested, addressed in all
of the foregoing cases as set forth below, or if delivered by facsimile at the
facsimile number set forth below, with confirmation delivered promptly
thereafter (in a manner as previously set forth in this sentence):
If to EVI or GulfMark:
Energy Ventures, Inc.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Duroc-▇▇▇▇▇▇
If by facsimile, to: (▇▇▇) ▇▇▇-▇▇▇▇
If to Spinco:
GulfMark Offshore, Inc.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If by facsimile, to: (▇▇▇) ▇▇▇-▇▇▇▇
14. Assignability and Parties in Interest. This Agreement shall not
be assignable by either of the parties hereto or any successor or permitted
assignee, without the consent of the other party (such consent not unreasonably
to be withheld), except that after the Effective Date EVI or any successor or
permitted assignee may assign its rights, including, without limitation, its
rights to indemnification, under this Agreement to one or more Affiliates, and
upon each such assignment such Affiliate or Affiliates shall be deemed to
succeed to the rights of EVI hereunder, provided, however,
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that any assignment shall not relieve EVI of liability hereunder. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assignees.
15. Governing Law. This Agreement shall be governed and construed
and enforced in accordance with the internal laws, and not the laws pertaining
to choice or conflicts of laws, of the State of Texas.
16. Counterparts. This Agreement may be executed simultaneously
in one or more counterparts, each of which shall be deemed an original, but all
of which shall constitute but one and the same instrument.
17. Complete Agreement; Time is of the Essence. This Agreement, the
Distribution Agreement and the Merger Agreement and the exhibits and schedules
hereto and thereto contain the entire agreement between the parties hereto and
thereto with respect to the transactions contemplated hereby and thereby and
supersede all previous oral and written and all contemporaneous oral
negotiations, commitments, representations, writings and understandings. Time
is of the essence hereof.
18. Modifications, Amendments and Waivers. No term or provision
of this Agreement may be amended, waived or otherwise modified without the
prior written consent of each of the parties hereto. The failure of either
party at any time or times to require performance of any term or provision
hereof shall in no manner affect the right to enforce such term or provision.
No waiver by either party of compliance with any term, provision or covenant,
or of the breach of any term, provision, covenant, representation or warranty,
contained in this Agreement, whether by conduct or otherwise, in any one or
more instances, shall be deemed to be or construed as a
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further or continuing waiver of the breach of any such term, provision,
covenant, representation or warranty, or a waiver of compliance with any other
term, provision or covenant or of the breach of any other term, provision,
covenant, representation or warranty.
19. Interpretation. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
20. Severability. Any provision of this Agreement which is
invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability, without affecting in any way the remaining provisions hereof
in such jurisdiction or rendering that or any other provision of this Agreement
invalid, illegal or unenforceable in any other jurisdiction.
21. Remedies Cumulative. Except as otherwise provided in Section
12 hereof, the remedies provided in this Agreement, the Distribution Agreement
and the Merger Agreement shall be cumulative and shall not preclude the
assertion by any party hereto or third party beneficiary hereof of any other
rights or the seeking of any other remedies against any other party hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
GULFMARK INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Printed Title: EXEC. VICE PRESIDENT
"GULFMARK"
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GULFMARK OFFSHORE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Printed Title: EXEC. VICE PRESIDENT
"SPINCO"
ENERGY VENTURES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Printed Title: VICE PRESIDENT
"EVI"
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SCHEDULE A
GULFMARK COMPANIES
Name of Subsidiary or Organization State or Country of Incorporation
---------------------------------- ---------------------------------
GulfMark Offshore, Inc. Delaware
Gulf Offshore N.S. Ltd. United Kingdom
GulfMark North Sea Ltd. United Kingdom
▇▇▇▇▇▇ Operating Ltd. United Kingdom
Gulf Marine Far East PTE, Ltd. Singapore
Gulf Offshore Marine International, Inc. Panama
Gulf Offshore Far East Inc. Panama
SeaMark, Ltd. Inc. Panama
Gulf Marine do Brazil, Ltda. Brazil
Semaring Logistics (M) Sdn. Bhd. Malaysia
Chalvoyage (M) Sdn. Bhd. Malaysia
Gulf Offshore Shipping Services Inc. Panama
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