2,000,000 Shares GulfMark Offshore, Inc. Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
2,000,000 Shares
GulfMark Offshore, Inc.
Common Stock
December 4, 2006
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Introductory. GulfMark Offshore, Inc., a Delaware corporation (the “Company”), proposes to
issue and sell to ▇▇▇▇▇▇▇▇▇ & Company, Inc. (the “Underwriter”) an aggregate of 2,000,000 shares of
its common stock, par value $0.01 per share (the “Shares”). The 2,000,000 Shares to be sold by the
Company are called the “Firm Shares.” In addition, the Company has granted to the Underwriter an
option to purchase up to an additional 300,000 Shares as provided in Section 2. The additional
300,000 Shares to be sold by the Company pursuant to such option are collectively called the
"Optional Shares.” The Firm Shares and, if and to the extent such option is exercised, the
Optional Shares are collectively called the “Offered Shares.”
The Company has prepared and filed with the Securities and Exchange Commission (the
"Commission”) a shelf registration statement on Form S-3 (File No. 333-133563), and has prepared a
base prospectus (the “Base Prospectus”) to be used in connection with the public offering and sale
of the Offered Shares. Such registration statement, as amended, including the financial
statements, exhibits and schedules thereto, in the form in which it was declared effective by the
Commission under the Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the “Securities Act”), including all documents incorporated or deemed to
be incorporated by reference therein and any information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430B under the Securities Act or the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange
Act”), is called the “Registration Statement.” The prospectus supplement to be filed promptly
after the date hereof describing the Offered Shares and the offering thereof (the “Prospectus
Supplement”), together with the Base Prospectus, in the form first used by the Underwriter to
confirm sales of the Offered Shares or in the form first made available to the Underwriter by the
Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act, is referred
to herein the “Prospectus.” As used herein, “Applicable Time” is 6:00 p.m. (New York time) on
December 4, 2006. As used herein, “free writing prospectus” has the meaning set forth in Rule 405
under the Securities Act, and “Time of Sale Prospectus” means the Base Prospectus, as amended or
supplemented immediately prior to the Applicable Time, together with the free writing prospectuses,
if any, identified on Exhibit A hereto. As used herein, the terms “Registration Statement,” “Base
Prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents incorporated
and deemed to be incorporated by reference therein. All references in this Agreement to amendments
or supplements to the Registration Statement, the Base Prospectus, the Time of Sale Prospectus or
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the Prospectus shall be deemed to mean and include the filing of any document under the
Exchange Act which is or is deemed to be incorporated by reference in the Registration Statement,
the Base Prospectus, the Time of Sale Prospectus or the Prospectus, as the case may be. All
references in this Agreement to (i) the Registration Statement, the Base Prospectus, the Time of
Sale Prospectus or the Prospectus, or any amendments or supplements to any of the foregoing, shall
include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System (“▇▇▇▇▇”) and (ii) the Prospectus shall be deemed to include the
"electronic Prospectus” provided for use in connection with the offering of the Offered Shares as
contemplated by Section 3(n) of this Agreement. All references in this Agreement to financial
statements and schedules and other information which are “contained,” “included,” “set forth” or
"stated” in the Registration Statement, the Base Prospectus, the Time of Sale Prospectus or the
Prospectus (and all other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed to be incorporated
by reference in the Registration Statement, the Base Prospectus, the Time of Sale Prospectus or the
Prospectus, as the case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, the Base Prospectus, the Time of Sale Prospectus or the Prospectus,
as the case may be, and all references in this Agreement to amendments or supplements to the
Registration Statement, the Base Prospectus, the Time of Sale Prospectus or the Prospectus shall be
deemed to mean and include the filing of any document under the Exchange Act which is or is deemed
to be incorporated by reference in the Registration Statement, the Base Prospectus, the Time of
Sale Prospectus or the Prospectus, as the case may be.
The Company hereby confirms its agreements with the Underwriter as follows:
Section 1. Representations and Warranties of the Company.
The Company hereby represents and warrants to the Underwriter, as of the date of this
Agreement, as of the First Closing Date (as hereinafter defined) and as of each Option Closing
Date (as hereafter defined), if any, and covenants with the Underwriter, as follows:
(a) Compliance with Registration Requirements. The Registration Statement has been
declared effective by the Commission under the Securities Act. The Company has complied to the
Commission’s satisfaction with all requests of the Commission for additional or supplemental
information. No stop order suspending the effectiveness of the Registration Statement is in
effect and no proceedings for such purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated or threatened by the Commission.
The Prospectus when filed complied in all material respects with the Securities Act
and, if filed by electronic transmission pursuant to ▇▇▇▇▇ (except as may be permitted by
Regulation S-T under the Securities Act), was identical to the copy thereof delivered to the
Underwriter for use in connection with the offer and sale of the Offered Shares. The
Registration Statement and any post-effective amendment thereto, at the time it became
effective and at all subsequent times prior to completion of the sale of all the Offered Shares
as contemplated hereby, complied and will comply in all material respects with the Securities
Act and did not 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. As of the Applicable Time, the Time of Sale Prospectus did not, and at the time of
each sale of the Offered Shares and at the First Closing Date (as defined in Section 2), the
Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable,
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will not, contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading. The Prospectus, as amended or supplemented, as of its date and at
all subsequent times prior to the completion of the sale of all the Offered Shares as
contemplated hereby, did not and will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The representations and
warranties set forth in the three immediately preceding sentences do not apply to statements in
or omissions from the Registration Statement or any post-effective amendment thereto, or the
Prospectus or Time of Sale Prospectus or any amendments or supplements thereto, made in
reliance upon and in conformity with information relating to the Underwriter furnished to the
Company in writing by the Underwriter expressly for use therein, it being understood and agreed
that the only such information furnished by the Underwriter to the Company consists of the
information described in Section 8(b) below. There are no contracts or other documents
required to be described in the Time of Sale Prospectus or the Prospectus or to be filed as
exhibits to the Registration Statement which have not been described or filed as required.
The Company meets, and at the time the Registration Statement was originally declared
effective and at the time the Company’s Annual Report on Form 10-K for the year ended December
31, 2005 (the “Annual Report”) was filed with the Commission the Company met, the applicable
requirements for use of Form S-3 under the Securities Act. The Company meets the requirements
for use of Form S-3 under the Securities Act referenced in Conduct Rule 2710(b)(7)(C)(i) of the
National Association of Securities Dealers Inc. (the “NASD”).
The documents incorporated or deemed to be incorporated by reference in the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and will comply in all
material respects with the applicable requirements of the Exchange Act, and, when read together
with the other information in the Prospectus, at the time the Registration Statement and any
amendments thereto become effective and at the First Closing Date and the applicable Option
Closing Date, as the case may be, will not 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 facts
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
The Company is not an “ineligible issuer” (as defined in Rule 405) in connection with the
offering of the Offered Shares pursuant to Rules 164, 405 and 433 under the Securities Act.
Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under
the Securities Act has been, or will be, filed with the Commission in accordance with the
requirements of the Securities Act. Each free writing prospectus that the Company has filed,
or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared
by or on behalf of or used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act, and each such free writing
prospectus, as of its issue date and at all subsequent times through the completion of the
public offer and sale of the Offered Shares did not, does not and will not include any
information that conflicted, conflicts with or will conflict with the information contained in
the Registration Statement, the Time of Sale Prospectus or the Prospectus, including any
document incorporated by reference therein. Except for the free writing prospectuses, if any,
identified in Exhibit A hereto, the Company has not prepared, used or referred to, and will
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not, without the Underwriter’s prior consent, prepare, use or refer to, any free writing
prospectus.
(b) Offering Materials Furnished to Underwriter. The Company has delivered to the
Underwriter one complete manually signed copy of the Registration Statement and each amendment
thereto and of each consent and certificate of experts filed as a part thereof, and copies of
the Time of Sale Prospectus, the Prospectus, as amended or supplemented, and any free writing
prospectus reviewed and consented to by the Underwriter, in such quantities and at such places
as the Underwriter has reasonably requested.
(c) Distribution of Offering Material By the Company. The Company has not distributed and
will not distribute, prior to the later of (i) the expiration or termination of the option
granted to the Underwriter in Section 2 and (ii) the completion of the Underwriter’s
distribution of the Offered Shares, any offering material in connection with the offering and
sale of the Offered Shares other than the Time of Sale Prospectus, the Prospectus, any free
writing prospectus reviewed and consented to by the Underwriter or the Registration Statement.
(d) The Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by, and is a valid and binding agreement of, the Company, enforceable in accordance
with its terms, except as rights to indemnification hereunder may be limited by applicable law
and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and remedies of creditors
or by general equitable principles.
(e) Authorization of the Offered Shares. The Offered Shares have been duly authorized for
issuance and sale pursuant to this Agreement and, when issued and delivered by the Company
pursuant to this Agreement, will be validly issued, fully paid and nonassessable, and the
issuance and sale of the Offered Shares is not subject to any preemptive rights, rights of
first refusal or other similar rights to subscribe for or purchase the Offered Shares. The
Offered Shares will conform to the description thereof in the Time of Sale Prospectus and the
Prospectus.
(f) No Applicable Registration or Other Similar Rights. There are no persons with
registration or other similar rights to have any equity or debt securities registered for sale
under the Registration Statement or included in the offering contemplated by this Agreement.
(g) No Material Adverse Change. Except as otherwise disclosed in the Time of Sale
Prospectus, subsequent to the respective dates as of which information is given in Time of Sale
Prospectus: (i) there has been no material adverse change, or any development that could
reasonably be expected to result in a material adverse change, in the condition, financial or
otherwise, or in the earnings, business, vessel fleet, operations or prospects, whether or not
arising from transactions in the ordinary course of business, of the Company and its
subsidiaries, considered as one entity (any such change is called a “Material Adverse Change”);
(ii) the Company and its subsidiaries, considered as one entity, have not incurred any material
liability or obligation, indirect, direct or contingent, not in the ordinary course of business
nor entered into any material transaction or agreement not in the ordinary course of business;
and (iii) there has been no dividend or distribution of any kind declared, paid or made by the
Company or, except for dividends paid to the Company or other subsidiaries, any of its
subsidiaries on any class of capital stock or repurchase or redemption by the Company or any of
its subsidiaries of any class of capital stock.
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(h) Independent Accountants. Each of UHY ▇▇▇▇ Frankfort ▇▇▇▇▇ & ▇▇▇▇ CPAs, LLP and Ernst
& Young LLP, who have expressed their opinion with respect to certain of the financial
statements (which term as used in this Agreement includes the related notes thereto) filed with
the Commission as a part of the Registration Statement and included in the Prospectus and Time
of Sale Prospectus (each, an “Applicable Prospectus” and collectively, the “Applicable
Prospectuses”), are (i) independent public or certified public accountants as required by the
Securities Act and the Exchange Act, (ii) in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X and (iii) a
registered public accounting firm as defined by the Public Company Accounting Oversight Board
(the “PCAOB”) whose registration has not been suspended or revoked and who has not requested
such registration to be withdrawn.
(i) Preparation of the Financial Statements. The financial statements filed with the
Commission as a part of the Registration Statement and included in the Time of Sale Prospectus
and the Prospectus present fairly the consolidated financial position of the Company and its
subsidiaries as of and at the dates indicated and the results of their operations and cash
flows for the periods specified. Such financial statements have been prepared in conformity
with generally accepted accounting principles as applied in the United States applied on a
consistent basis throughout the periods involved, except as may be expressly stated in the
related notes thereto. No other financial statements or supporting schedules are required to
be included in the Registration Statement or any Applicable Prospectus. The financial data set
forth in each Applicable Prospectus under the captions “Selected Consolidated Financial and
Operating Data” and “Capitalization” fairly present the information set forth therein on a
basis consistent with that of the audited financial statements contained in the Registration
Statement and each Applicable Prospectus. The Company’s ratios of earnings to fixed charges
set forth in the Prospectus and in Exhibit 12.1 to the Registration Statement have been
calculated in compliance with Item 503(d) of Regulation S-K under the Securities Act. No
person who has been suspended or barred from being associated with a registered public
accounting firm, or who has failed to comply with any sanction pursuant to Rule 5300
promulgated by the PCAOB, has participated in or otherwise aided the preparation of, or
audited, the financial statements, supporting schedules or other financial data filed with the
Commission as a part of the Registration Statement and included in any Applicable Prospectus.
(j) Company’s Accounting System. The Company and each of its subsidiaries make and keep
accurate books and records and maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance with management’s
general or specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted accounting principles
as applied in the United States and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. Except as described
in the Time of Sale Prospectus and the Prospectus, there has not been and is no material
weakness in the Company’s internal control over financial reporting (whether or not remediated)
and since December 31, 2005, there has been no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial reporting.
(k) Incorporation and Good Standing of the Company and its Subsidiaries. Each of the
Company and its subsidiaries has been duly incorporated or organized, as the case may be,
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and is validly existing as an entity in good standing under the laws of the jurisdiction
of its incorporation or organization and has the power and authority (corporate or other) to
own, lease and operate its properties and to conduct its business as described in each
Applicable Prospectus and, in the case of the Company, to enter into and perform its
obligations under this Agreement. Each of the Company and each of its subsidiaries is duly
qualified as a foreign entity to transact business and is in good standing, where applicable,
in each jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except any such failures to be in
good standing as would not, singly or in the aggregate, result in a Material Adverse Change.
All of the issued and outstanding capital stock or other equity or ownership interests of each
subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and
are owned by the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or adverse claim. The Company does not own or
control, directly or indirectly, any corporation, association or other entity other than (i)
the Designated Subsidiaries (as defined in Exhibit D hereto) and (ii) such other entities
which, when such entities are considered in the aggregate as a single subsidiary, would not
constitute a “significant subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X.
(l) Capitalization and Other Capital Stock Matters. The authorized, issued and
outstanding capital stock of the Company is as set forth in each Applicable Prospectus under
the caption “Capitalization” (other than for subsequent issuances, if any, pursuant to employee
benefit plans described in the Time of Sale Prospectus or upon the exercise of outstanding
options described in each Applicable Prospectus). The Shares (including the Offered Shares)
conform in all material respects to the description thereof contained in the Time of Sale
Prospectus. All of the issued and outstanding Shares have been duly authorized and validly
issued, are fully paid and nonassessable and have been issued in compliance with federal and
state securities laws. None of the outstanding Shares was issued in violation of any
preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase
securities of the Company. There are no authorized or outstanding options, warrants,
preemptive rights, rights of first refusal or other rights to purchase, or equity or debt
securities convertible into or exchangeable or exercisable for, any capital stock of the
Company or any of its subsidiaries other than those accurately described in each Applicable
Prospectus. The Company has not sold or issued any Shares during the six-month period
preceding the date of the Time of Sale Prospectus, including any sales pursuant to Rule 144A
under, or Regulations D or S of, the Securities Act other than Shares issued pursuant to
registration statements on Form S-8 relating to employee benefit plans, employee stock purchase
plans, qualified stock option plans or other employee compensation plans or pursuant to
outstanding options. The description of the Company’s stock option, stock bonus and other
stock plans or arrangements, and the options or other rights granted thereunder, set forth in
each Applicable Prospectus accurately and fairly presents the information required to be shown
with respect to such plans, arrangements, options and rights.
(m) Stock Exchange Listing. The Shares are registered pursuant to Section 12(b) of the
Exchange Act. The Company has submitted a listing application for the listing of the Offered
Shares on the NASDAQ Global Select Market, and the Offered Shares will be approved for listing
on the NASDAQ Global Select Market as of the First Closing Date, subject only to official
notice of issuance. The Company has taken no action designed to, or likely to have the effect
of, terminating the registration of the Shares under the Exchange Act or the delisting of any
of the outstanding Shares or the Offered Shares from the NASDAQ Global Select Market, nor has
the Company received any notification that the Commission or the NASDAQ Global Select Market is
contemplating terminating such registration or listing.
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(n) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals
Required. Neither the Company nor any of its subsidiaries is in violation of its charter or
by-laws, partnership agreement or operating agreement or similar organizational document, as
applicable, or is in default (or, with the giving of notice or lapse of time, would be in
default) (“Default”) under any indenture, mortgage, loan or credit agreement, note, contract,
franchise, lease or other instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound (including any credit agreement, indenture, pledge
agreement, security agreement or other instrument or agreement evidencing, guaranteeing,
securing or relating to indebtedness of the Company or any of its subsidiaries), or to which
any of the property or assets of the Company or any of its subsidiaries is subject (each, an
“Existing Instrument”), except for such Defaults as would not, individually or in the
aggregate, result in a Material Adverse Change. The Company’s execution, delivery and
performance of this Agreement, consummation of the transactions contemplated hereby and by each
Applicable Prospectus and the issuance and sale of the Offered Securities (i) have been duly
authorized by all necessary corporate action and will not result in any violation of the
provisions of the charter or by-laws, partnership agreement or operating agreement or similar
organizational document of the Company or any subsidiary, as applicable, (ii) will not conflict
with or constitute a breach of, or Default or a Debt Repayment Triggering Event (as defined
below) under, or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries pursuant to, or require the
consent of any other party to, any Existing Instrument and (iii) will not result in any
violation of any law, administrative regulation or administrative or court decree applicable to
the Company or any subsidiary. No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or regulatory authority or agency,
is required for the Company’s execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby and by each Applicable Prospectus, except
such as have been obtained or made by the Company and are in full force and effect under the
Securities Act, applicable state securities or blue sky laws and from the NASD. As used
herein, a “Debt Repayment Triggering Event” means any event or condition which gives, or with
the giving of notice or lapse of time would give, the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company
or any of its subsidiaries.
(o) No Material Actions or Proceedings. There are no legal or governmental actions, suits
or proceedings pending or, to the Company’s knowledge, threatened (i) against or affecting the
Company or any of its subsidiaries, (ii) which have as the subject thereof any officer or
director of, or property owned or leased by, the Company or any of its subsidiaries or (iii)
relating to environmental or discrimination matters, where in any such case there is a
reasonable possibility that such action, suit or proceeding might be determined adversely to
the Company, such subsidiary or such officer or director, and (A) any such action, suit or
proceeding, if so determined adversely, would reasonably be expected to result in a Material
Adverse Change or adversely affect the consummation of the transactions contemplated by this
Agreement or (B) any such action, suit or proceeding, if so determined adversely, would be
material in the context of the sale of Shares. No material labor dispute with the employees of
the Company or any of its subsidiaries, or with the employees of any principal supplier,
manufacturer, customer or contractor of the Company, exists or, to the Company’s knowledge, is
threatened or imminent.
(p) Intellectual Property Rights. The Company and its subsidiaries own or possess
sufficient trademarks, trade names, patent rights, copyrights, domain names, licenses,
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approvals, trade secrets and other similar rights (collectively, “Intellectual Property
Rights”) reasonably necessary to conduct their businesses as now conducted; and the expected
expiration of any of such Intellectual Property Rights would not result in a Material Adverse
Change. Neither the Company nor any of its subsidiaries has received, or expects to receive,
any notice of infringement or conflict with asserted Intellectual Property Rights of others.
The Company is not a party to or bound by any options, licenses or agreements with respect to
the Intellectual Property Rights of any other person or entity that are required to be set
forth in the Prospectus and are not described therein. (The Time of Sale Prospectus contains
in all material respects the same description of the matters set forth in the preceding
sentence contained in the Prospectus.) None of the technology employed by the Company or any
of its subsidiaries has been obtained or is being used by the Company or any of its
subsidiaries in violation of any contractual obligation binding on the Company or any of its
subsidiaries or, to the Company’s knowledge, any of its or its subsidiaries’ officers,
directors or employees or otherwise in violation of the rights of any persons.
(q) All Necessary Permits, etc. The Company and each of its subsidiaries possess such
valid and current certificates, authorizations or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct their respective
businesses, and neither the Company nor any such subsidiary has received, or has any reason to
believe that it will receive, any notice of proceedings relating to the revocation or
modification of, or non-compliance with, any such certificate, authorization or permit.
(r) Title to Properties. The Company and each of its subsidiaries has good and marketable
title to all of the real and personal property and other assets reflected as owned in the
financial statements referred to in Section 1(i) above, in each case free and clear of any
security interests, mortgages, liens, encumbrances, equities, adverse claims and other defects,
except for those provided for in the senior financing arrangements of the Company or its
subsidiaries on customary business terms and such as do not materially and adversely affect the
value of such property and do not materially interfere with the use made or proposed to be made
of such property by the Company or such subsidiary. The real property, improvements, equipment
and personal property held under lease by the Company or any subsidiary are held under valid
and enforceable leases, with such exceptions as are not material and do not materially
interfere with the use made or proposed to be made of such real property, improvements,
equipment or personal property by the Company or such subsidiary.
(s) Tax Law Compliance. The Company and its subsidiaries have timely filed all necessary
federal, state and foreign income and franchise tax returns and have timely paid all taxes
required to be paid by any of them and, if due and payable, any related or similar assessment,
fine or penalty levied against any of them except as may be being contested in good faith and
by appropriate proceedings and except, in the case of GulfMark North Sea Limited and Gulf
Offshore N.S. Limited, where statutory accounts have been filed and the expected tax liability
has been prepaid. The Company has made adequate charges, accruals and reserves in the
applicable financial statements referred to in Section 1(i) above in respect of all federal,
state and foreign income and franchise taxes for all periods as to which the tax liability of
the Company or any of its subsidiaries has not been finally determined.
(t) Company Not an “Investment Company". The Company has been advised of the rules and
requirements under the Investment Company Act of 1940, as amended (the “Investment Company
Act”). The Company is not, and will not be, either after receipt of payment for the Offered
Shares or after the application of the proceeds therefrom as described under “Use of Proceeds”
in each Applicable Prospectus, an “investment
8
company” within the meaning of Investment Company Act and will conduct its business in a
manner so that it will not become subject to the Investment Company Act.
(u) Insurance. Each of the Company and its subsidiaries are insured by recognized,
financially sound and reputable institutions with policies in such amounts and with such
deductibles and covering such risks as are generally deemed adequate and customary for their
businesses, including policies covering real and personal property owned or leased by the
Company and its subsidiaries against theft, damage, destruction, acts of vandalism and storms
and other acts of nature, and policies covering pollution caused by the Company or any of its
subsidiaries. The Company has no reason to believe that it or any subsidiary will not be able
(i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain
comparable coverage from similar institutions as may be necessary or appropriate to conduct its
business as now conducted and at a cost that would not result in a Material Adverse Change.
Neither of the Company nor any subsidiary has been denied any insurance coverage which it has
sought or for which it has applied.
(v) No Price Stabilization or Manipulation; Compliance with Regulation M. The Company has
not taken, directly or indirectly, any action designed to or that might be reasonably expected
to cause or result in stabilization or manipulation of the price of the Shares or any other
“reference security” (as defined in Rule 100 of Regulation M under the Exchange Act
(“Regulation M”)), whether to facilitate the sale or resale of the Offered Shares or otherwise,
and has taken no action which would directly or indirectly violate Regulation M. The Company
acknowledges that the Underwriter may engage in passive market making transactions in the
Offered Shares on the NASDAQ Global Select Market in accordance with Regulation M.
(w) Related Party Transactions. There are no business relationships or related-party
transactions involving the Company or any of its subsidiaries or any other person required to
be described in the Time of Sale Prospectus which have not been described as required.
(x) NASD Matters. All of the information provided to the Underwriter or to counsel for
the Underwriter by the Company, its officers and directors and the holders of any securities
(debt or equity) or options to acquire any securities of the Company in connection with
letters, filings or other supplemental information provided to NASD Regulation Inc. pursuant to
NASD Conduct Rule 2710 or 2720 is true, complete and correct.
(y) Parties to Lock-Up Agreements. Each of the persons and entities listed in Exhibit B,
which list comprises all of the directors and officers of the Company, has executed and
delivered to the Underwriter a lock-up agreement in the form of Exhibit C hereto. If any
additional persons shall become directors or officers of the Company prior to the end of the
Company Lock-up Period (as defined below), the Company shall cause each such person, prior to
or contemporaneously with their appointment or election as a director or officer of the
Company, to execute and deliver to the Underwriter an agreement in the form attached hereto as
Exhibit C.
(z) Statistical and Market-Related Data. The statistical, demographic and market-related data
included in the Registration Statement and each Applicable Prospectus are based on or derived
from sources that the Company believes to be reliable and accurate or represent the Company’s
good faith estimates that are made on the basis of data derived from such sources.
9
(aa) No Unlawful Contributions or Other Payments. Neither the Company nor any of its
subsidiaries nor, to the Company’s knowledge, any employee or agent of the Company or any
subsidiary, has made any contribution or other payment to any official of, or candidate for,
any federal, state or foreign office in violation of any law or of the character required to be
disclosed in the Registration Statement and each Applicable Prospectus.
(bb) Disclosure Controls and Procedures; Deficiencies in or Changes to Internal Control
Over Financial Reporting. The Company has established and maintains disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)), which (i) are designed
to ensure that material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company’s principal executive officer and its principal
financial officer by others within those entities, particularly during the periods in which the
periodic reports required under the Exchange Act are being prepared; (ii) have been evaluated
by management of the Company for effectiveness as of a date within 90 days prior to the earlier
of the date that the Company filed its most recent annual or quarterly report with the
Commission and the date of the Time of Sale Prospectus; and (iii) are effective in all material
respects to perform the functions for which they were established. Based on the most recent
evaluation of its disclosure controls and procedures, the Company is not aware of (A) any
significant deficiencies or material weaknesses in the design or operation of internal control
over financial reporting which are reasonably likely to adversely affect the Company’s ability
to record, process, summarize and report financial information or (B) any fraud, whether or not
material, that involves management or other employees who have a significant role in the
Company’s internal control over financial reporting.
(cc) Compliance with Environmental Laws. Except as described in each Applicable
Prospectus and except as would not, singly or in the aggregate, result in a Material Adverse
Change, (i) neither the Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or protection of human
health, the environment (including ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, “Hazardous Materials”) or to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials (collectively, “Environmental Laws”), (ii) the Company and its
subsidiaries have all permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (iii) there are no
pending or, to the knowledge of the Company, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the Company or any of
its subsidiaries and (iv) there are no events or circumstances that might reasonably be
expected to form the basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any Environmental Laws.
(dd) ERISA Compliance. The Company and its subsidiaries and any “employee benefit plan”
(as defined under the Employee Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (collectively, “ERISA”)) established or
maintained by the Company, its subsidiaries or their “ERISA Affiliates” (as
10
defined below) are in compliance in all material respects with ERISA. “ERISA Affiliate”
means, with respect to the Company or a subsidiary, any member of any group of organizations
described in Sections 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended,
and the regulations and published interpretations thereunder (the “Code”) of which the Company
or such subsidiary is a member. No “reportable event” (as defined under ERISA) has occurred or
is reasonably expected to occur with respect to any “employee benefit plan” established or
maintained by the Company, its subsidiaries or any of their ERISA Affiliates. No “employee
benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates, if such “employee benefit plan” were terminated, would have any “amount of unfunded
benefit liabilities” (as defined under ERISA), except for any such liabilities as would not,
singly or in the aggregate, have a Material Adverse Change. Neither the Company, its
subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to incur any
liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any
“employee benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee
benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified
and nothing has occurred, whether by action or failure to act, which would cause the loss of
such qualification.
(ee) Brokers. Except for the underwriting discounts and commissions payable to the
Underwriter as described in the Time of Sale Prospectus and the Prospectus, there is no broker,
finder or other party that is entitled to receive from the Company any brokerage or finder’s
fee or other fee or commission as a result of any transactions contemplated by this Agreement.
(ff) No Outstanding Loans or Other Extensions of Credit. Since the adoption of Section
13(k) of the Exchange Act, neither the Company nor any of its subsidiaries has extended or
maintained credit, arranged for the extension of credit, or renewed any extension of credit, in
the form of a personal loan, to or for any director or executive officer (or equivalent
thereof) of the Company and/or such subsidiary except for such extensions of credit as are
expressly permitted by Section 13(k) of the Exchange Act.
(gg) Compliance with Laws. The Company has not been advised, and has no reason to
believe, that it and each of its subsidiaries are not conducting business in compliance with
all applicable laws, rules and regulations of the jurisdictions in which it is conducting
business, except where failure to be so in compliance would not result in a Material Adverse
Change.
(hh) Dividend Restrictions. Except as disclosed in the Time of Sale Prospectus and the
Prospectus, no subsidiary of the Company is prohibited or restricted in any material respect,
directly or indirectly, from paying dividends to the Company, or from making any other
distribution with respect to such subsidiary’s equity securities or from repaying to the
Company or any other subsidiary of the Company any amounts that may from time to time become
due under any loans or advances to such subsidiary from the Company or from transferring any
property or assets to the Company or to any other subsidiary.
(ii) Foreign Corrupt Practices Act. Neither the Company nor any of its subsidiaries nor,
to the knowledge of the Company, any director, officer, agent, employee, affiliate or other
person acting on behalf of the Company or any of its subsidiaries is aware of or has taken any
action, directly or indirectly, that has resulted or would result in a violation of the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the
11
“FCPA”), including making use of the mails or any means or instrumentality of interstate
commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or authorization of the giving
of anything of value to any “foreign official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign political office, in
contravention of the FCPA; and the Company and its subsidiaries and, to the knowledge of the
Company, the Company’s affiliates have conducted their respective businesses in compliance with
the FCPA and have instituted and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued compliance therewith.
(jj) Money Laundering Laws. The operations of the Company and its subsidiaries are, and
have been conducted at all times, in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all applicable jurisdictions, the rules and
regulations thereunder and any related or similar applicable rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”), and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its subsidiaries
with respect to the Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(kk) OFAC. Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee, affiliate or person acting on behalf of the
Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by
the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company
will not directly or indirectly use the proceeds of this offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
Any certificate signed by any officer of the Company or any of its subsidiaries and
delivered to the Underwriter or to counsel for the Underwriter shall be deemed a representation
and warranty by the Company to the Underwriter as to the matters covered thereby.
The Company acknowledges that the Underwriter and, for purposes of the opinions to be
delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriter,
will rely upon the accuracy and truthfulness of the foregoing representations and hereby
consents to such reliance.
Section 2. Purchase, Sale and Delivery of the Offered Shares.
(a) The Firm Shares. Upon the terms herein set forth, the Company agrees to issue and
sell to the Underwriter an aggregate of 2,000,000 Firm Shares. On the basis of the
representations, warranties and agreements herein contained, and upon the terms but subject to
the conditions herein set forth, the Underwriter agrees to purchase from the Company all of the
Firm Shares. The purchase price to be paid by the Underwriter to the Company for the Firm
Shares shall be $38.50 per share.
12
(b) The First Closing Date. Delivery of certificates for the Firm Shares to be purchased
by the Underwriter and payment therefor shall be made at the offices of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., One
Shell Plaza, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (or such other place as may be agreed
to by the Company and the Underwriter) at 9:00 a.m. New York time, on December 7, 2006 or such
other time and date as shall be agreed upon by the Underwriter and the Company (the time and
date of such closing are called the “First Closing Date”). The Company hereby acknowledges
that circumstances under which the Underwriter may provide notice to postpone the First Closing
Date as originally scheduled include, but are in no way limited to, any determination by the
Company or the Underwriter to recirculate to the public copies of an amended or supplemented
Prospectus.
(c) The Optional Shares; Option Closing Date. In addition, on the basis of the
representations, warranties and agreements herein contained, and upon the terms but subject to
the conditions herein set forth, the Company hereby grants an option to the Underwriter to
purchase up to an aggregate of 300,000 Optional Shares from the Company at the purchase price
per share to be paid by the Underwriter for the Firm Shares. The option granted hereunder is
for use by the Underwriter solely in covering any over-allotments in connection with the sale
and distribution of the Firm Shares. The option granted hereunder may be exercised at any time
and from time to time in whole or in part upon notice by the Underwriter to the Company, which
notice may be given at any time within 30 days from the date of this Agreement. Such notice
shall set forth (i) the aggregate number of Optional Shares as to which the Underwriter is
exercising the option, (ii) the names and denominations in which the Optional Shares are to be
registered and (iii) the time, date and place at which such Optional Shares will be delivered
(which time and date may be simultaneous with, but not earlier than, the First Closing Date;
and in such case the term “First Closing Date” shall refer to the time and date of delivery of
certificates for the Firm Shares and such Optional Shares). Such time and date of delivery, if
subsequent to the First Closing Date, is called an “Option Closing Date” and shall be
determined by the Underwriter and shall not be earlier than three nor later than five full
business days after delivery of such notice of exercise. The Underwriter may cancel the option
at any time prior to its expiration by giving written notice of such cancellation to the
Company.
(d) Public Offering of the Offered Shares. The Underwriter hereby advises the Company
that it intends to offer for sale to the public, initially on the terms set forth in the Time
of Sale Prospectus and the Prospectus, the Offered Shares as soon after this Agreement has been
executed as the Underwriter, in its sole judgment, has determined is advisable and practicable.
(e) Payment for the Offered Shares. Payment for the Offered Shares shall be made at the
First Closing Date (and, if applicable, at each Option Closing Date) by wire transfer of
immediately available funds to the order of the Company.
(f) Delivery of the Offered Shares. The Company, through the facilities of DTC, shall
deliver, or cause to be delivered, to the Underwriter the Firm Shares at the First Closing
Date, against the irrevocable release of a wire transfer of immediately available funds for the
amount of the purchase price therefor. The Company, through the facilities of DTC, shall also
deliver, or cause to be delivered, to the Underwriter the Optional Shares the Underwriter has
agreed to purchase at the First Closing Date or the applicable Option Closing Date, as the case
may be, against the irrevocable release of a wire transfer of immediately available funds for
the amount of the purchase price therefor. At least two full business days prior to the First
Closing Date (or the applicable Option Closing Date, as the case may be), the Company shall
13
(i) deliver to the transfer agent and registrar of the Shares (the “Transfer Agent”) any
certificates evidencing Shares (to the extent that the Transfer Agent requires delivery of such
certificates) necessary to cause the Transfer Agent to arrange for the delivery of the Offered
Shares in accordance with the provisions of this Section 2(f) and (ii) authorize the Transfer
Agent to arrange for the delivery of the Offered Shares in accordance with the provisions of
this Section 2(f). The Offered Shares shall be registered in such names and denominations as
the Underwriter shall have requested at least one business day prior to the First Closing Date
(or the applicable Option Closing Date, as the case may be). Time shall be of the essence, and
delivery at the time and place specified in this Agreement is a further condition to the
obligations of the Underwriter.
Section 3. Additional Covenants.
The Company further covenants and agrees with the Underwriter as follows:
(a) Delivery of Registration Statement, Time of Sale Prospectus and Prospectus. Upon
request, the Company shall furnish to the Underwriter, without charge, signed copies of the
Registration Statement and any amendments thereto, with exhibits thereto, and shall furnish to
the Underwriter in New York City, without charge, prior to 10:00 a.m. New York City time on the
business day next succeeding the date of this Agreement and during the period mentioned in
Section 3(e) or 3(f) below, as many copies of the Time of Sale Prospectus, the Prospectus and
any supplements and amendments thereto or to the Registration Statement as the Underwriter may
reasonably request.
(b) Underwriter’s Review of Proposed Amendments and Supplements. Prior to amending or
supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus
(including any amendment or supplement through incorporation by reference of any report filed
under the Exchange Act), the Company shall furnish to the Underwriter for review, a reasonable
amount of time prior to the proposed time of filing or use thereof, a copy of each such
proposed amendment or supplement, and the Company shall not file or use any such proposed
amendment or supplement without the Underwriter’s consent, and shall file with the Commission
within the applicable period specified in Rule 424(b) under the Securities Act any prospectus
required to be filed pursuant to such Rule.
(c) Free Writing Prospectuses. The Company shall furnish to the Underwriter a copy of
each proposed free writing prospectus to be prepared by or on behalf of, used by or referred to
by the Company and shall not use or refer to any proposed free writing prospectus to which the
Underwriter reasonably objects.
(d) Filing of Underwriter Free Writing Prospectuses. The Company shall not take any
action that would result in the Underwriter or the Company being required to file with the
Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared
by or on behalf of the Underwriter that the Underwriter otherwise would not have been required
to file thereunder.
(e) Amendments and Supplements to Time of Sale Prospectus. If the Time of Sale Prospectus
is being used to solicit offers to buy the Offered Shares at a time when the Prospectus is not
yet available to prospective purchasers and any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Time of Sale Prospectus so that the
Time of Sale Prospectus does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein,
14
in the light of the circumstances when delivered to a prospective purchaser, not
misleading, or if any event shall occur or condition exist as a result of which the Time of
Sale Prospectus conflicts with the information contained in the Registration Statement, or if,
in the opinion of counsel for the Underwriter, it is necessary to amend or supplement the Time
of Sale Prospectus to comply with applicable law, including the Securities Act, the Company
shall (subject to Sections 3(b) and 3(c)) forthwith prepare, file with the Commission and
furnish, at its own expense, to the Underwriter and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of
Sale Prospectus as so amended or supplemented will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances when delivered to a prospective purchaser, not
misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer
conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or
supplemented, will comply with applicable law including the Securities Act.
(f) Securities Act Compliance. After the date of this Agreement, the Company shall
promptly advise the Underwriter in writing (i) of the receipt of any comments of, or requests
for additional or supplemental information from, the Commission, (ii) of the time and date of
any filing of any post-effective amendment to the Registration Statement or any amendment or
supplement to the Time of Sale Prospectus, any free writing prospectus or the Prospectus, (iii)
of the time and date that any post-effective amendment to the Registration Statement becomes
effective and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment thereto or any
amendment or supplement to the Time of Sale Prospectus, any free writing prospectus or the
Prospectus or of any order preventing or suspending the use of the Time of Sale Prospectus, any
free writing prospectus or the Prospectus, or of any proceedings to remove, suspend or
terminate from listing or quotation the Shares from any securities exchange or automated
quotation system upon which they are listed for trading or included or designated for
quotation, or of the threatening or initiation of any proceedings for any of such purposes. If
the Commission shall enter any such stop order at any time, the Company will use its best
efforts to obtain the lifting of such order at the earliest possible moment. Additionally, the
Company agrees that it shall comply with the provisions of Rules 424(b), 433, 430A and 430B, as
applicable, under the Securities Act and will use its reasonable efforts to confirm that any
filings made by the Company under such Rules 424(b) or 433 were received in a timely manner by
the Commission.
(g) Amendments and Supplements to the Prospectus and Other Securities Act Matters. If the
delivery of a prospectus is required at any time after the date hereof and if at such time any
event shall occur or condition exist as a result of which it is necessary to amend or
supplement the Prospectus so that the Prospectus does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if in the opinion of the Underwriter or counsel for the Underwriter it is
otherwise necessary to amend or supplement the Prospectus to comply with applicable law,
including the Securities Act, the Company agrees to promptly prepare (subject to Section 3(b)
and 3(c)), file with the Commission and furnish at its own expense to the Underwriter and to
dealers, amendments or supplements to the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with applicable law
15
including the Securities Act. Neither the Underwriter’s consent to, or delivery of, any
such amendment or supplement shall constitute a waiver of any of the Company’s obligations
under Sections 3(b) or (c).
(h) Blue Sky Compliance. The Company shall cooperate with the Underwriter and counsel for
the Underwriter to qualify or register the Offered Shares for sale under (or obtain exemptions
from the application of) the state securities or blue sky laws or Canadian provincial
securities laws (or other foreign laws) of those jurisdictions designated by the Underwriter,
shall comply with such laws and shall continue such qualifications, registrations and
exemptions in effect so long as required for the distribution of the Offered Shares. The
Company shall not be required to qualify as a foreign corporation or to take any action that
would subject it to general service of process in any such jurisdiction where it is not
presently qualified. The Company will advise the Underwriter promptly of the suspension of the
qualification or registration of (or any such exemption relating to) the Offered Shares for
offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for
any such purpose, and in the event of the issuance of any order suspending such qualification,
registration or exemption, the Company shall use its best efforts to obtain the withdrawal
thereof at the earliest possible moment.
(i) Use of Proceeds. The Company shall apply the net proceeds from the sale of the
Offered Shares sold by it in the manner described under the caption “Use of Proceeds” in each
Applicable Prospectus.
(j) Transfer Agent. The Company shall continue to engage and maintain, at its expense, a
registrar and transfer agent for the Shares.
(k) Earnings Statement. As soon as practicable, the Company will make generally available
to its security holders and to the Underwriter an earnings statement (which need not be
audited) covering a period of at least twelve months beginning with the first fiscal quarter of
the Company occurring after the date of this Agreement which shall satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(l) Periodic Reporting Obligations. The Company shall file, on a timely basis, with the
Commission and the NASDAQ Global Select Market all reports and documents required to be filed
under the Exchange Act. The Company shall file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the Exchange Act in the manner and within the
time periods required by the Exchange Act.
(m) Listing. The Company will use its best efforts to list, subject to official notice of
issuance, the Offered Shares on the NASDAQ Global Select Market and to maintain the listing of
the Shares on the NASDAQ Global Select Market unless and until such security is listed on
another exchange or automated quotation system of at least comparable reputation.
(n) Company to Provide Copy of the Prospectus in Form That May be Downloaded from the
Internet. The Company shall cause to be prepared and delivered, at its expense, within one
business day from the effective date of this Agreement, to the Underwriter an “electronic
Prospectus” to be used by the Underwriter in connection with the offering and sale of the
Offered Shares. As used herein, the term “electronic Prospectus” means a form of Prospectus,
and any amendment or supplement thereto, that meets each of the following conditions: (i) it
shall be encoded in an electronic format, satisfactory to the Underwriter, that
16
may be transmitted electronically by the Underwriter to offerees and purchasers of the
Offered Shares; (ii) it shall disclose the same information as the paper Prospectus, except to
the extent that graphic and image material cannot be disseminated electronically, in which case
such graphic and image material shall be replaced in the electronic Prospectus with a fair and
accurate narrative description or tabular representation of such material, as appropriate; and
(iii) it shall be in or convertible into a paper format or an electronic format, satisfactory
to Underwriter, that will allow investors to store and have continuously ready access to the
Prospectus at any future time, without charge to investors (other than any fee charged for
subscription to the Internet as a whole and for on-line time). The Company hereby confirms
that it has included or will include in the Prospectus filed pursuant to ▇▇▇▇▇ or otherwise
with the Commission and in the Registration Statement at the time it was declared effective an
undertaking that, upon receipt of a request by an investor or his or her representative, the
Company shall transmit or cause to be transmitted promptly, without charge, a paper copy of the
Prospectus.
(o) Agreement Not to Offer or Sell Additional Shares. During the period commencing on the
date hereof and ending on the 90th day following the date of the Prospectus (the “Lock-up
Period”), the Company will not, without the prior written consent of the Underwriter (which
consent may be withheld at the sole discretion of the Underwriter), directly or indirectly,
sell, offer, contract or grant any option to sell (including any short sale), pledge, transfer
or establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the
Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any
registration statement under the Securities Act in respect of, any Shares, options, rights or
warrants to acquire Shares or securities exchangeable or exercisable for or convertible into
Shares or publicly announce the intention to do any of the foregoing; provided, however, that
the Company (i) may issue Shares or options to purchase its Shares, or issue Shares upon
exercise of options, pursuant to any stock option, stock bonus or other stock plan or
arrangement described in the Time of Sale Prospectus and the Prospectus or any amendment to or
replacement of such plan, and (ii) file one or more registration statements on Form S-8 or
amendments thereto relating to the issuance of Shares or the issuance and exercise of options
to purchase Shares granted under the employee benefit plans of the Company existing on the date
of the Prospectus or any amendment to or replacement of such plan. Notwithstanding the
foregoing, if (1) during the last 17 days of the Lock-up Period, the Company issues an earnings
release or material news or a material event relating to the Company occurs or (2) prior to the
expiration of the Lock-up Period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the Lock-up Period, then in each case the
Lock-up Period will be extended until the expiration of the 18-day period beginning on the date
of the issuance of the earnings release or the occurrence of the material news or material
event, as applicable, except that such extension will not apply if, within three business days
prior to the expiration of the Lock-up Period, the Company delivers to the Underwriter a
certificate, signed by the Chief Financial Officer or Chief Operating Officer of the Company,
certifying on behalf of the Company that the Company’s shares of common stock are “actively
traded securities” (as defined in Regulation M), and that the Company meets the applicable
requirements of paragraph (a)(1) of Rule 139 under the Securities Act in the manner
contemplated by Rule 2711(f)(4) of the NASD. The Company will provide the Underwriter with
prior notice of any such announcement that gives rise to an extension of the Lock-up Period.
(p) Future Reports to the Underwriter. During the period of five years hereafter the
Company will furnish, to the extent not available on ▇▇▇▇▇, to the Underwriter at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ Attention: Capital Markets: (i) as soon as
17
practicable after the end of each fiscal year, copies of the Annual Report of the Company
containing the balance sheet of the Company as of the close of such fiscal year and statements
of income, stockholders’ equity and cash flows for the year then ended and the opinion thereon
of the Company’s independent public or certified public accountants; (ii) as soon as
practicable after the filing thereof, copies of each proxy statement, Annual Report on Form
10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report filed by the
Company with the Commission, the NASD or any securities exchange or quotation system; and (iii)
as soon as available, copies of any report or communication of the Company mailed generally to
holders of its capital stock.
(q) Investment Limitation. The Company shall not invest, or otherwise use the proceeds
received by the Company from its sale of the Offered Shares in such a manner as would require
the Company or any of its subsidiaries to register as an investment company under the
Investment Company Act.
(r) No Stabilization or Manipulation; Compliance with Regulation M. The Company will not
take, directly or indirectly, any action designed to or that might be reasonably expected to
cause or result in stabilization or manipulation of the price of the Shares or any other
reference security, whether to facilitate the sale or resale of the Offered Shares or
otherwise, and the Company will, and shall cause each of its affiliates to, comply with all
applicable provisions of Regulation M. If the limitations of Rule 102 of Regulation M (“Rule
102”) do not apply with respect to the Offered Shares or any other reference security pursuant
to any exception set forth in Section (d) of Rule 102, then promptly upon notice from the
Underwriter (or, if later, at the time stated in the notice), the Company will, and shall cause
each of its affiliates to, comply with Rule 102 as though such exception were not available but
the other provisions of Rule 102 (as interpreted by the Commission) did apply.
(s) Existing Lock-Up Agreements. During the Lock-up Period, the Company will enforce all
existing agreements between the Company and any of its security holders that prohibit the sale,
transfer, assignment, pledge or hypothecation of any of the Company’s securities. In addition,
the Company will direct the Transfer Agent to place stop transfer restrictions upon any such
securities of the Company that are bound by such existing “lock-up” agreements for the duration
of the periods contemplated in such agreements, including “lock-up” agreements entered into by
the Company’s officers and directors pursuant to Section 6(h).
Section 4. Payment of Expenses. The Company agrees to pay all costs, fees and expenses
incurred in connection with the performance of its obligations hereunder and in connection with
the transactions contemplated hereby, including (i) all expenses incident to the issuance and
delivery of the Offered Shares (including all printing and engraving costs), (ii) all fees and
expenses of the Transfer Agent, (iii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Offered Shares to the Underwriter, (iv) all fees
and expenses of the Company’s counsel, independent public or certified public accountants and
other advisors, (v) all costs and expenses incurred in connection with the preparation,
printing, filing, shipping and distribution of the Registration Statement (including financial
statements, exhibits, schedules, consents and certificates of experts), the Time of Sale
Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by,
or referred to by the Company, and all amendments and supplements thereto, and this Agreement,
(vi) all filing fees, attorneys’ fees and expenses incurred by the Company or the Underwriter
in connection with qualifying or registering (or obtaining exemptions from the qualification or
registration of) all or any part of the Offered
18
Shares for offer and sale under the state securities or blue sky laws or the provincial
securities laws of Canada (or other foreign laws), and, if requested by the Underwriter,
preparing and printing a “Blue Sky Survey” or memorandum and a “Canadian wrapper”, and any
supplements thereto, advising the Underwriter of such qualifications, registrations,
determinations and exemptions, (vii) the filing fees incident to, and the reasonable fees and
expenses of counsel for the Underwriter in connection with, the NASD’s review, if any, and
approval of the Underwriter’s participation in the offering and distribution of the Offered
Shares, (viii) the fees and expenses associated with listing the Offered Shares on the NASDAQ
Global Select Market, and (ix) all other fees, costs and expenses of the nature referred to in
Item 14 of Part II of the Registration Statement. Except as provided in this Section 4,
Section 7, Section 8 and Section 9 hereof, the Underwriter shall pay its own expenses,
including the fees and disbursements of its counsel.
Section 5. Covenant of the Underwriter. The Underwriter covenants with the Company not to
take any action that would result in the Company being required to file with the Commission
under Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf
of the Underwriter that otherwise would not be required to be filed by the Company thereunder,
but for the action of the Underwriter.
Section 6. Conditions of the Obligations of the Underwriter. The obligations of the
Underwriter to purchase and pay for the Offered Shares as provided herein on the First Closing
Date and, with respect to the Optional Shares, each Option Closing Date, shall be subject to
the accuracy of the representations and warranties on the part of the Company set forth in
Section 1 hereof as of the date hereof and as of the First Closing Date as though then made
and, with respect to the Optional Shares, as of each Option Closing Date as though then made,
to the timely performance by the Company of its covenants and other obligations hereunder, and
to each of the following additional conditions:
(a) Accountants’ Comfort Letter. On the date hereof, the Underwriter shall have received
from UHY ▇▇▇▇ Frankfort ▇▇▇▇▇ & ▇▇▇▇ CPAs, LLP, independent public or certified public
accountants for the Company, a letter dated the date hereof addressed to the Underwriter, in
form and substance satisfactory to the Underwriter, (i) containing statements and information
of the type ordinarily included in accountant’s “comfort letters” to underwriters, delivered
according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect
to the audited and unaudited financial statements and certain financial information contained
in the Registration Statement, the Time of Sale Prospectus and each free writing prospectus, if
any, and, with respect to each letter dated the date hereof only, the Prospectus, and (ii)
confirming that they are (A) independent public or certified public accountants as required by
the Securities Act and the Exchange Act and (B) in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X.
(b) Compliance with Registration Requirements; No Stop Order; No Objection from NASD. For
the period from and after effectiveness of this Agreement and prior to the First Closing Date
and, with respect to the Optional Shares, each Option Closing Date:
(i) the Company shall have filed the Prospectus with the Commission (including the
information previously omitted from the Registration Statement pursuant to Rule 430B under
the Securities Act) in the manner and within the time period required by Rule 424(b) under
the Securities Act;
19
(ii) no stop order suspending the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in effect and no
proceedings for such purpose shall have been instituted or threatened by the Commission;
and
(iii) the NASD shall have raised no objection to the fairness and reasonableness of
the underwriting terms and arrangements.
(c) No Material Adverse Change or Ratings Agency Change. For the period from and after
the date of this Agreement and through and including the First Closing Date and, with respect
to the Optional Shares, each Option Closing Date:
(i) in the judgment of the Underwriter there shall not have occurred any Material
Adverse Change; and
(ii) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
(d) Opinion of Counsel for the Company. On each of the First Closing Date and each Option
Closing Date the Underwriter shall have received the opinion of ▇▇▇▇▇▇▇▇▇▇▇ & Price, L.L.P.,
counsel for the Company, dated as of such Closing Date, the form of which is attached as
Exhibit D, with customary qualifications and assumptions.
(e) Opinion of Counsel for the Underwriter. On each of the First Closing Date and each
Option Closing Date the Underwriter shall have received the opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.,
counsel for the Underwriter, in form and substance satisfactory to the Underwriter, dated as of
such Closing Date.
(f) Officers’ Certificate. On each of the First Closing Date and each Option Closing Date
the Underwriter shall have received a written certificate executed by the Chief Operating
Officer or President of the Company and the Chief Financial Officer of the Company, dated as of
such Closing Date, to the effect set forth in subsections (b)(ii) and (c)(ii) of this Section
6, and further to the effect that:
(i) for the period from and including the date of this Agreement through and including
such Closing Date, there has not occurred any Material Adverse Change;
(ii) the representations and warranties of the Company set forth in Section 1 of this
Agreement are true and correct, in all material respects (except for such representations
and warranties as are qualified by the words “Material Adverse Change” or other concepts of
materiality, which must be true and correct in all respects), with the same force and
effect as though expressly made on and as of such Closing Date; and
(iii) the Company has complied with all the agreements and covenants hereunder and
satisfied, in all material respects, all the conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date.
20
(g) Bring-down Comfort Letter. On each of the First Closing Date and each Option Closing
Date the Underwriter shall have received from UHY ▇▇▇▇ Frankfort ▇▇▇▇▇ & ▇▇▇▇ CPAs, LLP,
independent public or certified public accountants for the Company, a letter dated such date,
in form and substance satisfactory to the Underwriter, to the effect that they reaffirm the
statements made in the letter furnished by them pursuant to subsection (a) of this Section 6,
except that the specified date referred to therein for the carrying out of procedures shall be
no more than three business days prior to the First Closing Date or the applicable Option
Closing Date, as the case may be.
(h) Lock-Up Agreement from Certain Securityholders of the Company. On or prior to the
date hereof, the Company shall have furnished to the Underwriter an agreement in the form of
Exhibit C hereto from the persons listed on Exhibit B hereto, and such agreement shall be in
full force and effect on each of the First Closing Date and each Option Closing Date.
(i) Additional Documents. On or before each of the First Closing Date and each Option
Closing Date, the Underwriter and counsel for the Underwriter shall have received such
information, documents and opinions as they may reasonably request for the purposes of enabling
them to pass upon the issuance and sale of the Offered Shares as contemplated herein, or in
order to evidence the accuracy of any of the representations and warranties, or the
satisfaction of any of the conditions or agreements, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Offered Shares as
contemplated herein and in connection with the other transactions contemplated by this
Agreement shall be satisfactory in form and substance to the Underwriter and counsel for the
Underwriter.
If any condition specified in this Section 6 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Underwriter by notice to the Company at any
time on or prior to the First Closing Date and, with respect to the Optional Shares, at any
time on or prior to the applicable Option Closing Date, which termination shall be without
liability on the part of any party to any other party, except that Section 4, Section 6,
Section 7, Section 8 and Section 9 shall at all times be effective and shall survive such
termination.
Section 7. Reimbursement of Underwriter’s Expenses. If this Agreement is terminated by
the Underwriter pursuant to Section 6 or Section 10, or if the sale to the Underwriter of the
Offered Shares on the First Closing Date is not consummated because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or to comply with any
provision hereof, the Company agrees to reimburse the Underwriter upon demand for all
out-of-pocket expenses that shall have been reasonably incurred by the Underwriter in
connection with the proposed purchase and the offering and sale of the Offered Shares,
including but not limited to fees and disbursements of counsel, printing expenses, travel
expenses, postage, facsimile and telephone charges.
Section 8. Indemnification.
(a) Indemnification of the Underwriter. The Company agrees to indemnify and hold harmless
the Underwriter, its officers and employees, and each person, if any, who controls the
Underwriter within the meaning of the Securities Act and the Exchange Act against any loss,
claim, damage, liability or expense, as incurred, to which the Underwriter or such officer,
employee or controlling person may become subject, under the Securities Act, the
21
Exchange Act, or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation), insofar as such loss, claim, damage,
liability or expense (or actions in respect thereof as contemplated below) arises out of or is
based upon (i) any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, or any amendment thereto, including any information deemed to be a
part thereof pursuant to Rule 430A or Rule 430B, as applicable, under the Securities Act, or
the omission or alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) any untrue statement or alleged
untrue statement of a material fact contained in the Time of Sale Prospectus, any free writing
prospectus that the Company has used, referred to or filed, or is required to file, pursuant to
Rule 430B or Rule 433(d) of the Securities Act or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; or (iii) any act or failure to act or any alleged act or failure to
act by the Underwriter in connection with, or relating in any manner to, the Shares 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 any matter covered by clause
(i) or (ii) above, provided that the Company shall not be liable under this clause (iii) to the
extent that a court of competent jurisdiction shall have determined by a final judgment that
such loss, claim, damage, liability or action resulted directly from any such acts or failures
to act undertaken or omitted to be taken by the Underwriter through its bad faith or willful
misconduct; and to reimburse the Underwriter and each such officer, employee or controlling
person for any and all expenses (including the fees and disbursements of counsel chosen by the
Underwriter) as such expenses are reasonably incurred by the Underwriter or such officer,
employee or controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or action; provided,
however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage,
liability or expense to the extent, but only to the extent, arising out of or based upon any
untrue statement or alleged untrue statement or omission or alleged omission made in reliance
upon and in conformity with written information furnished to the Company by the Underwriter
expressly for use in the Registration Statement, the Time of Sale Prospectus, any such free
writing prospectus or the Prospectus (or any amendment or supplement thereto), it being
understood and agreed that the only such information furnished by the Underwriter to the
Company consists of the information described in subsection (b) below. The indemnity agreement
set forth in this Section 8(a) shall be in addition to any liabilities that the Company may
otherwise have.
(b) Indemnification of the Company and its Directors and Officers. The Underwriter agrees
to indemnify and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act, against any loss, claim, damage, liability
or expense, as incurred, to which the Company, or any such director, officer or controlling
person may become subject, under the Securities Act, the Exchange Act, or other federal or
state statutory law or regulation, or at common law or otherwise (including in settlement of
any litigation, if such settlement is effected with the written consent of the Underwriter),
insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the Time of Sale
Prospectus, any free writing prospectus that the Company has used, referred to or filed, or is
required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any
amendment or supplement thereto), or arises out of or is based upon the omission or alleged
22
omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, the Time of Sale Prospectus, such free writing prospectus that
the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of
the Securities Act, the Prospectus (or such amendment or supplement thereto), in reliance upon
and in conformity with written information furnished to the Company by the Underwriter
expressly for use therein; and to reimburse the Company, or any such director, officer or
controlling person for any legal and other expense reasonably incurred by the Company, or any
such director, officer or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability, expense or action.
The Company hereby acknowledges that the only information that the Underwriter has furnished to
the Company expressly for use in the Registration Statement, the Time of Sale Prospectus, any
free writing prospectus that the Company has filed, or is required to file, pursuant to Rule
433(d) of the Securities Act or the Prospectus (or any amendment or supplement thereto) are the
statements set forth in the fourth paragraph on the outside front cover page of the Prospectus
Supplement and the statements made in the third paragraph under the caption “Underwriting” in
the Prospectus Supplement. The indemnity agreement set forth in this Section 8(b) shall be in
addition to any liabilities that the Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 8, notify the indemnifying party in writing of the commencement
thereof, but the omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party for contribution or otherwise than under
the indemnity agreement contained in this Section 8 or to the extent it is not prejudiced as a
proximate result of such failure. In case any such action is brought against any indemnified
party and such indemnified party seeks or intends to seek indemnity from an indemnifying party,
the indemnifying party will be entitled to participate in, and, to the extent that it shall
elect, jointly with all other indemnifying parties similarly notified, by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall have reasonably
concluded that a conflict may arise between the positions of the indemnifying party and the
indemnified party in conducting the defense of any such action or that there may be legal
defenses available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of such indemnifying
party’s election so to assume the defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the fees and expenses of more than
one separate counsel (together with local counsel), representing the indemnified parties who
are parties to such action), which counsel (together with any local counsel) for the
indemnified parties shall
23
be selected by the Underwriter (in the case of counsel for the indemnified parties
referred to in Section 8(a) above) or by the Company (in the case of counsel for the
indemnified parties referred to in Section 8(b) above)), (ii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the indemnifying
party has authorized in writing the employment of counsel for the indemnified party at the
expense of the indemnifying party, in each of which cases the fees and expenses of counsel
shall be at the expense of the indemnifying party and shall be paid as they are incurred.
(d) Settlements. The indemnifying party under this Section 8 shall not be liable for any
settlement of any proceeding effected without its written consent, which consent shall not be
unreasonably withheld, delayed or conditioned, but if settled with such consent or if there be
a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party against any loss, claim, damage, liability or expense by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by Section 8(c) hereof, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement. No indemnifying
party shall, without the prior written consent of the indemnified party, effect any settlement,
compromise or consent to the entry of judgment in any pending or threatened action, suit or
proceeding in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party, unless such
settlement, compromise or consent includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such action, suit or proceeding.
Section 9. Contribution. If the indemnification provided for in Section 8 is for any
reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount paid or payable by such
indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or
expenses referred to therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriter, on the other hand, from
the offering of the Offered Shares pursuant to this Agreement 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 Underwriter, on the other hand, in
connection with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company, on the one hand, and the Underwriter, on the other hand, in
connection with the offering of the Offered Shares pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the offering of the
Offered Shares pursuant to this Agreement (before deducting expenses) received by the Company,
and the total underwriting discounts and commissions received by the Underwriter, bear to the
aggregate initial public offering price of the Offered Shares as set forth on such cover. The
relative fault of the Company, on the one hand, and the Underwriter, on the other hand, shall
be determined by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged
24
omission to state a material fact relates to information supplied by the Company, on the
one hand, or the Underwriter, on the other hand, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 8(c), any legal or other fees or expenses reasonably incurred
by such party in connection with investigating or defending any action or claim. The
provisions set forth in Section 8(c) with respect to notice of commencement of any action shall
apply if a claim for contribution is to be made under this Section 9; provided, however, that
no additional notice shall be required with respect to any action for which notice has been
given under Section 8(c) for purposes of indemnification.
The Company and the Underwriter agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations referred to in
this Section 9.
Notwithstanding the provisions of this Section 9, the Underwriter shall not be required to
contribute any amount in excess of the underwriting discounts and commissions received by it in
connection with the Offered Shares underwritten by it and distributed to the public. 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. For purposes of this Section 9, each officer and employee of the
Underwriter and each person, if any, who controls the Underwriter within the meaning of the
Securities Act or the Exchange Act shall have the same rights to contribution as the
Underwriter, and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company with the meaning of
the Securities Act and the Exchange Act shall have the same rights to contribution as the
Company.
Section 10. Termination of this Agreement. Prior to the purchase of the Firm Shares by
the Underwriter on the First Closing Date, this Agreement may be terminated by the Underwriter
by notice given to the Company if at any time (i) trading or quotation in any of the Company’s
securities shall have been suspended or limited by the Commission or by The NASDAQ Global
Select Market, or trading in securities generally on either The NASDAQ Global Select Market or
the New York Stock Exchange shall have been suspended or limited, or minimum or maximum prices
shall have been generally established on any of such stock exchanges by the Commission or the
NASD; (ii) a general banking moratorium shall have been declared by any of federal, New York or
Delaware authorities; (iii) there shall have occurred any outbreak or escalation of national or
international hostilities or any crisis or calamity, or any change in the United States or
international financial markets, or any substantial change or development involving a
prospective substantial change in United States’ or international political, financial or
economic conditions, as in the judgment of the Underwriter is material and adverse and makes it
impracticable to market the Offered Shares in the manner and on the terms described in the Time
of Sale Prospectus or the Prospectus or to enforce contracts for the sale of securities; (iv)
in the judgment of the Underwriter there shall have occurred any Material Adverse Change; or
(v) the Company shall have sustained a loss by strike, fire, flood, earthquake, accident or
other calamity of such character as in the judgment of the Underwriter may interfere materially
with the conduct of the business and operations of the Company regardless of whether or not
such loss shall have been insured.
25
Any termination pursuant to this Section 10 shall be without liability on the part of (a)
the Company to the Underwriter, except that the Company shall be obligated to reimburse the
expenses of the Underwriter pursuant to Sections 4 and 7 hereof, (b) the Underwriter to the
Company, or (c) of any party hereto to any other party except that the provisions of Section 8
and Section 9 shall at all times be effective and shall survive such termination.
Section 11. No Advisory or Fiduciary Relationship. The Company acknowledges and agrees
that (a) the purchase and sale of the Offered Shares pursuant to this Agreement, including the
determination of the public offering price of the Offered Shares and any related discounts and
commissions, is an arm’s-length commercial transaction between the Company, on the one hand,
and the Underwriter, on the other hand, (b) in connection with the offering contemplated hereby
and the process leading to such transaction the Underwriter is and has been acting solely as a
principal and is not the agent or fiduciary of the Company, or its stockholders, creditors,
employees or any other party, (c) the Underwriter has not assumed and will not assume an
advisory or fiduciary responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether the Underwriter has
advised or is currently advising the Company on other matters) and the Underwriter has no
obligation to the Company with respect to the offering contemplated hereby except the
obligations expressly set forth in this Agreement, (d) the Underwriter and its affiliates may
be engaged in a broad range of transactions that involve interests that differ from those of
the Company, and (e) the Underwriter has not provided any legal, accounting, regulatory or tax
advice with respect to the offering contemplated hereby and the Company has consulted its own
legal, accounting, regulatory and tax advisors to the extent it deemed appropriate .
Section 12. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of the Company, of
its officers and of the Underwriter set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf of the
Underwriter or the Company or any of its or their partners, officers or directors or any
controlling person, as the case may be, and, anything herein to the contrary notwithstanding,
will survive delivery of and payment for the Offered Shares sold hereunder and, to the extent
specified in Section 10, any termination of this Agreement.
Section 13. Notices. All communications hereunder shall be in writing and shall be
mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Underwriter:
▇▇▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇ L.L.P.
One Shell Plaza
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
One Shell Plaza
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
▇▇
If to the Company:
GulfMark Offshore, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇▇▇ & Price, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Any party hereto may change the address for receipt of communications by giving written notice
to the others.
Section 14. Successors. This Agreement will inure to the benefit of and be binding upon
the parties hereto, and to the benefit of the employees, officers and directors and controlling
persons referred to in Section 8 and Section 9, and in each case their respective successors,
and no other person will have any right or obligation hereunder. The term “successors” shall
not include any purchaser of the Offered Shares as such from the Underwriter merely by reason
of such purchase.
Section 15. Partial Unenforceability. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or enforceability of any
other Section, paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to
be made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
Section 16. Governing Law Provisions. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York applicable to agreements made and
to be performed in such state. Any legal suit, action or proceeding arising out of or based
upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) may be
instituted in the federal courts of the United States of America located in the Borough of
Manhattan in the City of New York or the courts of the State of New York in each case located
in the Borough of Manhattan in the City of New York (collectively, the “Specified Courts”), and
each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted
in regard to the enforcement of a judgment of any such court (a “Related Judgment”), as to
which such jurisdiction is non-exclusive) of such courts in any such suit, action or
proceeding. Service of any process, summons, notice or document by mail to such party’s
address set forth above shall be effective service of process for any suit, action or other
proceeding brought in any such court. The parties irrevocably and unconditionally waive any
objection to the laying of venue of any suit, action
27
or other proceeding in the Specified Courts and irrevocably and unconditionally waive and
agree not to plead or claim in any such court that any such suit, action or other proceeding
brought in any such court has been brought in an inconvenient forum.
With respect to any Related Proceeding, each party irrevocably waives, to the fullest
extent permitted by applicable law, all immunity (whether on the basis of sovereignty or
otherwise) from jurisdiction, service of process, attachment (both before and after judgment)
and execution to which it might otherwise be entitled in the Specified Courts, and with respect
to any Related Judgment, each party waives any such immunity in the Specified Courts or any
other court of competent jurisdiction, and will not raise or claim or cause to be pleaded any
such immunity at or in respect of any such Related Proceeding or Related Judgment, including
any immunity pursuant to the United States Foreign Sovereign Immunities Act of 1976, as
amended.
Section 17. General Provisions. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter hereof. This
Agreement may be executed in two or more counterparts, each one of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement may not be amended or modified unless in writing by all of the parties hereto,
and no condition herein (express or implied) may be waived unless waived in writing by each
party whom the condition is meant to benefit. The Section headings herein are for the
convenience of the parties only and shall not affect the construction or interpretation of this
Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement,
they shall be deemed to be followed by the words “without limitation.” The words “hereof,”
“herein” and “hereunder” and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof,
including the indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light
of the ability of the parties to investigate the Company, its affairs and its business in order
to assure that adequate disclosure has been made in the Registration Statement, the Time of
Sale Prospectus, each free writing prospectus and the Prospectus (and any amendments and
supplements thereto), as required by the Securities Act and the Exchange Act.
28
If the foregoing is in accordance with your understanding of our agreement, kindly sign
and return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
| Very truly yours, GULFMARK OFFSHORE, INC. |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||
| Executive Vice President -- Finance, Chief Financial Officer, Secretary and Secretary |
||||
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Underwriter
in New York, New York as of the date first above written.
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By:
|
/s/ ▇▇▇ ▇▇▇▇ | |||
| ▇▇▇ ▇▇▇▇ | ||||
| Managing Director |
29
EXHIBIT A
Free Writing Prospectuses
Issuer Free Writing Prospectus dated December 4, 2006 and filed with the Securities and Exchange
Commission on December 4, 2006
EXHIBIT B
List of Persons Executing Lock-Ups
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
EXHIBIT C
Form of Lock-up Agreement
December 4, 2006
▇▇▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
RE: GulfMark Offshore, Inc. (the “Company”)
Ladies & Gentlemen:
The undersigned is an owner of record or beneficially of certain shares of common stock, par value
$0.01 per share, of the Company (“Shares”) and/or securities convertible into or exchangeable or
exercisable for Shares. The Company proposes to carry out a public offering of Shares (the
"Offering”) for which you will act as underwriter. The undersigned recognizes that the Offering
will be of benefit to the undersigned and will benefit the Company. The undersigned acknowledges
that you are relying on the representations and agreements of the undersigned contained in this
letter in carrying out the Offering and in entering into underwriting arrangements with the Company
with respect to the Offering.
In consideration of the foregoing, the undersigned hereby agrees that the undersigned will not,
(and will cause any spouse or immediate family member of the spouse or the undersigned living in
the undersigned’s household not to), without the prior written consent of ▇▇▇▇▇▇▇▇▇ & Company, Inc.
(which consent may be withheld in its sole discretion), directly or indirectly, sell, offer,
contract or grant any option to sell (including without limitation any short sale), pledge,
transfer, establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the
Securities Exchange Act of 1934, as amended, or otherwise dispose of or transfer any Shares,
options or warrants to acquire Shares, or securities exchangeable or exercisable for or convertible
into Shares currently or hereafter owned either of record or beneficially (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended) by the undersigned (or such spouse or family
member), or publicly announce an intention to do any of the foregoing, for a period commencing on
the date hereof and continuing through the close of trading on the date 90 days after the date of
the Prospectus (as defined in the Underwriting Agreement relating to the Offering to which the
Company is a party) (the “Lock-up Period”); provided, that if (i) during the last 17 days of the
Lock-up Period, the Company issues an earnings release or material news or a material event
relating to the Company occurs or (ii) prior to the expiration of the Lock-up Period, the Company
announces that it will release earnings results during the 16-day period beginning on the last day
of the Lock-up Period, then in each case the Lock-up Period will be extended until the expiration
of the 18-day period beginning on the date of the issuance of the earnings release or the
occurrence of the material news or material event, as applicable, unless ▇▇▇▇▇▇▇▇▇ & Company, Inc.
waives, in writing, such extension, except that such extension will not apply if, within three
business days prior to the 15th calendar day before the last day of the Lock-up Period, the Company
delivers a certificate, signed by the Chief Financial Officer or Chief Operating Officer of the
Company, certifying on behalf of the Company that the Company’s Shares are “actively traded
securities” (as defined in Securities and Exchange Commission Regulation M), and the Company meets
the applicable requirements of paragraph (a)(1) of Rule 139 under the Securities Act of 1933, as
amended, in the manner contemplated by Rule 2711(f)(4) of the National Association of Securities
Dealers, Inc.; provided, further, that the foregoing restrictions shall not apply to the transfer
of any or all of the Shares owned by the undersigned, either during the undersigned’s lifetime or
on death, by gift, will or intestate succession, to the immediate family of the undersigned or to a
trust the beneficiaries of which are exclusively the undersigned and/or a member or
members of the undersigned’s immediate family; provided, however, that in any such case, it shall
be a condition to such transfer that the transferee executes and delivers to ▇▇▇▇▇▇▇▇▇ & Company,
Inc. an agreement stating that the transferee is receiving and holding the Shares subject to the
provisions of this letter agreement, and there shall be no further transfer of such Shares, except
in accordance with this letter agreement. The undersigned hereby acknowledges and agrees that
written notice of any extension of the Lock-up Period pursuant to the preceding sentence will be
delivered by ▇▇▇▇▇▇▇▇▇ & Company, Inc
.. to the Company and that any such notice properly delivered
will be deemed to have been given to, and received by, the undersigned.
The undersigned also agrees and consents to the entry of stop transfer instructions with the
Company’s transfer agent and registrar against the transfer of Shares or securities convertible
into or exchangeable or exercisable for Shares held by the undersigned except in compliance with
the foregoing restrictions.
With respect to the Offering only, the undersigned waives any registration rights relating to
registration under the Securities Act of any Shares owned either of record or beneficially by the
undersigned, including any rights to receive notice of the Offering.
This agreement is irrevocable and will be binding on the undersigned and the respective successors,
heirs, personal representatives, and assigns of the undersigned. This agreement shall be governed
by and construed in accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in such state.
| Printed Name of Holder | ||||
By: |
||||
| Signature | ||||
| Printed Name of Person Signing | ||||
EXHIBIT D
Opinion of ▇▇▇▇▇▇▇▇▇▇▇ & Price, L.L.P.
References to the Prospectus in this Exhibit D include any amendments and
supplements thereto at the Closing Date.
(i) The Company is a corporation duly incorporated under the laws of the State of
Delaware, with full corporate power and authority to own, lease and operate its properties
and to conduct its business as described in each Applicable Prospectus and to enter into and
perform its obligations under the Underwriting Agreement.
(ii) Based on certificates from public officials, the Company is validly existing and
in good standing under the laws of the State of Delaware and is qualified to do business as
a foreign corporation and is in good standing in the jurisdictions set forth opposite the
Company’s name on Schedule 1 hereto.
(iii) Each subsidiary of the Company listed on Schedule 2 hereto (each, a “Designated
Subsidiary”) is an entity duly incorporated or organized under the laws of the jurisdiction
of its incorporation or organization, with full power and authority (corporate or other) to
own, lease and operate its properties and to conduct its business as described in each
Applicable Prospectus.
(iv) Based on certificates from public officials, each Designated Subsidiary of the
Company is validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, as applicable, and is qualified to do business as a foreign
entity in good standing, where applicable, in the jurisdictions set forth opposite its name
on Schedule 2 to such opinion.
(v) Except as disclosed in the Time of Sale Prospectus and the Prospectus, no
Designated Subsidiary is prohibited or restricted in any material respect, directly or
indirectly, from paying dividends to the Company, or from making any other distribution with
respect to such subsidiary’s equity securities or from repaying to the Company or any other
subsidiary of the Company any amounts that may from time to time become due under any loan
or advances to such subsidiary from the Company or from transferring any property or assets
to the Company or to any other subsidiary of the Company.
(vi) All of the issued and outstanding capital stock or other equity or ownership
interests of each Designated Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and all of the outstanding shares of capital stock or other
equity or ownership interests of the Designated Subsidiaries are owned of record by the
Company, directly or through one or more other Designated Subsidiaries.
(vii) The authorized, issued and outstanding capital stock of the Company (including
the Shares) conforms to the descriptions thereof set forth or incorporated by reference in
the Time of Sale Prospectus and the Prospectus. Upon the Company’s receipt of the
consideration set forth in the Underwriting Agreement, the Offered Shares will be duly
authorized and validly issued, fully paid and nonassessable. The form of certificate used
to evidence the Shares is in due and proper form and complies with all applicable
requirements of the charter and by-laws of the Company and the General Corporation Law of
the State of Delaware.
(viii) No stockholder of the Company or any other person has any preemptive right,
right of first refusal or other similar right to subscribe for or purchase securities of the
Company arising (i) by operation of the charter or by-laws of the Company or the General
Corporation Law of the State of Delaware or (ii) to the knowledge of such counsel,
otherwise.
(ix) The Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
(x) The Offered Shares to be purchased by the Underwriter from the Company have been
duly authorized for issuance and sale pursuant to the Underwriting Agreement and, when
issued and delivered by the Company pursuant to the Underwriting Agreement against payment
of the consideration set forth therein, will be validly issued, fully paid and
nonassessable.
(xi) The Company meets, and at the time the Registration Statement was originally
declared effective and at the time the Company’s Annual Report on Form 10-K for the year
ended December 31, 2005 was filed with the Commission the Company met, the applicable
requirements for use of Form S-3 under the Securities Act. The Registration Statement has
been declared effective by the Commission under the Securities Act. To the knowledge of
such counsel, no stop order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings for such purpose have been
instituted or are pending or are contemplated or, to the knowledge of such counsel,
threatened by the Commission. Any required filing of the Prospectus and any supplement
thereto pursuant to Rule 424(b) under the Securities Act has been made in the manner and
within the time period required by such Rule 424(b).
(xii) In the opinion of such counsel, the Registration Statement and the Prospectus
(except for the financial statements and financial schedules and other financial data
included therein, as to which such counsel need not express any opinion) appear on their
face to be appropriately responsive in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the Commission thereunder, and
nothing has come to the attention of such counsel that causes such counsel to believe that
(1) the Registration Statement or the prospectus included therein (except for the financial
statements and financial schedules and other financial data included therein, as to which
such counsel need not express any belief) at the time the Registration Statement became
effective contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading, (2) the Time of Sale Prospectus (except for the financial statements and
financial schedules and other financial data included therein, as to which such counsel need
not express any belief) as of the date of this Agreement or as amended or supplemented, if
applicable, as of the Closing Date contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, or
(3) the Prospectus (except for the financial statements and financial schedules and other
financial data included therein, as to which such counsel need not express any belief) as of
its date or as amended or supplemented, if applicable, as of the Closing Date contained or
contains any untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(xiii) The Offered Shares have been approved for listing on the NASDAQ Global Select
Market.
(xiv) The statements (i) in the Time of Sale Prospectus under the captions “Description
of Common Stock,” “Plan of Distribution” and “Underwriting,” in each case insofar as such
statements purport to describe certain provisions of documents, instruments, agreements,
statutes or regulations, are accurate in all material respects. The opinions of such
counsel filed as Exhibit 5.1 to the Registration Statement and as Exhibit 5.1 to the
Company’s Current Report on Form 8-K dated December [ ], 2006 are confirmed and the
Underwriter may rely upon such opinions as if they were addressed to it.
(xv) To the knowledge of such counsel, there are no legal or governmental actions,
suits or proceedings pending or threatened which are required to be disclosed in the
Registration Statement or the Prospectus, other than those disclosed therein.
(xvi) To the knowledge of such counsel, there are no Existing Instruments required to
be described or referred to in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement other than those described or referred to therein
or filed or incorporated by reference as exhibits thereto; and the descriptions thereof and
references thereto are accurate in all material respects.
(xvii) To the knowledge of such counsel, there are no persons with registration or
other similar rights to have any debt or equity securities registered for sale under the
Registration Statement or included in the offering contemplated by the Underwriting
Agreement, except for such rights as have been duly waived.
(xviii) The execution and delivery of the Underwriting Agreement by the Company, the
performance by the Company of its obligations thereunder (other than performance by the
Company of its obligations under the indemnification section of the Underwriting Agreement,
as to which no opinion need be rendered) and the issuance and sale of the offered securities
(i) have been duly authorized by all necessary corporate action on the part of the Company;
(ii) will not result in any violation of the provisions of the charter or by-laws or
operating agreement or similar organizational document of the Company or any Designated
Subsidiary; (iii) will not constitute a breach of, or Default or a Debt Repayment Triggering
Event under, or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its Designated Subsidiaries pursuant to, (A)
the Company’s 7.75% Senior Notes due 2014 or the related indenture, the Company’s $175
million Secured Reducing Revolving Credit Facility or the documents relating to the
Company’s other secured debt, or (B) to the knowledge of such counsel, any other material
Existing Instrument; (iv) will not result in any violation of any federal or Delaware law
or, to the knowledge of such counsel any administrative regulation or administrative or
court decree, applicable to the Company; or (v) will not require any consents, approvals or
authorizations to be obtained by the Company, or any registrations, declarations or filings
to be made by the Company, in each case, under any federal or Delaware statute, rule or
regulation applicable to the Company that have not been obtained or made.
(xix) No consent, approval, authorization or other order of, or registration or filing
with, any court or other governmental or regulatory authority or agency, is required for the
consummation of the transactions contemplated by the Underwriting Agreement, except such as
have been obtained or made by the Company and are in full force and effect under the
Securities Act or applicable state securities or blue sky laws.
(xx) To such counsel’s knowledge, none of the Company nor any of its Designated
Subsidiaries is in violation of its charter, by-laws, operating agreement or similar
organizational
document, as applicable, or in Default under any Existing Instrument, except for such
violation or Default as would not, individually or in the aggregate, result in a Material
Adverse Change.
(xxi) The Company is not, and after receipt of payment for the Offered Shares will not
be, an “investment company” within the meaning of Investment Company Act.
(xxii) Each document filed pursuant to the Exchange Act (other than the financial
statements and supporting schedules included therein, as to which no opinion need be
rendered) and incorporated or deemed to be incorporated by reference in the Prospectus
complied when so filed as to form in all material respects with the Exchange Act; and such
counsel has no reason to believe that any of such documents, when they were so filed,
contained an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made when such documents were filed, not misleading which has not been
corrected.
In rendering such opinion, such counsel may rely: (A) as to matters involving the
application of laws of any jurisdiction other than the General Corporation Law of the State of
Delaware or the federal law of the United States, to the extent they deem proper and specified
in such opinion, upon the opinion (which shall be dated the First Closing Date or the applicable
Option Closing Date, as the case may be, shall be satisfactory in form and substance to the
Underwriter, shall expressly state that the Underwriter may rely on such opinion as if it were
addressed to it and shall be furnished to the Underwriter) of other counsel of good standing
whom they believe to be reliable and who are satisfactory to the Underwriter; and (B) as to
matters of fact, to the extent they deem proper, on certificates of responsible officers of the
Company and public officials.
Schedule 1
Foreign Jurisdictions in which
the Company is Qualified to do Business
the Company is Qualified to do Business
Jurisdictions
Texas
Schedule 2
Designated Subsidiaries
| Foreign Jurisdictions | ||||
| Name of Subsidiary | Jurisdiction of Organization | Where Qualified | ||
Gulf Offshore N.S. Limited
|
United Kingdom | None | ||
GulfMark North Sea Limited
|
United Kingdom | None | ||
Sea Truck (UK) Ltd.
|
United Kingdom | None | ||
GulfMark Norge AS
|
Norway | None | ||
Gulf Offshore Norge AS
|
Norway | None | ||
GulfMark Rederi AS
|
Norway | None | ||
GulfMark Oceans, L.P.
|
Cayman Islands | None | ||
GM Offshore, Inc.
|
Delaware | None | ||
GulfMark Capital, LLC
|
Delaware | None | ||
GulfMark Resources, LLC
|
Delaware | None | ||
GulfMark Shipping, LLC
|
Delaware | None | ||
Gulf Offshore Marine International S. de RL |
Panama | None |