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EXHIBIT 2.3
AGREEMENT AND PLAN OF DISTRIBUTION
BY AND AMONG
GULFMARK INTERNATIONAL, INC.,
NEW GULFMARK INTERNATIONAL, INC.
AND
ENERGY VENTURES, INC.
DECEMBER 5, 1996
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AGREEMENT AND PLAN OF DISTRIBUTION
THIS AGREEMENT AND PLAN OF DISTRIBUTION (this "Agreement") is dated as
of December 5, 1996, by and among GULFMARK INTERNATIONAL, INC., a Delaware
corporation ("GulfMark"), NEW GULFMARK INTERNATIONAL, INC., a Delaware
corporation ("Spinco") and ENERGY VENTURES, INC. ("EVI"), a Delaware
corporation.
W I T N E S S E T H:
WHEREAS, Spinco is a wholly owned subsidiary of GulfMark; and
WHEREAS, GulfMark owns certain Assets used in the operation of the
Business and owns the Subsidiaries' Stock, all as hereinafter defined; and
WHEREAS, pursuant to this Agreement the Assets and the Subsidiaries'
Stock will be contributed by GulfMark to Spinco, in consideration for the
issuance by Spinco to GulfMark of additional shares of Spinco common stock, and
the assumption by Spinco of the Assumed Liabilities (as hereinafter defined)
(the transactions described in this paragraph are referred to collectively
herein as the "Contribution"); and
WHEREAS, after the transfer of the Assets and the Subsidiaries' Stock
to Spinco, and the assumption of the Assumed Liabilities by Spinco, GulfMark
will distribute to its stockholders all of the outstanding stock of Spinco (the
"Distribution") as further defined in Article III hereof; and
WHEREAS, immediately following the Distribution, and as a condition to
the Distribution, GulfMark will merge with GulfMark Acquisition Co., a Delaware
corporation and wholly owned subsidiary of EVI (the "Merger"); and
WHEREAS, for federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of Section
368(a)(1)(B) of the Internal Revenue Code of 1986, as amended (the "Code") and
the Contribution and Distribution will qualify as transactions pursuant to
Sections 368(a)(1)(D) and 355 of the Code;
NOW, THEREFORE, in consideration of the premises and the mutual terms,
covenants and conditions herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms have the following
respective meanings:
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1.1 "Additional Shares" shall mean that number of shares of Spinco
common stock as shall be equal to two times the number of shares of GulfMark
common stock outstanding on the Record Date for the Distribution.
1.2 "Affiliate" means, as to the person specified, any person
controlling, controlled by or under common control with such person, with the
concept of control in such context meaning the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of another, whether through the ownership of voting securities, by
contract or otherwise.
1.3 "Agreement" has the meaning specified in the preamble.
1.4 "Assets" means, collectively, all the property, assets and
rights, tangible and intangible, (other than the Excluded Assets) of GulfMark
or Ercon which are used directly or indirectly, in the Business and are
acquired by Spinco pursuant to this Agreement, which include the following:
(a) all cash on hand or in the banks on the Contribution
Date, except such amounts as are required to remain in GulfMark
pursuant to the Net Working Capital requirements Sections 2.2(o) and
3.2 of the Merger Agreement;
(b) all accounts receivable and notes receivable of
GulfMark, excluding those relating to Ercon, existing on the
Contribution Date;
(c) the Vessel SEARUNNER, together with her respective
machinery and equipment engines, machinery, mooring systems and
equipment, covers, anchors, chains, cables, tackle, rigging, apparel,
furniture, computers and computer equipment, computer software,
fittings and equipment, tools, pumps and pumping equipment, spare
components and parts, bunkers and lubricating oils, racking,
supporting inventory and stores, and all other appurtenances thereto
appertaining or belonging, excluding, however, equipment and stores
owned by third-party suppliers (the "Vessel");
(d) all machinery and equipment, engines, mooring
systems, covers, anchors, chains, cables, tackle, rigging, apparel,
furniture, computers, computer equipment and computer software,
fittings and equipment, tools, pumps and pumping equipment, spare
components and parts, supporting inventory and stores, wherever
located that are owned by GulfMark and are used or maintained in
connection with the Business (collectively, "Inventory and
Equipment");
(e) the following tangible and intangible assets used or
held for use in connection with the Business, to the extent assignable
by law:
(i) all Transferred Intellectual Property (as
hereinafter defined) owned by GulfMark relating to, or used in
connection with the operation of, the Business, and all rights
to recover for infringement thereon;
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(ii) the certificates, licenses, permits,
consents, operating authorities, orders, exemptions,
franchises, approvals, registrations and other authorizations
and applications therefor specifically associated with the
operation of the Business ("Permits");
(iii) the benefit and burden, after the date
hereof, of all right, title and interest of GulfMark
(excluding the Ercon) under contracts or other charters or
arrangements, and any amendments thereto relating to the
Business and existing on or before the Contribution Date (the
"Contracts"); and
(iv) all records to be delivered to Spinco pursuant
to Section 2.6;
(f) the corporate office assets identified on Schedule
1.4(f) attached hereto;
(g) the Louisiana assets, other than Inventory and
Equipment, identified on Schedule 1.4(g) attached hereto; and
(h) all other miscellaneous assets owned and used by
GulfMark or Ercon in the operation of the Business.
1.5 "Assumed Liabilities" shall mean any and all Liabilities and
Environmental Liabilities that are not Retained Liabilities and to which
GulfMark or any of the Assets may now or at any time in the future become
subject (whether directly or indirectly, including by reason of GulfMark or any
GulfMark Company owning, controlling or operating any business or assets of any
Person (including any current or past Affiliate)), resulting from, arising out
of or relating to (i) any GulfMark Company, (ii) any GulfMark Taxes for periods
ending on or before the Effective Date, (iii) any obligation, matter, fact,
circumstance or action or omission by any Person in any way relating to or
arising from the business, operations or assets of GulfMark that existed on or
prior to the Effective Date, (iv) any product or service provided by GulfMark
or any GulfMark Company prior to the Effective Date, (v) the Merger, the
Contribution, the Distribution or any of the other transactions contemplated
hereby, (vi) previously conducted operations of GulfMark or any GulfMark
Company or (vii) the Assets. The term "Assumed Liabilities" shall also
include, without limitation, the following:
(a) Any and all Liabilities and Environmental Liabilities
resulting from, arising out of or relating to (i) the assets,
activities, operations, current or former facilities, actions or
omissions of GulfMark or any of its respective officers, directors,
employees, independent contractors or agents, occurring on or before
the Effective Date, (ii) the assets, activities, operations, current
or former facilities, actions or omissions of any GulfMark Company or
any of its respective officers, directors, employees, independent
contractors or agents, (iii) any product liability claim, recall,
replacement, returns or customer allowances of or relating to GulfMark
or any GulfMark Company (excluding those obligations with respect to
those contracts and permits retained by GulfMark in the Retained
Liabilities) or (iv) any contract or permit of GulfMark or any
GulfMark Company (excluding those retained by GulfMark in the Retained
Liabilities
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but, regardless of whether the contract or permit is assigned,
conveyed or leased hereunder or under any other agreement contemplated
hereby);
(b) Any and all accounts and notes payable of GulfMark or
any GulfMark Company, excluding, however, the accounts payable which
have been accounted for in the calculation of the required Net Working
Capital set forth in the Merger Agreement;
(c) Any and all Liabilities relating to the GulfMark
401(k) Plan and the GulfMark Employee Benefit Plans except that once
GulfMark's 401(k) Plan is merged into an EVI plan qualified under
Sections 401(a) and 501(a) of the Code, Spinco shall not be
responsible for Liabilities relating to the GulfMark 401(k) Plan
occurring after the merging of such plans;
(d) Any and all Liabilities and Environmental Liabilities
to, on behalf of, or which arise from or relate to (i) active
employees, or retired and inactive employees, of GulfMark or any
GulfMark Company for claims occurring on or before the Effective Date
and (ii) active employees, or retired and inactive employees, of any
GulfMark Company after the Effective Date, including, without
limitation, (1) liability for any salaries, wages, tax equalization
payments, vacation pay, sick leave, personal leave, severance pay,
wrongful dismissal or discrimination claims; (2) liability for or
under any employee benefit plan, policy or arrangement not covered by
subsection (c) above including, without limitation, retirement,
pension, medical, dental, profit sharing, unemployment, supplemental
unemployment or disability plan policy or arrangement; (3) liability
for any payroll taxes, social security or similar taxes or
withholding; (4) liability arising from claims or litigation and (5)
liability arising from any injury, death, loss, disability,
occupational disease or claims under any workers' compensation laws;
(e) Any and all Liabilities and Environmental Liabilities
resulting from, arising out of, relating to or occurring on the
Properties, including those Properties listed on Schedule 1.5(e)
hereto, the operations on any of the foregoing, and any off-site
Environmental Liabilities related to any of the foregoing, including,
without limitation, those under any indemnification agreement or
obligation of GulfMark or any GulfMark Company and any documents
related thereto; provided, however, that Liabilities and Environmental
Liabilities resulting from, arising out of, relating to or occurring
on the Post-Effective Date Properties after the Effective Date shall
not be Assumed Liabilities but shall be Retained Liabilities hereunder
(Schedule 1.5(e) shall list all Properties;
(f) Any and all Liabilities of Ercon with respect to any
projects or transactions performed or engaged in by it prior to the
Effective Date, excluding those Liabilities which are Retained
Liabilities;
(g) Any and all litigation and claims Liabilities of
GulfMark or any GulfMark Company existing as of the Effective Date,
excluding those Liabilities which are Retained Liabilities;
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(h) Any and all Liabilities for GulfMark Taxes, arising
out of, or related to, GulfMark for taxable periods on or before the
Effective Date, but excluding those Liabilities which are Retained
Liabilities;
(i) Any and all liability for GulfMark Taxes, arising out
of or related to any GulfMark Company whether for taxable periods
ending before or after the Effective Date;
(j) Any misrepresentation or incorrect representation or
warranty of GulfMark under the Merger Agreement without regard to any
materiality or knowledge qualification; and
(k) Any and all legal, accounting, consulting and expert
fees and expenses incurred in investigating, preparing, defending,
settling or discharging any claim or action arising under, out of or
in connection with any of the Assumed Liabilities or Assets other than
those associated with EVI's counsel's evaluation of the Contribution
hereunder, the Merger or the Distribution.
1.6 "Business" means all businesses engaged in by any GulfMark
Company, other than Ercon or the business of owning the EVI Common Stock and
the Common Stock of American Independent Oil Company, as conducted on or before
the Distribution Date.
1.7 "Business Day" means a day on which national banks are
generally open for the transaction of business in Houston, Texas.
1.8 "CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq.
1.9 "Circumstance" has the meaning specified in Section 6.2
hereof.
1.10 "Consent Required Contract" has the meaning specified in
Section 2.5 hereof.
1.11 "Contracts" has the meaning specified in paragraph (e)(iii) of
the definition of Assets set forth in Section 1.4 hereof.
1.12 "Contribution" shall have the meaning specified in the third
"WHEREAS" clause hereof.
1.13 "Distribution" means the distribution by GulfMark to its
stockholders of all of the outstanding shares of Spinco and all transactions
occurring immediately prior to the distribution in connection therewith,
including the transfer of Assets to Spinco, the transfer of the Subsidiaries'
Stock to Spinco and the assumption of the Assumed Liabilities relating thereto.
1.14 "Distribution Date" shall mean the time and date as of which
the Distribution is effective.
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1.15 "Contribution Date" shall mean the time and date immediately
prior to the Distribution Date as of which the Contribution is effective.
1.16 "Effective Date" shall mean the time and date the Merger is
made effective.
1.17 "Environmental Conditions" means any pollution, contamination,
degradation, damage or injury caused by, related to, arising from or in
connection with the generation, handling, use, treatment, storage,
transportation, disposal, discharge, release or emission of any Waste
Materials.
1.18 "Environmental Law" or "Environmental Laws" means all laws,
rules, regulations, statutes, ordinances, decrees or orders of any governmental
entity now or at any time in the future in effect relating to (i) the control
of any potential pollutant or protection of the air, water or land, (ii) solid,
gaseous or liquid waste generation, handling, treatment, storage, disposal or
transportation, and (iii) exposure to hazardous, toxic or other substances
alleged to be harmful. The term "Environmental Law" or "Environmental Laws"
includes, without limitation, (1) the terms and conditions of any license,
permit, approval or other authorization by any governmental entity and (2)
judicial, administrative or other regulatory decrees, judgments and orders of
any governmental entity. The term "Environmental Law" or "Environmental Laws"
includes, but is not limited to the following statutes and the regulations
promulgated thereunder: the Clean Air Act, 42 U.S.C. Section 7401 et seq., the
Clean Water Act, 33 U.S.C. Section 1251 et seq., the Resource Conservation
Recovery Act, 42 U.S.C. Section 6901 et seq., the Superfund Amendments and
Reauthorization Act, 42 U.S.C. Section 11011 et seq., the Toxic Substances
Control Act, 15 U.S.C. Section 2601 et seq., the Water Pollution Control Act,
33 U.S.C. Section 1251, et seq., the Safe Drinking Water Act, 42 U.S.C.
Section 300f et seq., CERCLA and any state, county or local regulations
similar thereto.
1.19 "Environmental Liabilities" means any and all liabilities,
responsibilities, claims, suits, losses, costs (including remediation, removal,
response, abatement, clean-up, investigative or monitoring costs and any other
related costs and expenses), other causes of action recognized now or at any
later time, damages, settlements, expenses, charges, assessments, liens,
penalties, fines, pre-judgment and post-judgment interest, attorney fees and
other legal fees (i) pursuant to any agreement, order, notice, requirement,
responsibility or directive (including directives embodied in Environmental
Laws), injunction, judgment or similar documents (including settlements)
arising out of or in connection with any Environmental Laws, or (ii) pursuant
to any claim by a governmental entity or other person or entity for personal
injury, property damage, damage to natural resources, remediation or similar
costs or expenses incurred or asserted by such entity or person pursuant to
common law or statute.
1.20 "Ercon" means the wholly owned subsidiary of GulfMark, Ercon
Development Corporation, and upon its merger into GulfMark, the Ercon division
of GulfMark.
1.21 "EVI" shall mean Energy Ventures, Inc., a Delaware
corporation.
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1.22 "EVI Indemnified Parties" shall have the meaning set forth in
Section 6.1(a) hereof.
1.23 "Excluded Assets" means (i) any and all property, assets,
claims and rights, tangible and intangible of Ercon, (ii) the EVI Common Stock
owned by GulfMark, (iii) 200 shares of common stock of American Independent Oil
Company and (iv) the original tax, accounting and other corporate records of
GulfMark.
1.24 "GMdB" shall mean Gulf Marine do Brazil, a Brazilian
corporation.
1.25 "GNSL" shall mean GulfMark North Sea, Ltd., a U.K.
corporation.
1.26 "GOMI" shall mean Gulf Offshore Marine International, Inc., a
Panamanian corporation.
1.27 "GulfMark", for purposes of the assumption and indemnification
provisions of this Agreement, includes GulfMark International, Inc. and Ercon
Development Corporation and any and all predecessors thereto, whether by
merger, purchase or other acquisition of assets or otherwise, and any and all
predecessors to such entities.
1.28 "GulfMark 401(k) Plan" shall mean the GulfMark International,
Inc. 401(k) Plan.
1.29 "GulfMark Common Stock" means shares of common stock, $1.00
par value per share, of GulfMark.
1.30 "GulfMark Company" means any corporation, partnership, limited
liability company, association or other entity, excluding GulfMark and Ercon,
of which GulfMark or any GulfMark Company now or at any time in the past owned,
directly or indirectly, an ownership interest in (whether or not such ownership
interest constituted control of the entity and whether or not such interest
represented a passive or active investment), including, without limitation,
those companies and entities described on Schedule 1.30 hereto.
1.31 "GulfMark Employee Benefit Plans" shall have the meaning
specified in Section 4.3 hereof.
1.32 "GulfMark Taxes" means any and all taxes to which GulfMark or
any GulfMark Company may be obligated relating to or arising from (i) the
current or past operations or assets of GulfMark or any GulfMark Company
through the Effective Date, (ii) the Contribution and the Distribution, (iii)
the Merger, (iv) any tax return filed by any current or past member of
GulfMark's consolidated group, (v) any Tax for which GulfMark may be alleged to
be liable by reason of being affiliated with any other Person for all periods
prior to the Effective Date, (vi) property taxes with respect to the assets of
GulfMark or any GulfMark Company for all periods prior to the Effective Date
(with property taxes for the assets of GulfMark after the Distribution being
prorated) and (vii) any transfer taxes or value added in connection with the
transactions contemplated by the Contribution, Distribution and the Merger.
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1.33 "Inventory and Equipment" has the meaning specified in
paragraph (d) of the definition of Assets.
1.34 "Liability" means any and all claims, demands, liabilities,
responsibilities, disputes, causes of action and obligations of every nature
whatsoever, liquidated or unliquidated, known or unknown, matured or unmatured,
or fixed or contingent.
1.35 "Merger" means the merger of GulfMark Acquisition Co. with and
into GulfMark as contemplated by the Merger Agreement.
1.36 "Merger Agreement" means the Agreement and Plan of Merger
dated December 5, 1996, by and among EVI, GulfMark, GulfMark Acquisition Co.
and New GulfMark International, Inc.
1.37 "Permits" has the meaning specified in paragraph (e)(ii) of
the definition of Assets.
1.38 "Person" means an individual, corporation, limited liability
company, partnership, governmental authority or any other entity.
1.39 "Post-Effective Date Properties" shall mean only the
Properties owned, leased or operated by GulfMark or Ercon after the Effective
Date.
1.40 "Properties" means the properties currently or previously
owned or operated by GulfMark or any GulfMark Company.
1.41 "Record Date" shall have the meaning specified in Section 3.3
hereof.
1.42 "Retained Intellectual Property" means patents, trademarks,
service marks, trade names, service names, brand names, copyrights, trade
secrets, know-how, inventions, computer software (including documentation and
object and source codes) and similar rights used in Ercon, including without
limitation, all right, title and interest of GulfMark in and to the name
"Ercon" and any derivative thereof, including without limitation, "Ercon
Development Corporation" and all registrations, applications, licenses and
rights with respect to any of the foregoing.
1.43 "Retained Liabilities" shall mean and be limited solely to (i)
those accounts payable relating to the business of Ercon that are reflected on
the Effective Date balance sheet of GulfMark (ii) those accounts payable
reflected on the Effective Date balance sheet of GulfMark and agreed to by EVI
prior to the Effective Date and (iii) the obligations of GulfMark and Ercon
that arise after the Effective Date (other than obligations relating to matters
existing or occurring on or prior to the Effective Date and indemnification,
warranty and product liability, wrongful death or property claims associated
with actions or omissions prior to the Effective Date or any business conducted
prior to the Effective Date) including those obligations set forth under the
express terms of the contracts of GulfMark listed on Schedule 1.43 and any
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new contracts of GulfMark that are added to such Schedule prior to the
Effective Date subject to the limitations on new contracts set forth in Article
III of the Merger Agreement.
1.44 "Service of Process" shall have the meaning specified in
Section 6.1 hereof.
1.45 "Spinco" shall have the meaning specified in the preamble.
1.46 "Spinco 401(k) Plan" shall have the meaning specified in
Section 4.2 hereof.
1.47 "Spinco Common Stock" means shares of common stock, $1.00 par
value per share, of Spinco.
1.48 "Spinco Employee Benefit Plans" shall have the meaning
specified in Section 4.3 hereof.
1.49 "Stock Option Plans" means the following stock option plans
maintained by GulfMark:
(a) 1993 Amended and Restated Non-Employee Director Stock
Option Plan;
(b) the 1987 Stock Option Plan, as amended, and
(c) the 1988 Non-Employee Director Option Plan.
1.50 "Subsidiaries" shall mean Gulf Offshore Marine International,
Inc., a Panamanian corporation; GulfMark North Sea, Ltd., a U.K. corporation;
and a ninety percent (90%) interest in Gulf Marine do Brazil, a Brazilian
corporation.
1.51 "Subsidiaries' Stock" shall mean all of the issued and
outstanding capital stock of GOMI and GNSL and a ninety percent (90%) interest
in the capital stock of GMdB.
1.52 "Taxes" shall mean all federal, state, local, foreign and
other taxes, charges, fees, duties, levies, imposts, customs or other
assessments, including, without limitation, all net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, profit share,
license, lease, service, service use, value added, withholding, payroll,
employment, excise, estimated, severance, stamp, occupation, premium, property,
windfall profits, or other taxes, fees, assessments, customs, duties, levies,
imposts, or charges of any kind whatsoever, together with any interest,
penalties, additions to tax, fines or other additional amounts imposed thereon
or related thereto, and the term "Tax" means any one of the foregoing Taxes.
1.53 "Transfer Agent" shall mean American Stock Transfer & Trust
Company located at 40 Wall Street, New York, New York.
1.54 "Transferred Intellectual Property" means patents, trademarks,
service marks, trade names, service names, brand names, copyrights, trade
secrets, know-how, inventions,
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computer software (including documentation and object and source codes) and
similar rights used in the Business, including without limitation, all right,
title and interest of the GulfMark Company in and to the name "GulfMark" and
any derivative thereof, including without limitation, "GulfMark International,
Inc." and all registrations, applications, licenses and rights with respect to
any of the foregoing.
1.55 "Vessel" has the meaning specified in paragraph (c) of the
definition of Assets.
1.56 "Waste Materials" means any (i) toxic or hazardous materials
or substances; (ii) solid wastes, including asbestos, polychlorinated
biphenyls, mercury, buried contaminants, chemicals, flammable or explosive
materials; (iii) radioactive materials; (iv) petroleum wastes and spills or
releases of petroleum products; and (v) any other chemical, pollutant,
contaminant, substance or waste that is regulated by any governmental entity
under any Environmental Law.
ARTICLE II
CONTRIBUTION AND ASSUMPTION TRANSACTIONS
2.1 Contribution of Assets and Subsidiaries' Stock.
(a) Effective as of the Contribution Date, GulfMark
hereby contributes, assigns, transfers, conveys and delivers to Spinco
and Spinco hereby acquires and accepts, as hereinafter provided, all
of GulfMark's right, title and interest in and to the Assets and the
Subsidiaries' Stock. Notwithstanding the foregoing, GulfMark hereby
retains all of GulfMark's right, title and interest in and to the
Excluded Assets.
(b) GULFMARK MAKES NO REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED, WITH RESPECT TO THE ASSETS (CURRENT, FIXED, PERSONAL,
REAL, TANGIBLE OR INTANGIBLE), INCLUDING, BUT NOT LIMITED TO,
CONDITION OR WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS
THEREIN, WHETHER LATENT OR PATENT, CAPACITY, SUITABILITY, UTILITY,
SALABILITY, AVAILABILITY, COLLECTIBILITY, OPERATIONS, CONDITIONS,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IT BEING THE
EXPRESS AGREEMENT OF SPINCO AND GULFMARK THAT, EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT, SPINCO WILL OBTAIN THE ASSETS IN THEIR
PRESENT CONDITION AND STATE OF REPAIR, ON AN "AS IS AND WHERE IS, WITH
ALL FAULTS" BASIS.
2.2 Assumption. Effective as of the Contribution Date, as an
inducement to EVI to merge with GulfMark, Spinco hereby unconditionally assumes
and undertakes to pay, satisfy and discharge when due the Assumed Liabilities.
Notwithstanding the foregoing, GulfMark hereby retains and Spinco will have no
liability with respect to the Retained Liabilities.
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2.3 Consideration. The aggregate consideration for the
transactions provided for herein shall consist of (a) the issuance to GulfMark
of the Additional Shares and (b) the assumption by Spinco of the Assumed
Liabilities.
2.4 ABSOLUTE ASSUMPTION. IT IS THE INTENT OF THE PARTIES THAT THE
LIABILITIES AND ENVIRONMENTAL LIABILITIES ASSUMED BY SPINCO UNDER THIS
AGREEMENT SHALL BE WITHOUT REGARD TO THE CAUSE THEREOF OR THE NEGLIGENCE OF ANY
PERSON, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, ACTIVE OR
PASSIVE, AND WHETHER SUCH LIABILITY OR ENVIRONMENTAL LIABILITY IS BASED ON
STRICT LIABILITY, ABSOLUTE LIABILITY OR ARISING AS AN OBLIGATION OF
CONTRIBUTION. SPINCO HEREBY WAIVES AND RELEASES FOR ITSELF AND ON BEHALF OF
SPINCO'S AFFILIATES ANY CLAIMS, DEFENSES OR CLAIMS FOR CONTRIBUTION THAT IT HAS
OR MAY HAVE AGAINST GULFMARK, EVI OR ANY OF THEIR RESPECTIVE AFFILIATES WITH
RESPECT TO THE ASSUMED LIABILITIES.
2.5 Limitation on Assignments. Notwithstanding any other
provision hereof, this Agreement shall not constitute nor require an assignment
to Spinco of any Contract, Permit, license or other right if an attempted
assignment of the same without the consent of any party would constitute a
breach thereof or a violation of any law or any judgment, decree, order, writ,
injunction, rule or regulation of any governmental entity unless and until such
consent shall have been obtained. In the case of any such Contract, Permit,
license or other right that cannot be effectively transferred to Spinco without
such consent (a "Consent Required Contract"), GulfMark agrees that it will
attempt to enter into a reasonable arrangement designed to provide Spinco with
the benefit of GulfMark's rights under such Consent Required Contract,
including enforcement of any and all rights of GulfMark against any other party
as Spinco may reasonably request, all such actions to be at Spinco's sole cost
and expense.
2.6 Delivery of Records. Spinco shall be entitled to all books,
records, papers and instruments of GulfMark of whatever nature that relate to
the Assets, the Subsidiaries or the operation of the Business, including,
without limitation, all financial and accounting records, on the Closing Date,
and all books and records relating to employees, the purchase of materials,
supplies and services, research and development, engineering drawings, designs,
schematics, blueprints, instruction manuals, flowsheets, models, maintenance
schedules and similar technical records, and dealings with customers, vendors
and suppliers of the Business, and including computerized books and records and
other computerized storage media and the software (including documentation and
object and source codes) used in connection therewith; provided that GulfMark
shall be entitled to retain all originals of its corporate, financial,
accounting, legal, tax and auditing records, and GulfMark shall be entitled to
retain copies at its expense of any such other books and records that are
necessary for its tax, accounting or legal purposes.
ARTICLE III
RECAPITALIZATION OF SPINCO; MECHANICS OF DISTRIBUTION
3.1 Spinco Capitalization. The current equity capitalization of
Spinco consists of one issued and outstanding share of Spinco Common Stock (the
"Existing Spinco Common Stock"), all of which is outstanding and owned
beneficially and of record by the Company.
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3.2 Recapitalization of Spinco. Immediately prior to the
Distribution Date, the GulfMark shall cause Spinco to exchange the Existing
Spinco Common Stock owned by GulfMark for the Additional Shares.
3.3 Mechanics of Distribution. The Distribution shall be effected
by the distribution to each holder of record of GulfMark Common Stock, as of
the record date designated for the Distribution by or pursuant to the
authorization of the Board of Directors of GulfMark (the "Record Date"), of
certificates representing two shares of Spinco Common Stock for each share of
GulfMark Common Stock held by such holder.
3.4 Timing of Distribution. The Board of Directors of the
GulfMark shall formally declare the Distribution and shall authorize GulfMark
to pay it immediately prior to the Effective Date, subject to the satisfaction
or waiver of the conditions set forth in Article VIII, by delivery of
certificates for Spinco Common Stock to the Transfer Agent for delivery to the
holders entitled thereto. The Distribution shall be deemed to be effective
upon notification by GulfMark to the Transfer Agent that the Distribution has
been declared and that the Transfer Agent is authorized to proceed with the
distribution of Spinco Common Stock.
ARTICLE IV
EMPLOYEE BENEFIT PLANS
4.1 Employee Benefits Generally. All obligations of the Spinco
under this Article IV with respect to employee benefit plans, arrangements or
policies for the benefit of employees and former employees (and their
beneficiaries) of GulfMark and the GulfMark Companies in place immediately
prior to the Contribution Date shall be treated as Assumed Liabilities and not
as Retained Liabilities under this Agreement.
4.2 As soon as administratively possible after the Distribution
Date, Spinco shall establish a defined contribution plan (the "Spinco 401(k)
Plan") which shall be qualified under Section 401(a) of the Internal Revenue
Code of 1986, as amended, and effective as of the Distribution Date. As soon
as administratively feasible following the Distribution Date, and in accordance
with the terms of the GulfMark 401(k) Plan, GulfMark shall cause the account
balance attributable to each individual who will cease to be an employee of
GulfMark following the Distribution Date to be distributed directly to such
individual, or upon the request of any such individual, transferred to another
qualified rollover investment (including the Spinco 401(k) Plan if such
individual is eligible to participate therein) specified in such request to the
extent that such transfer or distribution is permitted by law. Each individual
who becomes an employee of Spinco on the Distribution Date shall, for
eligibility and vesting purposes under the Spinco 401(k) Plan, be credited with
the same service with which he or she is credited for such purposes under the
GulfMark 401(k) Plan immediately prior to the Distribution Date.
4.3 Employee Health, Life and Disability Insurance Plans.
Effective as of the Distribution Date, Spinco shall establish such employee
health, life and disability insurance plans and other employee welfare or
fringe benefit arrangements (collectively the "Spinco Employee
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14
Benefit Plans") which are comparable in the aggregate to the health, life and
disability insurance plans and other employee welfare or fringe benefit
arrangements which had been maintained by GulfMark for its employees and the
employees of its Subsidiaries prior to the Distribution Date (collectively the
"GulfMark Employee Benefit Plans"). Service by any employee with GulfMark or
its Subsidiaries prior to the Distribution Date shall be counted for purposes
of determining any period of eligibility to participate in, or to vest in
benefits (including vacation rights) provided under, the Spinco Employee
Benefit Plans, and any amounts previously expended by any such employees of
GulfMark or its Subsidiaries prior to the Distribution Date for purposes of
satisfying such plan year's deductible, co-payment limitations maximum
out-of-pocket provisions and applicable annual and/or life-time maximum benefit
limitations shall be credited for purposes of satisfying such plan year's
deductible, co-payment limitations under the Spinco Employee Benefit Plans and
any coverage waiting period for pre-existing conditions for such employees
shall be waived under the Spinco Employee Benefit Plans.
ARTICLE V
GULFMARK STOCK OPTION PLANS
5.1 As of the Distribution Date, Spinco shall assume the GulfMark
Stock Option Plans, and pursuant to the equitable adjustment provisions of the
applicable Stock Option Plan, each outstanding stock option previously granted
pursuant to any of GulfMark's Stock Option Plans to an employee, officer or
director of GulfMark who will, following the Distribution, become an employee,
officer or director of Spinco, will be converted into and represent an option
to acquire shares of Spinco Common Stock.
5.2 The number of shares of Spinco Common Stock subject to, and
the exercise price of, each such Spinco option will be adjusted in accordance
with the requirements of Section 424 of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder, to reflect the
Distribution as set forth in Section 5.3 so that (i) the aggregate intrinsic
value (difference between market value per share and exercise price) of each
option immediately after the Distribution is not greater than the aggregate
intrinsic value of such option immediately before the Distribution, and (ii)
the ratio of the exercise price per option to the market value per share is not
reduced. The vesting provisions and option period of the new Spinco options
will remain unchanged from the GulfMark options so replaced.
5.3 As of the Distribution Date, to effect the adjustment
described in Section 5.2, (i) the number of shares of Spinco Common Stock
covered by each new Spinco option shall be the number of shares covered by the
GulfMark option being replaced thereby, multiplied by a fraction equal to the
ratio of the pre-Distribution market price per share of GulfMark Common Stock
to the post-Distribution market price per share of Spinco Common Stock, and
(ii) the exercise price per share of each new Spinco option shall be the
exercise price per share of the GulfMark option being replaced thereby,
multiplied by a fraction equal to the ratio of the post-Distribution market
price per share of the Spinco Common Stock to the pre-Distribution market price
per share of GulfMark Common Stock.
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15
5.4 For purposes of the foregoing adjustments, (i) the
pre-Distribution market price per Share of GulfMark Common Stock shall be
deemed to be the average of the arithmetic mean between the highest and lowest
sales prices per share of GulfMark Common Stock as reported by the NASDAQ Stock
Market on each of the ten trading days before the Distribution or such other
market price as the Board of Directors of Spinco deems equitable, and (ii) the
post- Distribution market price per share of Spinco Common Stock shall be
deemed to be the average of the arithmetic mean between the highest and lowest
sales prices per share of Spinco Common Stock as reported by the NASDAQ Stock
Market on each of the ten trading days beginning on the eleventh trading day
after the Distribution or such other market price as the Board of Directors of
Spinco deems equitable.
5.5 GulfMark and Spinco will cooperate and take all action
necessary (including obtaining the consent of the holders of GulfMark options,
if required) to amend (if necessary) the GulfMark Stock Option Plans or
otherwise provide for adjustments of authorized shares and outstanding option
awards under the GulfMark Stock Option Plans, and to effect Spinco's assumption
of the GulfMark Stock Option Plans, in accordance with the provisions of this
Article V.
ARTICLE VI
INDEMNIFICATION
6.1 Indemnification Matters.
(a) Indemnification. Spinco hereby agrees to indemnify,
defend and hold GulfMark, EVI and their respective officers, directors,
employees, agents and assigns (collectively, the "EVI Indemnified
Parties") harmless from and against any and all Liabilities or
Environmental Liabilities (including, without limitation, reasonable
fees and expenses of attorneys, accountants, consultants and experts)
that the EVI Indemnified Parties incur, are subject to a claim for, or
are subject to, that are based upon, arising out of, relating to or
otherwise in respect of:
(i) any breach of any covenant or agreement of
Spinco contained in this Agreement or any other agreement
contemplated hereby;
(ii) the acts or omissions of GulfMark or any
GulfMark Company on or before the Effective Date;
(iii) the acts or omissions of any GulfMark
Company, Spinco or any of Spinco's Affiliates or the conduct
of any business by them on or after the Effective Date;
(iv) the Assumed Liabilities;
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16
(v) the Assets, regardless of any GulfMark
Company's prior use of any such Asset;
(vi) the conveyance, assignment, sale, lease or
making available of the Assets;
(vii) the conveyance, assignment, sale, merger or
contribution of the stock or share capital or assets of Ercon
Development Corporation to GulfMark;
(viii) any Taxes as a result of the Distribution,
the Contribution or the Merger subsequently being determined
to be a taxable transaction for foreign, federal, state or
local law purposes regardless of the theory or reason for the
transactions being subject to Tax;
(ix) any and all amounts for which GulfMark or EVI
may be liable on account of any claims, administrative
charges, self-insured retentions, deductibles, retrospective
premiums or fronting provisions in insurance policies,
including as the result of any uninsured period, insolvent
insurance carriers or exhausted policies, arising from claims
by GulfMark's or any GulfMark Company's Affiliates, or the
employees of any of the foregoing, or claims by insurance
carriers of GulfMark or any GulfMark Company for indemnity
arising from or out of claims by or against GulfMark or any
GulfMark Company for acts or omissions of GulfMark or any
GulfMark Company, or related to any current or past business
of GulfMark or any GulfMark Company or any product or service
provided by GulfMark or any GulfMark Company in whole or part
prior to the Effective Date;
(x) any COBRA Liability with respect to any
employees of GulfMark or any GulfMark Company who become
employees of Spinco after the Distribution;
(xi) any settlements or judgments in any
litigation commenced by one or more insurance carriers against
GulfMark or EVI on account of claims by Spinco or any GulfMark
Company or employees of Spinco or any GulfMark Company;
(xii) any and all Liabilities incurred by GulfMark
or EVI pursuant to its obligations hereunder in seeking to
obtain or obtaining any consent or approval to assign,
transfer or lease any interest in any asset or instrument,
contract, lease, permit or benefit arising thereunder or
resulting therefrom;
(xiii) any Liability relating to the failure to
comply with any bulk sales or transfer laws in connection
herewith or with any of the other agreements contemplated
hereby;
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17
(xiv) the on-site or off-site handling, storage,
treatment or disposal of any Waste Materials generated by
GulfMark or any GulfMark Company on or prior to the Effective
Date or any GulfMark Company at any time;
(xv) any and all Environmental Conditions, known
or unknown, existing on, at or underlying any of the
Post-Effective Date Properties on or prior to the Effective
Date;
(xvi) any and all Environmental Conditions, known
or unknown, existing on, at or underlying any of the
Properties other than the Post-Effective Date Properties;
(xvii) any acts or omissions of GulfMark or any
GulfMark Company relating to the ownership or operation of the
business of GulfMark or any GulfMark Company or the Properties
on or prior to the Effective Date;
(xviii) any Liability relating to any claim or demand
by any stockholder of GulfMark or EVI with respect to the
Merger, the Contribution, the Distribution or the transactions
relating thereto; and
(xix) any Liability relating to the GulfMark 401(k)
Plan and the other employee benefit or welfare plans of
GulfMark or any GulfMark Company arising out of circumstances
occurring on or prior to the Effective Date.
(b) Absolute Indemnity. NONE OF THE EVI INDEMNIFIED
PARTIES WILL BE OBLIGATED TO INSTITUTE ANY LEGAL PROCEEDINGS IN
CONNECTION WITH THE COLLECTION OR PURSUIT OF ANY INSURANCE IN ORDER TO
EXERCISE AN INDEMNIFICATION REMEDY UNDER THIS ARTICLE VI. UNLESS
OTHERWISE SPECIFICALLY EXPRESSED, THIS INDEMNITY OBLIGATION SHALL APPLY
WITHOUT REGARD TO WHETHER THE LIABILITY OR ENVIRONMENTAL LIABILITY WAS
CAUSED BY THE ORDINARY OR GROSS NEGLIGENCE OF ANY OF THE EVI
INDEMNIFIED PARTIES (WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR
CONCURRENT OR ACTIVE OR PASSIVE), OR WHETHER THE LIABILITY OR
ENVIRONMENTAL LIABILITY IS BASED ON STRICT LIABILITY, ABSOLUTE
LIABILITY OR ARISES AS AN OBLIGATION OF CONTRIBUTION OR INDEMNITY.
SPINCO ACKNOWLEDGES THAT IT IS AWARE OF VARIOUS THEORIES KNOWN AS THE
"EXPRESS NEGLIGENCE" DOCTRINE AND OTHER SIMILAR DOCTRINES AND THEORIES
THAT MAY LIMIT INDEMNIFICATION AND AGREES AND STIPULATES THAT THE
PROVISIONS OF THIS AGREEMENT REFLECT THE EXPRESS INTENT OF THE PARTIES
THAT THE INDEMNIFICATION TO BE PROVIDED BY SPINCO APPLY NOTWITHSTANDING
THE FACT THAT THE LIABILITY OR ENVIRONMENTAL LIABILITY (I) MAY NOT
CURRENTLY BE KNOWN BY IT OR MANIFEST ITSELF IN ANY REGARD, (II) MAY
ARISE UNDER A STATUTE
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OR THEORY THAT MAY NOT CURRENTLY EXIST OR BE KNOWN TO SPINCO, (III) MAY
ARISE AS A RESULT OF A NEGLIGENT ACT OR OMISSION BY ANY OF THE EVI
INDEMNIFIED PARTIES (WHETHER SUCH CONDUCT BE SOLE, JOINT OR CONCURRENT
OR ACTIVE OR PASSIVE) OR (IV) MAY CONSTITUTE A VIOLATION OF ANY
APPLICABLE CIVIL OR CRIMINAL LAW OR REGULATION.
6.2 Notice of Circumstance. After receipt by EVI of notice, or
EVI's actual discovery, of any action, proceeding, claim, demand or potential
claim which could give rise to a right to indemnification pursuant to any
provision of this Agreement (any of which is individually referred to as a
"Circumstance"), EVI shall give Spinco written notice describing the
Circumstance in reasonable detail; provided, however, that no delay by EVI in
notifying Spinco shall relieve Spinco from any Liability or Environmental
Liability hereunder unless (and then solely to the extent) Spinco's position is
actually adversely prejudiced. In the event Spinco notifies EVI within 15 days
after such notice that Spinco is assuming the defense thereof, (i) Spinco will
defend the EVI Indemnified Parties against the Circumstances with counsel of
its choice, provided such counsel is reasonably satisfactory to EVI, (ii) the
EVI Indemnified Parties may retain separate co-counsel at its or their sole
cost and expense (except that Spinco will be responsible for the fees and
expenses for the separate co-counsel to the extent EVI concludes reasonably
that the counsel Spinco has selected has a conflict of interest), (iii) the EVI
Indemnified Parties will not consent to the entry of any judgment or enter into
any settlement with respect to the Circumstances without the written consent of
Spinco and (iv) Spinco will not consent to the entry of any judgment with
respect to the Circumstances, or enter into any settlement which (x) requires
any payments by or continuing obligations of an EVI Indemnified Party, (y)
requires an EVI Indemnified Party to admit any facts or liability that could
reasonably be expected to adversely affect an EVI Indemnified Party in any
other matter or (z) does not include a provision whereby the plaintiff or
claimant in the matter releases the EVI Indemnified Parties from all Liability
with respect thereto, without the written consent of EVI. In the event Spinco
does not notify EVI within 15 days after EVI has given notice of the
Circumstance that Spinco is assuming the defense thereof, the EVI Indemnified
Parties may defend against, or enter into any settlement with respect to, the
Circumstance in any manner the EVI Indemnified Parties reasonably may deem
appropriate, at Spinco's sole cost. The foregoing provisions shall not apply
to the provisions of Section 5.7 of the Merger Agreement.
6.3 Insurance. Spinco shall not be obligated to indemnify the EVI
Indemnified Parties for amounts which shall have been covered and paid by
insurance of the EVI Indemnified Parties, provided, however, insurance shall
not include deductibles or self-insured retentions.
6.4 Scope of Indemnification. INDEMNIFICATION UNDER THIS ARTICLE
VI SHALL BE IN ADDITION TO ANY REMEDIES THE GULFMARK, EVI OR ANY EVI
INDEMNIFIED PARTY MAY HAVE AT LAW OR EQUITY. THERE SHALL BE NO TIME LIMIT AS
TO SPINCO'S INDEMNIFICATION OBLIGATIONS HEREUNDER.
6.5 Indemnity for Certain Environmental Liabilities. It is the
intention of the parties that the indemnity provided herein with respect to
Environmental Liabilities under CERCLA and
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corresponding provisions of state law is an agreement expressly not barred by
42 U.S.C. Section 9607(e)(i) and corresponding provisions of state law.
ARTICLE VII
ADDITIONAL COVENANTS OF SPINCO
7.1 Employment. Spinco shall offer employment or continued
employment from the Contribution Date to all employees of GulfMark, except
those employed by Ercon, on terms that are substantially the same as the terms
on which they were employed by GulfMark immediately prior to the Contribution
Date; provided, however, that nothing contained in this Section 7.1 is intended
to confer upon any employee who so continues to be employed or who accepts such
an offer of employment by Spinco ("Spinco Group Continuing Employees") any
right to continued employment after the Contribution Date. GulfMark hereby
consents to Spinco making such offers. Spinco shall recognize the service with
GulfMark through the Contribution Date of each Spinco Group Continuing Employee
and shall credit on the Contribution Date, such service with Spinco (i) for all
plan purposes under any employee benefit plan, arrangement or policy of the
Spinco Group in effect as of the Contribution Date in which they are then
participating and (ii) for eligibility and vesting purposes only under any
employee benefit plan, arrangement or policy for which they become eligible on
or following the Contribution Date.
7.2 Spinco Covenants. To assure the performance of the
obligations of Spinco under this Agreement, Spinco hereby covenants and agrees
that it will not, and will cause its Subsidiaries to not, merge, convert into
another entity, engage in a share exchange for a majority of its shares,
liquidate or transfer, assign or otherwise convey or allocate, directly or
indirectly, in one or more transactions, whether or not related, a majority of
Spinco's assets (determined in good faith by a board resolution prior to the
transaction on a fair value and consolidated basis) to any Person unless the
acquiring Person expressly assumes the obligations of Spinco hereunder, (ii)
executes and delivers to GulfMark and EVI an agreement agreeing to be bound by
each and every provision of this Agreement as if it were Spinco and (iii) has a
net worth on a pro forma basis after giving effect to the acquisition or
business combination equal to or greater than that of Spinco (on a consolidated
basis).
7.3 Tax Allocation Agreement. Prior to the Distribution,
GulfMark, Spinco and EVI shall enter into a Tax Allocation Agreement acceptable
in all respects to EVI and Spinco, which will set forth each party's rights and
obligations with respect to payments and refunds, if any, of Taxes for periods
before and after the Effective Date and related matters such as the filing of
tax returns and the conduct of audits and other tax proceedings.
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ARTICLE VIII
CONDITIONS
8.1 Conditions to Obligations of GulfMark. The obligations of the
GulfMark to consummate the Distribution hereunder shall be subject to the
fulfillment of each of the following conditions:
(a) All of the transactions contemplated by Article II
shall have been consummated.
(b) The recapitalization of Spinco in accordance with
Section 3.2 shall have been consummated.
(c) Each condition to the Closing of the Merger Agreement
set forth in Article VI thereof, other than conditions as to the
consummation of the Contribution and the Distribution, shall have been
fulfilled or waived by the party for whose benefit such condition
exists.
(d) The Board of Directors of GulfMark shall be
reasonably satisfied that, after giving effect to the Contribution, (i)
GulfMark will not be insolvent and will not have unreasonably small
capital with which to engage in its businesses and (ii) the GulfMark
surplus would be sufficient to permit, without violation of Section 170
of the DGCL, the Distribution.
ARTICLE IX
MISCELLANEOUS
9.1 Governing Law. All questions arising out of this Agreement
and the rights and obligations created herein, or its validity, existence,
interpretation, performance or breach shall be governed by the laws of the
State of Texas, without regard to conflict of laws principles.
9.2 Arbitration. Any disputes, claims or controversies connected
with, arising out of, or related to, this Agreement and the rights and
obligations created herein, or the breach, validity, existence or termination
hereof, shall be settled by Arbitration to be conducted in accordance with the
Commercial Rules of Arbitration of the American Arbitration Association, except
as such Commercial Rules may be changed by this Section 9.2. The disputes,
claims or controversies shall be decided by three independent arbitrators (that
is, arbitrators having no substantial economic or other material relationship
with the parties), one to be appointed by Spinco and one to be appointed by
EVI within fourteen days following the submission of the claim to the parties
hereto and the third to be appointed by the two so appointed within five days.
Should either party refuse or neglect to join in the timely appointment of the
arbitrators, the other party shall be entitled to select both arbitrators.
Should the two arbitrators fail timely to appoint a third arbitrator, either
party may apply to the Chief Judge of the United States
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District Court for the Southern District of Texas to make such appointment.
The arbitrators shall have ninety days after the selection of the third
arbitrator within which to allow discovery, hear evidence and issue their
decision or award and shall in good faith attempt to comply with such time
limits; provided, however, if two of the three arbitrators believe additional
time is necessary to reach a decision, they may notify the parties and extend
the time to reach a decision in thirty day increments, but in no event to
exceed an additional ninety days. Discovery of evidence shall be conducted
expeditiously by the Parties, bearing in mind the parties desire to limit
discovery and to expedite the decision or award of the arbitrators at the most
reasonable cost and expense of the parties. Judgment upon an award rendered
pursuant to such Arbitration may be entered in any court having jurisdiction,
or application may be made to such court for a judicial acceptance of the
award, and an order of enforcement, as the case may be. The place of
Arbitration shall be Houston, Texas. The decision of the arbitrators, or a
majority thereof, made in writing, shall be final and binding upon the parties
hereto as to the questions submitted, and each party shall abide by such
decision. Notwithstanding the provisions of this Section 9.2, neither party
shall be prohibited from seeking injunctive relief pending the completion of
any arbitration. The costs and expenses of the arbitration proceeding,
including the fees of the arbitrators and all costs and expenses, including
legal fees and witness fees, incurred by the prevailing party, shall be borne
by the losing party.
Solely for purposes of injunctive relief, orders in aid of arbitration
and entry of the arbitrator's award:
(a) each of the parties hereto irrevocably consents to
the non-exclusive jurisdiction of, and venue in, any state court
located in Harris County, Texas or any federal court sitting in the
Southern District of Texas in any suit, action or proceeding seeking
injunctive relief, arising out of or relating to this Agreement or any
of the other agreements contemplated hereby and any other court in
which a matter that may result in a claim for indemnification hereunder
by an EVI Indemnified Party may be brought with respect to any claim
for indemnification by an EVI Indemnified Party;
(b) each of the parties hereto waives, to the fullest
extent permitted by law, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding seeking
injunctive relief, orders in aid of arbitration or entry of an
arbitration arising out of or relating to this Agreement or any of the
other agreements contemplated hereby brought in any state court located
in Harris County, Texas or any federal court sitting in the Southern
District of Texas or any other court in which a matter that may result
in a claim for indemnification hereunder by an EVI Indemnified Party
may be brought with respect to any claim for indemnification by an EVI
Indemnified Party, and further irrevocably waive any claim that any
such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum;
(c) each of the parties hereto irrevocably designates,
appoints and empowers CT Corporation System, Inc. and any successor
thereto as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and in respect of its property,
service of any and all legal process, summons, notices and documents
which
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may be served in any suit, action or proceeding arising out of or
relating to this Agreement or any of the other agreements contemplated
hereby.
9.2 Notices. All notices and other communications required or
permitted to be given or made hereunder by either party hereto shall be in
writing and shall be deemed to have been duly given if delivered personally or
transmitted by first class registered or certified mail, postage prepaid,
return receipt requested, or sent by prepaid overnight delivery service, or
sent by cable, telegram, telefax or telex, to the parties at the following
addresses (or at such other addresses as shall be specified by the parties by
like notice):
If to Spinco:
GulfMark International, Inc.
5 Post Oak Park, Suite 1170
Houston, Texas 77027
Attn: Frank R. Pierce
Telephone: (713) 963-9522
Facsimile: (713) 963-9796
with a copy to:
Griggs & Harrison, P.C.
1301 McKinney, Suite 3200
Houston, Texas 77010
Attn: W. Garney Griggs
Telephone: (713) 651-0600
Facsimile: (713) 651-1944
If to GulfMark or EVI:
Energy Ventures, Inc.
5 Post Oak Park, Suite 1760
Houston, Texas 77027
Attn: Bernard J. Duroc-Danner
Telephone: (713) 297-8400
Facsimile: (713) 297-8488
and with a copy to:
Fulbright & Jaworski L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
Attn: Curtis W. Huff
Telephone: (713) 651-5151
Fax: (713) 651-5246
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9.4 Entire Agreement. This Agreement, including the Schedules,
Exhibits and other writings referred to herein or delivered pursuant hereto,
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, between the parties with respect to the subject matter
hereof.
9.5 Amendments and Waiver; Rights and Remedies. This Agreement
may be amended, superseded, canceled, renewed or extended, and the terms hereof
may be waived, only by a written instrument signed by the parties or, in the
case of a waiver, by the party waiving compliance. No delay on the part of
either party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of either party
of any such right, power or privilege, or any single or partial exercise of any
such right, power or privilege, preclude any further exercise thereof or the
exercise of any other such right, power or privilege.
9.6 Governing Law. The parties agree that the laws of the State
of Texas (without giving effect to the principles of conflicts of laws thereof)
shall govern the interpretation and enforcement of this Agreement and all
disputes arising under or in connection with this Agreement.
9.7 Binding Effect; Assignment; No Third Party Benefit.
(a) This Agreement and all the provisions hereof shall be
binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns.
(b) Nothing in this Agreement, express or implied, is
intended to or shall confer upon any person other than Spinco,
GulfMark, EVI, and the EVI Indemnified Parties any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
9.8 Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same agreement.
9.9 References. All references in this Agreement to Articles,
Sections and other subdivisions refer to the Articles, Sections and other
subdivisions of this Agreement unless expressly provided otherwise. The words
"this Agreement," "herein," "hereof," "hereby," "hereunder" and words of
similar import refer to this Agreement as a whole and not to any particular
subdivision unless expressly so limited.
9.10 Severability of Provisions. If any provision of this
Agreement is held to be unenforceable, this Agreement shall be considered
divisible and such provision shall be deemed inoperative to the extent it is
deemed unenforceable, and in all other respects this Agreement shall remain in
full force and effect; provided, however, that if any such provision may be
made
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enforceable by limitation thereof, then such provision shall be deemed to be so
limited and shall be enforceable to the maximum extent permitted by applicable
law.
9.11 Gender. Pronouns in masculine, feminine, and neuter genders
shall be construed to include any other gender, and words in the singular form
shall be construed to include the plural and vice versa, unless the context
otherwise requires.
9.12 Descriptive Headings. The descriptive headings herein are
inserted or convenience of reference only, do not constitute a part of this
Agreement, and shall not affect in any manner the meaning or interpretation of
this Agreement.
9.13 Currency. All dollar amounts in this Agreement are stated in
United States dollars.
[signatures of the following page]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers hereunto duly authorized as of the date
first above written.
GULFMARK: GULFMARK INTERNATIONAL, INC.
By: /S/ FRANK R. PIERCE
--------------------------------
Name: FRANK R. PIERCE
Title: EXECUTIVE VICE PRESIDENT
SPINCO: NEW GULFMARK INTERNATIONAL, INC.
By: /S/ FRANK R. PIERCE
-------------------------------
Name: FRANK R. PIERCE
Title: EXECUTIVE VICE PRESIDENT
EVI: ENERGY VENTURES, INC.
By: /S/ JAMES G. KILEY
-------------------------------
Name: JAMES G. KILEY
Title: VICE PRESIDENT
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As permitted by Item 601(b)(2) of Regulation S-K, the Company has not
filed any schedules with this Exhibit No. 2.3. Listed below is a brief
description of the omitted schedules. The Company agrees to furnish
supplementally a copy of any of such omitted schedules to the Commission upon
request.
Schedules
- ---------
1.4(f) Corporate Office Assets
1.4(g) Louisiana Assets, Other Than Inventory and Equipment
1.5(e) List of Properties Previously Owned
1.30 List of GulfMark Subsidiaries Owned Now or Previously
1.43 List of Retained Liabilities
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