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EXHIBIT 99.2
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. ss. 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. ss. 7401 et seq., the Clean
Water Act, 33 U.S.C. ss. 1251 et seq., the Resource Conservation Recovery Act,
42 U.S.C. ss. 6901 et seq., the Superfund Amendments and Reauthorization Act, 42
U.S.C. ss. 11011 et seq., the Toxic Substances Control Act, 15 U.S.C. ss. 2601
et seq., the Water Pollution Control Act, 33 U.S.C. ss. 1251, et seq., the Safe
Drinking Water Act, 42 U.S.C. ss. 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 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
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. ss. 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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20
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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00
Xxxxxxxx Xxxxx 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
Xxxxxx 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 Xxxxxx 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.
0 Xxxx Xxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxxx, P.C.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: W. Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to GulfMark or EVI:
Energy Ventures, Inc.
0 Xxxx Xxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Duroc-Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and with a copy to:
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
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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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25
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/ Xxxxx X. Xxxxxx
--------------------------------------------
Xxxxx X. Xxxxxx, Executive Vice President
SPINCO: NEW GULFMARK INTERNATIONAL, INC.
By:/s/ Xxxxx X. Xxxxxx
--------------------------------------------
Xxxxx X. Xxxxxx, Executive Vice President
EVI: ENERGY VENTURES, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Xxxxx X. Xxxxx, Vice President
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