posam
As filed with the Securities and Exchange Commission on March 2, 2010
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Registration No. 333-153459 |
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GULFMARK OFFSHORE, INC.
(Exact Name of Registrant as specified in its charter)
Delaware
(State of Other Jurisdiction of Incorporation or Organization)
76-0526032
(I.R.S. Employer Identification No.)
10111 Richmond Avenue, Suite 340
Houston, Texas 77042
(713) 963-9522
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrants Principal Executive Offices)
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Quintin V. Kneen
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Copy to: |
Executive Vice President
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W. Garney Griggs, Esq. |
GulfMark Offshore, Inc.
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Strasburger & Price, LLP |
10111 Richmond Avenue, Suite 340
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1401 McKinney, Suite 2200 |
Houston, Texas 77042
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Houston, Texas 77010 |
(713) 963-9522
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(713) 951-5600 |
(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code, of Agent for Service)
Approximate date of commencement of proposed sale to the public: From time to time after the
effective date of the registration statement as converted by this
Post-Effective Amendment No. 2.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the
following
box. o
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following
box.
þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act.
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Large Accelerated Filer þ
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Accelerated Filer o
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Non-Accelerated Filer o
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Smaller Reporting Company o |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Proposed maximum |
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Amount to be |
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Proposed maximum |
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aggregate offering |
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Amount of |
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Title of each class of securities to be registered(8) |
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registered |
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offering price per unit |
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price |
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registration fee |
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Common Stock(1), Preferred Stock(2)
Debt Securities(3), and Warrants to
Purchase Common Stock(4) |
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(5) |
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(5) |
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$400,000,000(5)(6) |
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$15,720(7) |
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Total |
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$400,000,000 |
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$15,720
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(1) |
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Subject to note (5) below, we have registered an indeterminate number of shares of common
stock that we may issue from time to time at indeterminate prices, including shares issuable
upon conversion of preferred stock that is convertible into common stock, and including shares
issuable upon exercise of warrants. |
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(2) |
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Subject to note (5) below, we have registered an indeterminate number of shares of preferred
stock that we may issue from time to time at indeterminate prices. Shares of preferred stock
may be convertible into shares of common stock. |
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(3) |
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Subject to note (5) below, we have registered an indeterminate amount of debt securities that
we may issue from time to time at indeterminate prices. |
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(4) |
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Subject to note (5) below, we have registered an indeterminate number of warrants that we may
issue from time to time at indeterminate prices entitling the holder to purchase shares of
common stock. |
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(5) |
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Pursuant to General Instruction II.D of Form S-3 of the Securities Act of 1933, as amended
(the Securities Act), the fee table does not need to specify by each class the amount
registered, the proposed maximum offering price per unit, and proposed maximum aggregate
offering price. |
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(6) |
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Represents the principal amount of any debt securities issued at, or at a premium to, their
principal amounts, and the issue price rather than the principal amount of any debt securities
issued at an original issue discount; the liquidation preference of any preferred stock; the
offering price of any common stock; the issue price of any warrants; and the exercise price of
any warrants; all of which together will not exceed $400,000,000. Pursuant to Rule 457(o), the
registration fee was calculated on the aggregate maximum offering price of the common stock,
preferred stock, debt securities, and warrants. |
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(7) |
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The total filing fee was previously paid in connection with the filing on September 12, 2008,
of Registration Statement on Form S-3ASR, Registration No. 333-153459 (the Shelf Registration
Statement). The registration fee was calculated at the then statutory rate of $39.30 per
$1,000,000 of securities registered. This Post-Effective Amendment No. 2 does not register any
additional amount of securities. We are filing this Post-Effective Amendment No. 2 to convert
the Shelf Registration Statement to a non-ASR registration statement on
Form S-3. |
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(8) |
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Pursuant to Rule 416, the Shelf Registration Statement, as previously amended and as amended
hereby, also covers an indeterminate number of shares of common stock or preferred stock that
may be issued as a result of stock splits, stock dividends, or similar transactions. |
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON
SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR
UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND
EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
EXPLANATORY NOTES
On February 24, 2010, GulfMark Offshore, Inc., a Delaware corporation (the Predecessor
Registrant), merged with and into its wholly owned subsidiary, New GulfMark Offshore, Inc., a
Delaware corporation (the Registrant), pursuant to an agreement and plan of reorganization, dated
as of October 14, 2009 (the Reorganization Agreement), with Registrant as the surviving
corporation (such transaction, the Reorganization). The Reorganization was adopted by the
requisite vote of stockholders at the special meeting of the stockholders of the Predecessor
Registrant on February 23, 2010. At the effective time of the Reorganization, the Registrant
changed its name from New GulfMark Offshore, Inc. to GulfMark Offshore, Inc. The business,
operations, assets and liabilities of the Registrant immediately after the Reorganization were the
same as business, operations, assets and liabilities of the Predecessor Registrant immediately
prior to the Reorganization.
At the effective time of the Reorganization and pursuant to the Reorganization Agreement, each
outstanding and treasury share of the common stock of the Predecessor Registrant automatically
converted into one share of Class A common stock of the Registrant, which is subject to certain
transfer and ownership restrictions designed to protect our eligibility to transport merchandise
and passengers for hire in U.S. territorial waters. The issuance of the shares of Class A common
stock was registered under the Securities Act of 1933, as amended (the Securities Act) pursuant
to the Registrants registration statement on Form S-4 (File No. 333-162612), which was declared
effective by the U.S. Securities and Exchange Commission on January 22, 2010. Shares of Class A
common stock of the Registrant trade on the same exchange, the New York Stock Exchange, and under
the same symbol, GLF, that the shares of the Predecessor Registrants common stock traded on and
under prior to the Reorganization.
The Predecessor Registrant filed Registration Statement on Form S-3ASR, Registration No.
333-153459, on September 12, 2008 (the Shelf Registration Statement). The Shelf Registration
Statement provided for the offering by the Predecessor Registrant from time to time pursuant to
Rule 415 under the Securities Act of any combination of the Predecessor Registrants common stock,
preferred stock, debt securities, and/or warrants to purchase its common stock in one or more
offerings of up to a total dollar amount of $400,000,000. On February 24, 2010, the Registrant
filed Post-Effective Amendment No. 1 to the Shelf Registrant Statement in accordance with Rule
414(d) under the Securities Act, as successor to the Predecessor Registrant, to expressly adopt the
Shelf Registration Statement (other than as set forth in Post-Effective Amendment No. 1 to the
Shelf Registration Statement) as its own for all purposes of the Securities Act and the Securities
Exchange Act of 1934, as amended.
This Post-Effective Amendment No. 2 is being filed because, upon the filing of its Annual
Report on Form 10-K for the year ended December 31, 2009, the Registrant no longer qualified as a
well-known seasoned issuer (as such term is defined in Rule 405 of the Securities Act). The reason
the Registrant no longer qualified as a well-known seasoned issuer is because the worldwide market
value of its outstanding voting and non-voting common equity held by non-affiliates was less than
$700 million when calculated in accordance with Rule 405 of the Securities Act. Pursuant to
Post-Effective Amendment No. 1 to the Shelf Registration Statement, the Registrant previously
amended the Shelf Registration Statement so that it conformed to the requirements that apply to a
registration statement on Form S-3 filed in reliance on General Instructions I.B.1 or I.B.2. The
Registrant is now filing this Post-Effective Amendment No. 2 to convert the Shelf Registration
Statement to the proper submission type for a non-automatic shelf registration statement.
All filing fees with respect to the registration of the securities registered hereunder were
previously paid in connection with the filing of the Shelf Registration Statement by the
Predecessor Registrant.
Unless the context requires otherwise, references to GulfMark, the Company, the
Registrant, we, us and our refer to the Registrant, its direct or indirect subsidiaries, and
the Predecessor Registrant.
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The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not
permitted.
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SUBJECT TO COMPLETION, DATED
MARCH 2, 2010
Prospectus
$400,000,000
GulfMark Offshore,
Inc.
Common Stock
Preferred Stock
Debt Securities
and/or Warrants to purchase
Common Stock
By this prospectus, or a supplement to this prospectus, we may
from time to time offer up to $400,000,000 in aggregate initial
offering price of common stock, preferred stock, debt
securities,
and/or
warrants to purchase our common stock. This prospectus provides
you with a general description of these securities.
We may offer these securities to or through underwriters and
also to other purchasers or through agents. The names of the
underwriters will be set forth in a prospectus supplement. The
prospectus supplement may also update or change the information
contained in this prospectus. You should read this prospectus
and any related prospectus supplement carefully before you
invest in our securities.
Our common stock is listed on the New York Stock Exchange under
the symbol GLF. The last reported sale price of our
common stock on March 1, 2010 was $25.20 per share.
Investing in our common stock involves risks. You should
carefully consider and evaluate all of the information contained
in the prospectus, any prospectus supplement, and in the
documents incorporated into this prospectus by reference before
you decide to purchase our securities. In particular, you should
consider the risks described in Risk Factors at
page 3 of this prospectus or in any prospectus supplement
and in the documents incorporated into this prospectus before
making a decision to invest in our securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is March 2, 2010
TABLE OF
CONTENTS
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Page
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ii
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iii
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iii
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iii
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3
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21
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24
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24
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24
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24
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ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the SEC under the Securities Act of 1933, as amended
(the Securities Act), using a shelf registration
process. Under this shelf registration process, we may offer
from time to time any combination of the securities described in
this prospectus in one or more offerings up to a total dollar
amount of $400,000,000. This prospectus provides you with a
general description of the securities that we may offer. Each
time we offer securities, we will provide a prospectus
supplement that will contain specific information about the
terms of that offering. The prospectus supplement may also add
to or update other information contained in this prospectus. You
should read both this prospectus and the accompanying prospectus
supplement, together with additional information described below
under the headings Where You Can Find More
Information and Documents Incorporated by
Reference.
On February 24, 2010, our predecessor entity, GulfMark
Offshore, Inc., a Delaware corporation (Old
GulfMark), merged with and into the Company (previously
named New GulfMark Offshore, Inc.) pursuant to an
agreement and plan of reorganization, dated as of
October 14, 2009 (the Reorganization
Agreement), where we were the surviving corporation (such
transaction, the Reorganization). The Reorganization
was adopted by the requisite vote of the Old GulfMarks
stockholders at a special meeting of the stockholders of Old
GulfMark on February 23, 2010. At the effective time of the
Reorganization, we changed our name from New GulfMark
Offshore, Inc. to GulfMark Offshore, Inc.
Unless the context requires otherwise, references in this
prospectus to GulfMark, the Company,
the Registrant, we, us and
our refer to GulfMark Offshore, Inc. (formerly known
as New GulfMark Offshore, Inc.), its direct or indirect
subsidiaries, and its predecessor, Old GulfMark. Our principal
office is located at 10111 Richmond Ave., Suite 340,
Houston, TX 77042 and our phone number is
(713) 963-9522.
Our internet address is www.gulfmark.com. Information on our
website is not a part of this prospectus.
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT. WE HAVE NOT AUTHORIZED ANYONE ELSE TO PROVIDE YOU
WITH DIFFERENT INFORMATION. YOU SHOULD NOT ASSUME THAT THE
INFORMATION IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT IS
ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THAT
DOCUMENT. OUR BUSINESS, FINANCIAL CONDITION, RESULTS OF
OPERATIONS AND PROSPECTS MAY HAVE CHANGED SINCE THOSE DATES.
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WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements
and other information with the SEC. Our SEC filings are
available to the public over the internet at the SECs web
site at
http://www.sec.gov.
Our website address is www.gulfmark.com. We make available free
of charge on or through our website our annual report on
Form 10-K,
quarterly reports on
Form 10-Q,
and current reports on
Form 8-K,
and amendments to those reports filed or furnished pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the Exchange Act) as soon as
reasonably practicable after we electronically file such
material with, or furnish it to, the SEC. Information on our
website is not incorporated by reference into this prospectus or
made a part hereof for any purpose. You may also read and copy
any document we file at the SECs Public Reference Room at
100 F Street, N.E., Washington, DC 20549. Please call
the SEC at
1-800-SEC-0330
for further information on operation of the Public Reference
Room and copy charges.
DOCUMENTS
INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference the
information we file with the SEC, which means that we can
disclose important information to you by referring to other
documents on file with the SEC. Some information that we
currently have on file is incorporated by reference and is an
important part of this prospectus. Some information that we file
later with the SEC will automatically update and supersede this
information.
We incorporate by reference the following documents that we have
filed or may file with the SEC pursuant to the Exchange Act
(excluding such documents or portions thereof that are not
deemed filed under the Exchange Act in accordance
with the Exchange Act and applicable SEC rules and regulations):
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Our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2009;
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Our Current Reports on
Form 8-K
filed February 24, 2010 (which, among other matters,
registers our Class A common stock under Section 12(b)
of the Exchange Act) and March 1, 2010; and
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all documents we subsequently file pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
after the date of this prospectus and prior to the termination
of this offering.
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Whenever after the date of this prospectus, we file reports or
documents under Section 13(a), 13(c), 14, or 15(d) of the
Securities Exchange Act of 1934, as amended, those reports and
documents will be deemed to be part of this prospectus from the
time they are filed. Any statements made in this prospectus or
in a document incorporated or deemed to be incorporated by
reference in this prospectus will be deemed to be modified or
superseded for purposes of this prospectus to the extent that a
statement contained in this prospectus, in a prospectus
supplement, or in any subsequently filed document that is also
incorporated or deemed to be incorporated by reference in this
prospectus modifies or supersedes the statement. Nothing in this
prospectus will be deemed to incorporate information furnished
by us that, pursuant to SEC rules, is not deemed
filed for purposes of the Exchange Act.
Upon your written or oral request, we will provide you with a
free copy of any of these filings, and any other information we
have incorporated herein by reference. You may request copies by
writing or telephoning us at: 10111 Richmond Ave.,
Suite 340, Houston, Texas 77042,
(713) 963-9522,
Attention: Quintin V. Kneen.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and any accompanying supplement (including
documents incorporated by reference) contain statements that are
forward-looking statements within the meaning of
Section 27A of the Securities Act and Section 21E of
the Exchange Act.
Such forward-looking statements typically include words or
phrases such as anticipate, estimate,
projects, believes, and words or phrases
of similar import. Forward-looking statements and other
statements that are not historical facts concerning, among other
things, market conditions, the demand for
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marine support and transportation services and future capital
expenditures, are subject to certain risks, uncertainties and
assumptions, including without limitation:
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operational risk,
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catastrophic or adverse sea or weather conditions,
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dependence on the oil and natural gas industry,
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volatility in oil and gas prices,
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delay or cost overruns on construction projects or insolvency of
the shipbuilders,
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lack of shipyard or equipment availability,
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ongoing capital expenditure requirements,
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uncertainties surrounding environmental and government
regulation,
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risks relating to compliance with the Jones Act,
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risk relating to leverage,
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risks of foreign operations,
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risk of war, sabotage, piracy or terrorism,
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assumptions concerning competition,
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risks of currency fluctuations, and
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such other factors as may be discussed under the caption
Risk Factors beginning on page 3 of this
prospectus and in our other reports filed with the Securities
and Exchange Commission, or SEC.
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These statements are based on certain assumptions and analyses
made by us in light of our experience and perception of
historical trends, current conditions, expected future
developments and other factors we believe are appropriate under
the circumstances. Such statements are subject to risks and
uncertainties, including the risk factors discussed above as
well as those discussed in the accompanying supplement
(including documents incorporated by reference), general
economic and business conditions, the business opportunities
that may be presented to and pursued by us, changes in law or
regulations and other factors, many of which are beyond our
control. There can be no assurance that we have accurately
identified and properly weighed all of the factors which affect
market conditions and demand for our vessels, that the
information upon which we have relied is accurate or complete,
that our analysis of the market and demand for our vessels is
correct or that the strategy based on such analysis will be
successful.
Each forward-looking statement speaks only as of the date of
this prospectus or the document in which it appears and we
undertake no obligation to publicly update or revise any
forward-looking statements, whether as a result of new
information, future events or otherwise.
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SUMMARY
This summary highlights some basic information from the
prospectus. It likely does not contain all of the information
that is important to you. You should carefully read the entire
prospectus, any supplemental prospectus, and the other documents
incorporated by reference to understand fully the terms of the
offering, as well as other considerations that are important to
you. On February 24, 2010, our predecessor entity, Old
GulfMark, merged with and into the Company pursuant to an
agreement and plan of reorganization, dated as of
October 14, 2009 where we were the surviving corporation in
the Reorganization. The Reorganization was adopted by the
requisite vote of the Old GulfMarks stockholders at a
special meeting of the stockholders of Old GulfMark on
February 23, 2010. At the effective time of the
Reorganization, the Company changed its name from New
GulfMark Offshore, Inc. to GulfMark Offshore,
Inc. The business, operations, assets and liabilities of
the Company immediately after the Reorganization are the same as
business, operations, assets and liabilities of Old GulfMark
immediately prior to the Reorganization. Unless the context
requires otherwise, references in this prospectus to
GulfMark, the Company, the
Registrant, we, us and
our refer to GulfMark Offshore, Inc. (formerly known
as New GulfMark Offshore, Inc.), its direct or indirect
subsidiaries, and its predecessor, Old GulfMark.
THE
COMPANY
We provide offshore marine services primarily to companies
involved in offshore exploration and production of oil and
natural gas. Our vessels transport materials, supplies and
personnel to offshore facilities, as well as move and position
drilling structures. The majority of our operations are
conducted in the North Sea, offshore Southeast Asia and offshore
in the Americas. We also contract vessels into other regions to
meet our customers requirements.
Our principal executive offices are located at 10111 Richmond
Avenue, Suite 340, Houston, TX 77042, and our telephone
number at that address is
(713) 963-9522.
THE
OFFERING
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Common Stock, Preferred Stock, Debt Securities, and Warrants to
Purchase Common Stock |
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We may issue, in one or more offerings, up to $400,000,000 of
any combination of common stock, preferred stock, debt
securities, or warrants to purchase common stock. |
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Common Stock. We may issue shares of our
common stock from time to time. Our certificate of incorporation
authorizes two classes of common stock, Class A and
Class B, both $0.01, par value per share. As of
March 1, 2010, we have 25,995,711 shares of
Class A Common Stock issued and outstanding, including
treasury shares, and we have issued no shares of Class B
Common Stock. Subject to the Maritime Restrictions discussed in
Description of Common Stock on page 8 of this
prospectus and which are applicable only to the Class A
Common Stock, holders of our common stock are entitled to one
vote for each share on all matters submitted to a vote of our
stockholders. Our stockholders do not have the power to call a
meeting. We have no plans to pay any cash dividends on our
common stock in the near future. Subject to our creditors and to
any preferential rights of any then outstanding preferred stock,
in the event we liquidate, dissolve, or wind up our affairs, the
holders of our common stock will share ratably, according to the
number of shares held, in our remaining assets, if any. |
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Preferred Stock. We may issue shares of our
preferred stock from time to time, in one or more series. Our
certificate of incorporation authorizes us to issue, without
stockholder approval, up to 2,000,000 |
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shares of preferred stock, $0.01 par value per share, as to
which our board of directors may fix the designation, terms, and
relative rights and preferences. As of the date of this
prospectus, we have not issued any preferred stock. |
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Debt Securities. We may issue debt securities
from time to time, in one or more series. We currently have an
indenture, and could issue debt securities under it, a
supplemental indenture, or a new indenture. Unless otherwise
described in a supplemental prospectus, the debt securities will
be our general unsecured obligations and will rank equally and
ratably with all of our other senior unsecured and
unsubordinated indebtedness, and will be issued in fully
registered form and in denominations of $1,000 and integral
multiples thereof. |
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Warrants. We may issue from time to time
warrants for the purchase of common stock independently or
together with other securities. The warrants may be attached to
or separate from the other securities. We may issue warrants in
one or more series. Unless otherwise specified in a prospectus
supplement, the warrants will be represented by certificates,
and exchanged under the terms outlined in the warrant agreement. |
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Use of proceeds |
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Unless we state otherwise in a prospectus supplement, we will
use the net proceeds from the sale of securities sold by us for
general corporate purposes, which may include the repayment of
debt, acquisitions, capital expenditures and working capital. We
may temporarily invest funds we receive from the sale of
securities by us that we do not immediately need for these
purposes. |
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Risk Factors |
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See the Risk Factors section beginning on
page 3 of this prospectus, as well as any other cautionary
statements throughout or incorporated by reference in this
prospectus, before investing in us. |
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New York Stock Exchange symbol |
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GLF |
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Ratio of Earnings to Fixed Charges |
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See the Ratio of Earnings to Fixed Charges section
on page 24 of this prospectus. |
2
RISK
FACTORS
An investment in our securities involves risks. Before you
invest in our securities, you should carefully consider the risk
factors included in our most recent Annual Report on
Form 10-K,
subsequent Quarterly Reports on
Form 10-Q
and those that may be included in the applicable prospectus
supplement, as well as risks described in
Managements Discussion and Analysis of Financial
Condition and Results of Operations and cautionary notes
regarding forward-looking statements included or incorporated by
reference herein, together with all of the other information
included in this prospectus, any prospectus supplement and the
documents we incorporate by reference.
If any of these risks were to materialize, our business, results
of operations, cash flows and financial condition could be
materially adversely affected. In that case, our ability to pay
dividends to our stockholders or pay interest on, or the
principal of, any debt securities may be reduced, the trading
price of our securities could decline and you could lose all or
part of your investment.
THE
COMPANY
GulfMark Offshore, Inc. is a Delaware corporation that, through
itself and its subsidiaries, provides offshore marine services
primarily to companies involved in the offshore exploration and
production of oil and natural gas. Our vessels transport
materials, supplies and personnel to offshore facilities, as
well as move and position drilling structures. The majority of
our operations are conducted in the North Sea, offshore
Southeast Asia and offshore in the Americas. We also contract
vessels into other regions to meet our customers
requirements. Our principal executive offices are located at
10111 Richmond Avenue, Suite 340, Houston, TX 77042,
and our telephone number at that address is
(713) 963-9522.
On February 24, 2010, our predecessor entity, Old GulfMark,
merged with and into the Company pursuant to the Reorganization
Agreement, where we were the surviving corporation in the
Reorganization. The Reorganization was adopted by the requisite
vote of Old GulfMarks stockholders at a special meeting of
the stockholders of Old GulfMark on February 23, 2010. At
the effective time of the Reorganization, the Company changed
its name from New GulfMark Offshore, Inc. to
GulfMark Offshore, Inc. The business, operations,
assets and liabilities of the Company immediately after the
Reorganization are the same as business, operations, assets and
liabilities of Old GulfMark immediately prior to the
Reorganization.
At the effective time of the Reorganization and pursuant to the
Reorganization Agreement, each outstanding and treasury share of
the common stock of Old GulfMark automatically converted into
one share of Class A common stock of the Company, which is
subject to certain transfer and ownership restrictions designed
to protect our eligibility to transport merchandise and
passengers for hire in U.S. territorial waters. The
issuance of the shares of Class A common stock was
registered under the Securities Act of 1933, as amended,
pursuant to the Companys registration statement on
Form S-4
(File
No. 333-162612),
which was declared effective by the U.S. Securities and
Exchange Commission on January 22, 2010. Shares of
Class A common stock of the Company trade on the same
exchange, the New York Stock Exchange, and under the same
symbol, GLF, that the shares of Old GulfMark common
stock traded on and under prior to the Reorganization.
DESCRIPTION
OF SECURITIES WE MAY OFFER
We may issue, in one or more offerings, any combination of
common stock, preferred stock, debt securities, or warrants to
purchase common stock. This prospectus contains a summary of the
general terms of the various securities that we may offer.
Description
of Common Stock
We have summarized certain provisions of our certificate of
incorporation and bylaws below, but you should read them for a
more complete description of the rights of holders of shares of
our common stock.
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General
Our certificate of incorporation authorizes us to issue up to
60 million shares of Class A common stock, par value
$0.01 per share, and up to 60 million shares of
Class B common stock, par value $0.01 per share. As of
March 1, 2010, 25,995,711 shares of our Class A
common stock were issued and outstanding (including treasury
shares) and no shares of Class B common stock have been
issued. The shares of our Class A common stock are subject
to the Maritime Restrictions as described under
Maritime Restrictions below.
Subject to the limitations in our certificate of incorporation
or applicable law, the shares of our Class A common stock
have, and if issued, the shares of our Class B common stock
will have, all rights ordinarily associated with shares of
common stock under Delaware law, including, but not limited to,
general voting rights and general rights to dividends and
distributions and, except for the Maritime Restrictions and
conversion provisions, which are only applicable to the shares
of our Class A common stock, the rights of the shares of
our Class A common stock and our Class B common stock
are identical.
The shares of our Class B common stock are not subject to
the Maritime Restrictions. Shares of our Class B common
stock were not issued in the Reorganization. Initially, the
shares of our Class B common stock are only issuable upon
the conversion of all of the outstanding and treasury shares of
our Class A common stock into shares of our Class B
common stock in the event our Board of Directors determines that
either:
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the U.S. ownership requirements of the applicable
U.S. maritime and vessel documentation laws are no longer
applicable to us (or have been amended so that the Maritime
Restrictions are no longer necessary); or
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the elimination of such restrictions is in our best interest and
the best interest of our stockholders. Thereafter, the converted
shares of our Class A common stock will be canceled, will
no longer be outstanding and cannot be reissued.
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Voting
and Dividend Rights
Each record holder of shares of our common stock is entitled to
one vote per share held by such holder on all matters on which
stockholders generally are entitled to vote; provided, however,
that except as otherwise required by applicable law, a holder of
shares of our common stock will not be entitled to vote on any
amendment to our certificate of incorporation that relates
solely to the terms of one or more outstanding series of our
preferred stock if the holders of such affected series are
entitled under our certificate of incorporation to vote on any
such amendment. Except as may be provided in our certificate of
incorporation or by applicable law, the holders of shares of our
common stock have the exclusive right to vote in the election of
directors and for all other purposes. The voting rights of
shares of our Class A common stock are subject to
additional restrictions described under
Maritime Restrictions below. If issued,
the shares of our Class B common stock will not be subject
to the Maritime Restrictions.
Subject to any preferences that may be applicable to any
then-outstanding series of preferred stock, holders of shares of
our common stock are entitled to receive dividends and
distributions on such shares at such times and amounts as may be
declared by our Board of Directors out of funds legally
available for that purpose. The dividend and distribution rights
of the shares of our Class A common stock are subject to
additional restrictions described under
Maritime Restrictions below. If issued,
shares of our Class B common stock will not be subject to
the Maritime Restrictions. The number of authorized shares of
our common stock may be increased or decreased (but not below
the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority in voting power of
our outstanding capital stock irrespective of the class voting
provisions of Section 242(b)(2) of the General Corporation
Law of the State of Delaware.
We have no specific plans to pay any dividends on the shares of
our common stock in the foreseeable future. Certain of the
financing arrangements that we assumed in the Reorganization
restrict the payment of cash dividends.
4
Number
of Directors and Vacancies and Newly Created
Directorships
Subject to any special rights of holders of any then-outstanding
series of preferred stock to elect directors, our certificate of
incorporation provides that our Board of Directors will have no
less than three and no more than fifteen directors, with the
precise number of directors to be fixed in the manner prescribed
in the bylaws. Our bylaws provide for the number of directors to
be determined from time to time by a resolution of the Board of
Directors. Newly created directorships or vacancies occurring on
the Board of Directors may be filled by the vote of a majority
of the remaining directors then in office, even though less than
a quorum, or by a plurality of votes cast at a meeting of our
stockholders. Any director elected to fill a newly created
directorship or vacancy on the Board of Directors serves until
the expiration of the term of office of the director whom he or
she replaced or until his or her successor is elected and
qualified, subject to such directors earlier death,
resignation, disqualification or removal.
Special
Meetings of the Stockholders
Subject to any rights of holders of any then-outstanding series
of preferred stock or applicable law, our bylaws provide that a
special meeting of stockholders may only be called by the Board
of Directors pursuant to a resolution adopted by a majority of
directors. Subject to the foregoing provisions, holders of
shares of our common stock do not have the power to call a
special meeting.
Stockholder
Action by Written Consent
Our certificate of incorporation does not prohibit our
stockholders from acting by written consent; therefore, under
Delaware law, our stockholders may take any action which could
otherwise be taken at any annual or special meeting of the
stockholders by written consent without a meeting, notice or
vote. Our bylaws provide for a set of mechanics for such
stockholder consent solicitations by, among other things,
requiring a stockholder seeking to take such action to make a
written request of our Board of Directors to set a record date
for the consent solicitation and establishing other ministerial
functions.
Liquidation
or Dissolution
In the event we liquidate, dissolve or wind up our affairs,
prior to any distributions to the holders of our common stock,
our creditors and the holders of our preferred stock, if any,
will receive any payments to which they are entitled. Subsequent
to those payments, the holders of our common stock will share
ratably, according to the number of shares of common stock held,
in our remaining assets, if any. Notwithstanding the foregoing,
the rights of owners of shares of our Class A common stock
to receive distributions (upon liquidation or otherwise) are
subject to the Maritime Restrictions as described under
Maritime Restrictions below.
Conversion
The conversion of shares of our Class A common stock into
shares of our Class B common stock is described under
General above.
Redemption
Shares of our common stock are not redeemable (except for any
shares of our Class A common stock that are Excess Shares)
and have no subscription or preemptive rights. For a description
of our right to redeem Excess Shares, see
Maritime Restrictions Redemption
of Excess Shares below.
Transfer
Agent and Registrar
The Transfer Agent and Registrar for shares of our common stock
is American Stock Transfer & Trust Company.
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Limitation
of Directors Liability and
Indemnification
Our certificate of incorporation contains provisions eliminating
the personal liability of our directors to the Company and our
stockholders for monetary damages for breaches of their
fiduciary duties as directors to the fullest extent permitted by
the General Corporation Law of the State of Delaware or any
other applicable law as it exists on the date of our certificate
of incorporation or as it may be amended. The General
Corporation Law of the State of Delaware prohibits such
elimination of personal liability of a director for:
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any breach of the directors duty of loyalty to us or our
stockholders;
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acts or omissions not in good faith or involving intentional
misconduct or a knowing violation of law;
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the payment of dividends, stock repurchases or redemptions that
are unlawful under Delaware law; and
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any transaction in which the director receives an improper
personal benefit.
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These provisions only apply to breaches of duty by directors as
directors and not in any other corporate capacity, such as
officers. In addition, these provisions limit liability only for
breaches of fiduciary duties under the General Corporation Law
of the State of Delaware and not for violations of other laws
such as the U.S. Federal securities laws and
U.S. Federal and state environmental laws. As a result of
these provisions in our certificate of incorporation, our
stockholders may be unable to recover monetary damages against
directors for actions taken by them that constitute negligence
or gross negligence or that are in violation of their fiduciary
duties. However, our stockholders may obtain injunctive or other
equitable relief for these actions. These provisions also reduce
the likelihood of derivative litigation against directors that
might benefit us.
In addition, our certificate of incorporation and bylaws provide
that we will indemnify and advance expenses to, and hold
harmless, each of our directors and officers (each, an
indemnitee), to the fullest extent permitted by
applicable law, who was or is made or is threatened to be made a
party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he, or a person for
whom he is the legal representative, is or was a director or
officer of the Company or, while a director or officer of the
Company, is or was serving at our request as a director,
officer, employee or agent of another corporation or of a
partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit
plans, against all liability and loss suffered and expenses
(including attorneys fees) reasonably incurred by such
indemnitee. Notwithstanding the preceding sentence, except as
otherwise provided in our certificate of incorporation and
bylaws, we will be required under our certificate of
incorporation and bylaws to indemnify, or advance expenses to,
an indemnitee in connection with a proceeding (or part thereof)
commenced by such indemnitee only if the commencement of such
proceeding (or part thereof) by the indemnitee was authorized by
our Board of Directors.
Also on February 24, 2010, we entered into indemnification
agreements with each of our directors and certain of our
officers (each, an Contractual Indemnitee). Pursuant
to the indemnification agreements, we will be obligated to
indemnify the applicable Contractual Indemnitee to the fullest
extent permitted by applicable law in the event that such
Contractual Indemnitee, by reason of such Contractual
Indemnitees relationship with us, was, is or is threatened
to be made a party to or participant in any threatened, pending
or completed action or proceeding, other than an action or
proceeding by or in our right against all expenses, judgments,
penalties, fines (including any excise taxes assessed on the
Contractual Indemnitee with respect to an employee benefit plan)
and amounts paid in settlement actually and reasonably incurred
by such Contractual Indemnitee in connection with such action or
proceeding, provided that such Contractual Indemnitee acted in
good faith and in a manner he or she reasonably believed to be
in or not opposed to our best interests, and, with respect to
any criminal action or proceeding, provided that he or she also
had no reasonable cause to believe his or her conduct was
unlawful. We will also be obligated to indemnify such
Contractual Indemnitee to the fullest extent permitted by
applicable law in the event that such Contractual Indemnitee, by
reason of such Contractual Indemnitees relationship with
us, was, is or is threatened to be made a party to or
participant in any threatened, pending or completed action or
proceeding brought by or in our right to procure a judgment in
our favor, against all expenses actually and reasonably incurred
by such Contractual Indemnitee in connection with such action or
proceeding, provided that such Contractual Indemnitee acted in
good faith and in a manner he or she reasonably believed to be
in or not opposed to our
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best interests. Notwithstanding the foregoing sentence, no
indemnification against expenses incurred by such Contractual
Indemnitee in connection with such an action or proceeding
brought by or in our right will be made in respect of any claim,
issue or matter as to which such Contractual Indemnitee is
adjudged to be liable to us or if applicable law prohibits such
indemnification being made; provided, however, that, in such
event, if applicable law so permits, indemnification against
such expenses will nevertheless be made by us if and to the
extent that the court in which such action or proceeding has
been brought or is pending determines that, despite the
adjudication of liability but in view of all the circumstances
of the case, the Contractual Indemnitee is fairly and reasonably
entitled to indemnity for such expenses. The indemnification
agreements also provide for the advancement of all reasonable
expenses incurred by such Contractual Indemnitee in connection
with any action or proceeding covered by the indemnification
agreement. The Contractual Indemnitee will be required to repay
any amounts so advanced if, and to the extent that, it is
ultimately determined that he or she is not entitled to be
indemnified by us against such expenses. The Contractual
Indemnitee will further be required to return any such advance
to us which remains unspent at the conclusion of the action or
proceeding to which the advance related.
In addition, the indemnification agreements provide that we will
use all commercially reasonable efforts to obtain and maintain
in effect during the entire period for which we are obligated to
indemnify a Contractual Indemnitee under his or her
indemnification agreement, one or more insurance policies
providing our directors and officers coverage for losses from
wrongful acts and omissions and to ensure our performance of our
indemnification obligations under each indemnification agreement.
Delaware
Section 203
As a Delaware corporation, we are subject to Section 203 of
the General Corporation Law of the State of Delaware.
Section 203 imposes a three-year moratorium on the ability
of public Delaware corporations to engage in a wide range of
specified transactions with any interested
stockholder. An interested stockholder includes, among
other things, any person other than the corporation and its
majority-owned subsidiaries who owns 15% or more of the
outstanding voting stock of the corporation. However, the
moratorium will not apply if, among other things, the
transaction is approved by:
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the board of directors of the corporation prior to the time the
interested stockholder became an interested stockholder; or
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at or after the time the interested stockholder became an
interested stockholder, the board of directors of the
corporation and, at a meeting of stockholders, the holders of
two-thirds of the outstanding voting stock of the corporation,
not including those shares owned by the interested stockholder.
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We do not have a stockholder that owns 15% or more of our common
stock. If a stockholder acquired more than 15% of our common
stock, then such stockholder would be subject to the
restrictions under Section 203.
Anti-takeover
Effects
The Maritime Restrictions may have anti-takeover effects because
they will restrict the ability of
non-U.S. citizens
to own, in the aggregate, more than 22% of the outstanding
shares of our Class A common stock. Our Board of Directors
considers the Maritime Restrictions to be reasonable and in our
best interests and the best interests of our stockholders
because the Maritime Restrictions reduce the risk that the
Company will not be a U.S. citizen under the
U.S. maritime and vessel documentation laws applicable to
registering vessels in the United States and operating those
vessels in Coastwise Trade. In the opinion of our Board of
Directors, the fundamental importance to our stockholders of
maintaining eligibility under these laws is a more significant
consideration than the indirect anti-takeover effect
the Maritime Restrictions may have or the cost and expense of
preparing this proxy statement, soliciting proxies in favor of
the Reorganization and holding the special meeting.
The availability for issuance of additional shares of our common
stock could have the effect of rendering more difficult or
discouraging an attempt to obtain control of the Company. For
example, the issuance of
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shares of our common stock (within the limits imposed by
applicable law and the rules of any exchange upon which the
common stock may then be listed) in a public or private sale,
merger or similar transaction would increase the number of
outstanding shares, thereby possibly diluting the interest of a
party attempting to obtain control of the Company. The issuance
of additional shares of our common stock could also be used to
render more difficult a merger or similar transaction even if it
appears to be desirable to a majority of our stockholders.
Maritime
Restrictions
The following is a summary of the Maritime Restrictions in our
certificate of incorporation. This summary is qualified in its
entirety by reference to the full text of our certificate of
incorporation. We urge stockholders to and potential investors
to carefully read our certificate of incorporation in its
entirety.
General
In order to protect our ability to register vessels in the
U.S. under the applicable U.S. maritime and vessel
documentation laws and operate those vessels in Coastwise Trade,
our certificate of incorporation limits the aggregate ownership
(record or beneficial) or control of shares of our Class A
common stock by
non-U.S. citizens
(as such term is determined by the applicable U.S. maritime
and vessel documentation laws for purposes of Coastwise Trade)
to 22% of the total issued and outstanding shares of such class.
We refer to such percentage limitation on foreign ownership of
shares of our Class A common stock as the Maximum
Permitted Percentage and any such shares owned by
non-U.S. citizens
in excess of the Maximum Permitted Percentage as Excess
Shares. To the extent the applicable U.S. maritime
and vessel documentation laws are amended to change the legal
foreign ownership maximum percentage, our certificate of
incorporation provides that the Maximum Permitted Percentage
will automatically be changed to a percentage that is three
percentage points lower than the legal foreign ownership maximum
percentage, as amended. In the event we are subject to any other
U.S. Federal law that restricts the ownership of shares of
our capital stock by
non-U.S. citizens,
our Board of Directors will have discretion to impose ownership
restrictions and other provisions that are substantially
consistent with such applicable law on the shares of our capital
stock (so long as such restrictions and other provisions are no
more restrictive than the Maritime Restrictions). In addition,
our certificate of incorporation provides that a person will not
be deemed to be a record owner, beneficial
owner or controller of shares of our
Class A common stock, if our Board of Directors determines,
in good faith, that such person is not an owner of such shares
in accordance with and for the purposes of the applicable
U.S. maritime and vessel documentation laws.
Restriction
on Transfers of Excess Shares
Our certificate of incorporation provides that any purported
transfer of any shares of our Class A common stock that
would result in the aggregate ownership of shares of our
Class A common stock in excess of the Maximum Permitted
Percentage by one or more persons who is not a U.S. citizen
will be void and ineffective, and neither the Company nor our
transfer agent will register any such purported transfer on our
stock transfer records or recognize any such purported
transferee as a stockholder of the Company for any purpose
(including for purposes of voting, dividends and distributions),
except to the extent necessary to effect the remedies available
to us under our certificate of incorporation (as described under
Additional Remedies for Exceeding the Maximum
Permitted Percentage and Redemption of
Excess Shares below).
Additional
Remedies for Exceeding the Maximum Permitted
Percentage
In the event such restrictions voiding purported transfers would
be ineffective for any reason, our certificate of incorporation
provides that if any transfer (a Proposed Transfer)
to a proposed transferee (a Proposed Transferee)
would otherwise result in the ownership by
non-U.S. citizens
of an aggregate number of shares of our Class A common
stock in excess of the Maximum Permitted Percentage, such Excess
Shares will automatically be transferred to a trust for the
exclusive benefit of one or more charitable beneficiaries that
are U.S. citizens. The Proposed Transferee will not acquire
any rights in the Excess Shares transferred into the trust.
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Our certificate of incorporation also provides that the above
trust transfer provisions apply to (1) any change in the
status (a Status Change) of an owner of shares of
our Class A common stock from a U.S. citizen to a
non-U.S. citizen
(a Disqualified Recipient) that results in
non-U.S. citizens,
in the aggregate, owning shares of our Class A common stock
in excess of the Maximum Permitted Percentage and (2) any
issuance of shares of our Class A common stock (including
the shares of our Class A common stock that were issued in
the Reorganization) (a Deemed Original Issuance and,
together with a Proposed Transfer and a Status Change, each, a
Restricted Event) to a
non-U.S. citizen
(a Disqualified Recipient and, together with a
Proposed Transferee and Disqualified Person, a Restricted
Person) that would result in
non-U.S. citizens,
in the aggregate, owning shares of our Class A common stock
in excess of the Maximum Permitted Percentage.
The automatic transfer will be deemed to be effective as of
immediately before the consummation of the Restricted Event.
Shares of our Class A common stock held in the trust will
remain issued and outstanding shares. Any Restricted Person will
not profit from ownership of any shares of our Class A
common stock held in the trust, will have no rights to dividends
or distributions and will have no rights to vote or other rights
attributable to the shares of our Class A common stock held
in the trust. The trustee of the trust, who will be a
U.S. citizen chosen by us and unaffiliated with us or any
owner of such Excess Shares, will have all voting rights and
rights to dividends or other distributions with respect to
Excess Shares held in the trust. The trustee of the trust may
rescind as void any vote given by a holder with respect to
Excess Shares and revoke any proxy given by such holder with
respect to Excess Shares and recast such vote or resubmit such
proxy for the benefit of the charitable beneficiary of such
trust, unless prohibited from doing so by applicable law or we
have already taken corporate action in respect of which such
vote was cast or proxy was given. These rights will be exercised
by the trustee of the trust for the exclusive benefit of the
charitable beneficiary of such trust. In each case, any dividend
or distribution authorized and paid by us to a Restricted Person
with respect to such Restricted Persons Excess Shares
after the automatic transfer of such Excess Shares into a trust
must be paid by the Restricted Person to the trustee. Any
dividend or distribution authorized with respect to any Excess
Shares after the automatic transfer of such Excess Shares into
the trust but unpaid will be paid when due to the trustee. Any
dividend or distribution paid to the trustee will be held in
trust for distribution to the charitable beneficiary. The amount
of any such dividends or distribution received by a Restricted
Person with respect to Excess Shares and not paid to the trustee
may be withheld by the trustee from the proceeds of the sale of
such Excess Shares remitted to such Restricted Person (as
further described below).
Within 20 days of receiving notice from the Company that
shares of our Class A common stock have been transferred to
the trust, the trustee will sell the shares to a
U.S. citizen designated by the trustee (or to us in
accordance with the procedures described below). Upon the sale,
the interest of the charitable beneficiary in the shares sold
will terminate and the trustee will distribute the proceeds of
the sale (net of brokers commissions and other selling
expenses, applicable taxes and other costs and expenses of the
trust) to the Restricted Person and to the charitable
beneficiary as follows:
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In the case of Excess Shares transferred into the trust as a
result of a Proposed Transfer, the Proposed Transferee will
receive the lesser of (1) the price paid by the Proposed
Transferee for the shares or, if the Proposed Transferee did not
give value for the shares in connection with the event causing
the shares to be held in the trust (e.g., a gift, devise or
other similar transaction), the fair market value (determined in
accordance with the formula set forth in our certificate of
incorporation) of the shares on the date of the Proposed
Transfer (the Proposed Transfer Price) and
(2) the price received by the trustee from the sale of the
shares.
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In the case of Excess Shares transferred into the trust as a
result of a Status Change, the Disqualified Recipient will
receive the lesser of (1) the fair market value (determined
in accordance with the formula set forth in our certificate of
incorporation) of the shares on the date of the Status Change
(the Status Change Price) and (2) the price
received by the trustee from the sale of the shares.
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In the case of Excess Shares transferred into the trust as a
result of a Deemed Original Issuance (including any shares of
our Class A common stock which were issued in the
Reorganization), the Disqualified Recipient will receive the
lesser of (1) the price paid by the Disqualified Recipient
for the
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shares or, if the Disqualified Recipient did not give value for
the shares in connection with the Original Issuance, the fair
market value (determined in accordance with the formula set
forth in our certificate of incorporation) of the shares on the
date of the Deemed Original Issuance (the Deemed Original
Issuance Price) and (2) the price received by the
trustee from the sale of the shares.
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Any net sale proceeds in excess of the amount payable to the
Restricted Person will be promptly paid to the charitable
beneficiary. If such shares are sold by the Restricted Person
prior to our discovery that shares of our Class A common
stock should have been transferred to the trust, then
(1) the shares will be deemed to have been sold on behalf
of the trust and (2) to the extent that the Restricted
Person received an amount for the shares that exceeds the amount
such Restricted Person was entitled to receive, the excess will
be paid to the trustee upon demand. In addition, shares of our
Class A common stock held in the trust will be deemed to
have been offered for sale to the Company at a price per share
equal to the lesser of (1) the fair market value
(determined in accordance with the formula set forth in our
certificate of incorporation) on the date we accept the offer
and (2) the Proposed Transfer Price, the Status Change
Price or the Deemed Original Issuance Price, as the case may be,
of such Excess Shares. We will have the right to accept the
offer until the trustee has sold the shares. Upon a sale to the
Company, the interest of the charitable beneficiary in the
shares sold will terminate and the trustee will distribute to
the Restricted Person the portion of the net proceeds from the
sale due to the Restricted Person and pay the remainder, if any,
to the charitable beneficiary of the trust.
Redemption
of Excess Shares
To the extent that the above trust transfer provisions would be
ineffective for any reason, our certificate of incorporation
provides that, to prevent the percentage of aggregate shares of
our Class A common stock owned by
non-U.S. citizens
from exceeding the Maximum Permitted Percentage, we, by action
of our Board of Directors, in its sole discretion, will have the
power (but not the obligation) to redeem all or any portion of
such Excess Shares, unless such redemption is not permitted
under applicable law.
Until such Excess Shares are redeemed, the Restricted Persons
owning such shares will not be entitled to any voting rights
with respect to such shares and we will pay any dividends or
distributions with respect to such shares into an escrow
account. Full voting, distribution and dividend rights will be
restored to such Excess Shares (and any dividends or
distributions paid into an escrow account will be paid to
holders of record of such shares), promptly after the time and
to the extent the Board of Directors determines that such shares
no long constitute Excess Shares, unless such shares have
already been redeemed by the Company.
If our Board of Directors determines to redeem Excess Shares,
the redemption price of such Excess Shares will be an amount
equal to (1) the lesser of (x) the fair market value
(determined in accordance with the formula set forth in our
certificate of incorporation) on the redemption date and
(y) in the case of a Proposed Transfer, the Proposed
Transfer Price of such Excess Shares, in the case of a Status
Change, the Status Change Price of such Excess Shares or, in the
case of a Deemed Original Issuance, the Deemed Original Issuance
Price of such Excess Shares, minus (2) any dividends or
distributions received by such Restricted Person with respect to
such Excess Shares prior to and including the redemption date
instead of being paid into the escrow account. Our Board of
Directors may, in its discretion, pay the redemption price in
cash or by the issuance of interest-bearing promissory notes
with a maturity of up to 10 years and bearing a fixed rate
equal to the yield on the U.S. Treasury Note of comparable
maturity. Upon redemption, any dividends or distributions that
have been paid into an escrow account with respect to such
redeemed shares will be paid by the escrow agent for such
account to a charitable organization that is a U.S. citizen
designated by the Company, net of any taxes and other costs and
expenses of the escrow agent.
Permitted
Actions by the Board of Directors Relating to the Maritime
Restrictions
In addition to the foregoing restrictions, so that we may assure
compliance with the applicable U.S. maritime and vessel
documentation laws, our certificate of incorporation authorizes
our Board of
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Directors to effect any and all measures necessary or desirable
(consistent with the provisions of our certificate of
incorporation) to fulfill the purpose of and to implement the
Maritime Restrictions, including:
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obtaining, as a condition precedent to the transfer of shares of
our Class A common stock, a citizenship certification and
any other documentation we or our transfer agent deems advisable
from the transferee of such shares (and persons on whose behalf
shares of our Class A common stock are to be held);
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determining the citizenship of any owner of shares of our
Class A common stock and, in making such determination,
relying upon the stock transfer records of the Company, the
citizenship certificates and other documentation given by owners
or their transferees and such other written statements and
affidavits and such other proof as we may deem reasonable;
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developing issuance, transfer, redemption, escrow and legend
notice provisions and procedures regarding certificated and
uncertificated shares of our Class A common stock;
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establishing and maintaining a dual stock certificate system
under which different forms of certificates are issued to
U.S. citizens and
non-U.S. citizens; and
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mandating that all shares of Class A common stock issued by
the Company include the legend specified in our certificate of
incorporation (or other appropriate legend reflecting the
Maritime Restrictions) or, in the case of uncertificated shares,
mandating that the record holder thereof be sent a written
notice containing the information in the applicable legend
within a reasonable time after the issuance or transfer thereof
in accordance with Delaware law.
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Maritime
Restrictions Severable
The Maritime Restrictions are intended to be severable. If any
one or more of the Maritime Restrictions is held to be invalid,
illegal or unenforceable, our certificate of incorporation
provides that the validity, legality or enforceability of any
other provision will not be affected.
National
Securities Exchange
In order for us to comply with any conditions to listing the
shares of our Class A common stock that may be specified by
any applicable national securities exchange or automated
inter-dealer quotation service, our certificate of incorporation
also provides that nothing therein, such as the provisions
voiding transfers to
non-U.S. citizens,
will preclude the settlement of any transaction entered into
through any such applicable national securities exchange or
automated inter-dealer quotation service if such preclusion is
prohibited by such exchange or quotation service.
Our
Class B Common Stock, Termination of Maritime
Restrictions
Shares of our Class B common stock were not issued in the
Reorganization and will not be subject to the Maritime
Restrictions. Initially, shares of our Class B common stock
will only be issued upon the conversion of all of the
outstanding and treasury shares of our Class A common stock
into outstanding or treasury shares of our Class B common
stock, as the case may be. Each outstanding and treasury share
of our Class A common stock will be automatically converted
into one share of our Class B common stock in the event our
Board determines that either:
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the U.S. ownership requirements of the applicable
U.S. maritime and vessel documentation laws are no longer
applicable to the Company (or have been amended so that the
Maritime Restrictions are no longer necessary); or
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the elimination of such restrictions is in the best interest of
the Company and our stockholders. Thereafter, the converted
shares of our Class A common stock will be canceled, will
no longer be outstanding and cannot be reissued.
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Description
of Preferred Stock
General
Our certificate of incorporation authorizes us to issue up to
2 million shares of preferred stock, par value $0.01 per
share. As of March 1, 2010, no shares of preferred stock
were outstanding. Our board of directors may from time to time
authorize us to issue one or more series of preferred stock and
may fix the designation, terms, and relative rights and
preferences, including the dividend rate, voting rights,
conversion rights, redemption and sinking fund provisions and
liquidation values of each of these series.
As a result, our board of directors could authorize us to issue
preferred stock with voting, conversion and other rights that
could adversely affect the voting power and other rights of
holders of our common stock or other series of preferred stock.
Also, the issuance of preferred stock could have the effect of
delaying, deferring or preventing a change in control of our
company.
The particular terms of any series of preferred stock that we
offer with this prospectus will be described in the prospectus
supplement relating to that series of preferred stock. Those
terms must include:
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the designation of the series, which may be by distinguishing
number, letter and title;
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the number of shares of the series;
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the price at which the preferred stock will be issued;
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the dividend rate, if any, or the method of calculation,
including whether dividends shall be cumulative or
non-cumulative;
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the dates at which dividends, if any, shall be payable;
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the redemption rights and price or prices, if any;
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the terms and amount of any sinking fund;
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the liquidation preference per share;
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whether the shares of the series shall be convertible, and if
so, the specification of the securities into which such
preferred stock is convertible;
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the conversion price or prices or rates, and any adjustments
thereof, the dates as of which such shares shall be convertible,
and all other terms and conditions upon which such conversion
may be made;
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restrictions on the issuance of shares of the same series or of
any other class or series; and
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the voting rights, if any.
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Description
of Debt Securities
General
We may issue debt securities from time to time in one or more
series. The following description, together with any applicable
prospectus supplement, summarizes the material terms and
provisions of the debt securities that we may offer under this
prospectus and any related indenture or supplemental indenture.
We currently have an indenture, dated July 21, 2004, the
Indenture, between us and U.S. Bank National
Association, as trustee. We could issue debt securities under
the Indenture, a supplemental indenture, or a new indenture. We
will set forth the terms of such debt securities in the
applicable prospectus supplement. We will file with the SEC the
indenture governing any such debt securities, if not the
existing Indenture, and the applicable prospectus supplement
will provide more information on its terms.
We have summarized below some of the provisions that will apply
to the debt securities unless the applicable prospectus
supplement provides otherwise. The summary may not contain all
information that is important to you. The Indenture, a new
indenture and any supplemental indenture will be included or
incorporated by reference as exhibits to the registration
statement of which this prospectus is a part. You
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should read the Indenture, a new indenture and any supplemental
indenture. You should also read the prospectus supplement, which
will contain additional information and which may update or
change some of the information below.
We will describe the specific terms of the series of debt
securities being offered in the related prospectus supplement.
These terms will include some or all of the following:
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the designation or title of the debt securities;
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any limit on the aggregate principal amount of the debt
securities;
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the percentage of the principal amount at which debt securities
will be issued;
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any terms relating to the subordination of the debt securities;
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whether any of the debt securities are to be issuable as a
global security and whether global securities are to be issued
in temporary global form or permanent global form;
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the person to whom any interest on the debt security will be
payable if other than the person in whose name the debt security
is registered on the record date;
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the date or dates on which the debt securities will mature;
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the rate or rates of interest, if any, that the debt securities
will bear, or the method of calculation of the interest rate or
rates;
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the date or dates from which any interest on the debt securities
will accrue, the dates on which any interest will be payable and
the record date for any interest payable on any interest payment
date;
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the place or places where payments on the debt securities will
be payable;
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whether we will have the right or obligation to redeem or
repurchase any of the debt securities, and the terms applicable
to any optional or mandatory redemption or repurchase;
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the denominations in which the debt securities will be issuable;
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any index or formula used to determine the amount of payments on
the debt securities;
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the portion of the principal amount of the debt securities that
will be payable if there is an acceleration of the maturity of
the debt securities, if that amount is other than the principal
amount;
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the terms of any guarantee of the payment of amounts due on the
debt securities;
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any restrictive covenants for the benefit of the holders of the
debt securities;
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the events of default with respect to the debt
securities; and
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any other terms of the debt securities.
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Priority
of the Debt Securities
Unless otherwise described in a supplemental prospectus, the
debt securities will be our general unsecured obligations and
will rank pari passu (i.e., equally and ratably) with all of our
other senior unsecured and unsubordinated indebtedness. The debt
securities will be effectively subordinated to all of our
secured indebtedness to the extent of the value of the assets
securing that indebtedness. In the event of insolvency, our
creditors who are holders of secured indebtedness, as well as
some of our general creditors, may recover more, ratably, than
the holders of the debt securities.
With respect to any offering of debt securities, we will
describe in the accompanying prospectus supplement or the
information incorporated by reference the approximate amount of
our outstanding indebtedness as of the end of our most recent
fiscal quarter.
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Guarantees
We do not anticipate that our subsidiaries would initially
guarantee our obligations under the debt securities, but under
certain circumstances, they could be required to become
guarantors. If a guarantee is required, it would likely require
a full and unconditional guarantee of our obligations under the
debt securities on a joint and several basis subject to the
limitation described in the next paragraph. If we defaulted in
payment of the principal of, or premium, if any, or interest on,
the debt securities, the guarantors, jointly and severally,
would likely be unconditionally obligated to duly and punctually
make such payments. The prospectus supplement for a particular
issue of debt securities will describe any subsidiary guarantors
and any material terms of the guarantees for such securities.
Each guarantors obligations will be limited to the lesser
of the following amounts:
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the aggregate amount of our obligations under the debt
securities and the indenture; and
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the amount, if any, which would not have rendered such guarantor
insolvent under Federal or appropriate state law as
will be designated in the indenture, or have left it with
unreasonably small capital, at the time it entered into the
guarantee.
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Each guarantor that makes a payment or distribution under its
guarantee shall be entitled to contribution from each other
guarantor in a pro rata amount based on the net assets of each
guarantor.
Form
and Denominations
The debt securities will be issued in fully registered form and
in denominations of $1,000 and integral multiples thereof,
unless otherwise specified in a prospectus supplement.
Transfer
and Exchange
You may transfer or exchange notes in accordance with the
indenture. The registrar and trustee may require you, among
other things, to furnish appropriate endorsements and transfer
documents and we may require you to pay any taxes and fees
required by law or permitted by the indenture. We may not be
required to transfer or exchange any note selected for
redemption. Also, we may not be required to transfer or exchange
any note for a period of 15 days before a selection of
notes is to be redeemed.
As a registered holder of the note, you will be treated as the
owner of it for all purposes.
Redemption
Unless otherwise provided in the applicable prospectus
supplement, we may redeem the debt securities at our option on
the terms set forth in the indenture. Upon the occurrence of
either a change of control (as defined in the indenture) or
certain asset sales, we may be required to offer to purchase
outstanding debt securities, in whole or in part, if we have
sale proceeds exceeding some reasonable amount which will be
provided for in the indenture and consistent with the industry
and the sale proceeds are not timely applied toward repayment of
debt or investment in other assets useful to our business.
Payment
and Paying Agents
Unless otherwise provided in a prospectus supplement, we will
pay interest to you semi-annually in arrears on each January 15
and July 15 if you are a direct holder listed in the
trustees records at the close of business on the
immediately preceding January 1 and July 1. Holders buying
and selling debt securities must work out between them how to
compensate for the fact that we will pay all the interest for an
interest period to the one who is the registered holder on the
record date. The most common manner is to adjust the sale price
of the debt securities to allocate interest fairly between buyer
and seller. This allocated interest amount is called
accrued interest.
We will pay interest, principal and any other money due on the
debt securities at the corporate trust office of the trustee. We
may also choose to pay interest by mailing checks to the holders
of the debt securities.
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Interest
Rates and Discounts
The debt securities will earn interest at a fixed or floating
rate or rates for the period or periods of time specified in the
applicable prospectus supplement. Unless otherwise specified in
the applicable prospectus supplement, the debt securities will
bear interest on the basis of a
360-day year
consisting of twelve
30-day
months.
We may sell debt securities at a substantial discount below
their stated principal amount, bearing no interest or interest
at a rate that at the time of issuance is below market rates.
Federal income tax consequences and special considerations that
apply to any series will be described in the applicable
prospectus supplement.
Global
Securities
We may issue the debt securities in whole or in part in the form
of one or more global securities. A global security is a
security, typically held by a depositary such as The Depository
Trust Company, which represents the beneficial interests of
a number of purchasers of such security. We may issue the global
securities in either temporary or permanent form. We will
deposit global securities with the depositary identified in the
prospectus supplement. A global security may be transferred as a
whole only as follows:
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by the depositary to a nominee of the depositary;
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by a nominee of the depositary to the depositary or another
nominee of the depositary; or
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by the depositary or any nominee to a successor depositary or
any nominee of the successor.
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We will describe the specific terms of the depositary
arrangement with respect to a series of debt securities in a
prospectus supplement. We expect that the following provisions
will generally apply to depositary arrangements.
After we issue a global security, the depositary will credit on
its book-entry registration and transfer system the respective
principal amounts of the debt securities represented by such
global security to the accounts of persons that have accounts
with such depositary or participants. The underwriters or agents
participating in the distribution of the debt securities will
designate the accounts to be credited. If we offer and sell the
debt securities directly or through agents, either we or our
agents will designate the accounts. Ownership of beneficial
interests in a global security will be limited to participants
or persons that hold interests through participants. Ownership
of beneficial interests in the global security will be shown on,
and the transfer of that ownership will be effected only
through, records maintained by, the depositary and its
participants.
We and the trustee will treat the depositary or its nominee as
the sole owner or holder of the debt securities represented by a
global security. Principal, any premium and any interest
payments on debt securities represented by a global security
registered in the name of a depositary or its nominee will be
made to such depositary or its nominee as the registered owner
of such global security.
Unless otherwise indicated in the applicable prospectus
supplement, owners of beneficial interests in a global security
will be entitled to have the debt securities represented by such
global security registered in their names and will be entitled
to receive physical delivery of such debt securities in
definitive form upon the terms set forth in the indenture. The
laws of some states require that certain purchasers of
securities take physical delivery of the securities. Such laws
may impair the ability to transfer beneficial interests in a
global security.
We expect that the depositary or its nominee, upon receipt of
any payments, will immediately credit participants
accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of the
global security as shown on the depositarys or its
nominees records. We also expect that payments by
participants to owners of beneficial interests in the global
security will be governed by standing instructions and customary
practices, as is the case with the securities held for the
accounts of customers registered in street names and
will be the responsibility of such participants.
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If the depositary is at any time unwilling or unable to continue
as depositary and we do not appoint a successor depositary
within ninety days, we will issue individual debt securities in
exchange for such global security. In addition, we may at any
time in our sole discretion determine not to have any of the
debt securities of a series represented by global securities
and, in such event, will issue debt securities of such series in
exchange for such global security.
Neither we, the trustee nor any paying agent will have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests in such global security or for maintaining,
supervising or reviewing any records relating to such beneficial
ownership interests. No such person will be liable for any delay
by the depositary or any of its participants in identifying the
owners of beneficial interests in a global security, and we, the
trustee and any paying agent may conclusively rely on
instructions from the depositary or its nominee for all purposes.
Covenants
With respect to each series of debt securities, we will be
required to:
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pay the principal of, and interest and any premium on, the debt
securities when due;
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maintain a place of payment;
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deliver certain periodic reports to the holders of the debt
securities at the times set forth in the indenture;
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provide to the trustee within 90 days after the end of each
fiscal year a certificate regarding our compliance with the
obligations and covenants in the indenture; and
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pay any material taxes.
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The indenture for the debt securities may contain covenants
limiting our ability, or the ability of our subsidiaries, to:
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incur additional debt (including guarantees);
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make certain payments;
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engage in other business activities;
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issue other securities;
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dispose of assets;
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enter into certain transactions with our subsidiaries and other
affiliates;
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incur liens; and
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enter into certain mergers and consolidations involving us and
our subsidiaries.
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Any additional covenants will be described in the applicable
prospectus supplement.
Unless we state otherwise in the applicable prospectus
supplement, we will agree not to consolidate with or merge into
any individual, corporation, partnership or other entity (each,
a person) or sell, lease, convey, transfer or otherwise dispose
of all or substantially all of our assets to any person, or
permit any person to consolidate or merge into us or sell,
lease, convey, transfer or otherwise dispose of all or
substantially all of its assets to us unless:
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we are the surviving corporation or the entity or person formed
by or surviving the consolidation or merger (if not us), or to
which the sale, lease, conveyance, transfer or other disposition
shall have been made is a corporation organized or existing
under the laws of the U.S., any state thereof or the District of
Columbia,
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the entity or person formed by or surviving any such
consolidation or merger (if not us) or the entity or person to
which such sale, lease conveyance, transfer or other disposition
shall have been made,
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assumes all of our obligations under the debt securities and any
indenture pursuant to a supplemental indenture in a form
reasonably satisfactory to the trustee;
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immediately before and after such transaction, no default or
event of default shall have occurred; and
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except in the case of a merger of us with or into certain of our
subsidiaries, we or the entity or the person formed by or
surviving such transaction (if not us) will be able to incur
additional indebtedness under the indenture after giving effect
to the transaction.
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Events
of Default
Unless we state otherwise in the applicable prospectus
supplement, an event of default with respect to the
debt securities under the indenture means:
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our default for 30 days in payment of any interest on the
debt securities;
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our default in payment of any principal or premium on the debt
securities of the series upon maturity or otherwise;
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our default in the observance of certain covenants as set forth
in the indenture;
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our default, for 60 days after delivery of written notice,
in the observance or performance of other covenants;
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our default in the payment of our other indebtedness;
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bankruptcy, insolvency or reorganization events relating to us
or our subsidiaries;
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the entry of a judgment in excess of the amount specified in the
indenture or any supplemental indenture against us or such
significant subsidiary which is not covered by insurance and not
discharged, waived or stayed; or
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any other event of default included in the indenture or any
supplemental indenture and described in the prospectus
supplement.
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The consequences of an event of default, and the remedies
available under the indenture or any supplemental indenture,
will vary depending upon the type of event of default that has
occurred.
Unless we state otherwise in the applicable prospectus
supplement, if an event of default with respect to any debt
securities has occurred and is continuing, then either the
trustee or the holders of at least 25% of the principal amount
specified in the indenture or any supplemental indenture of the
outstanding debt securities may declare the principal of all the
affected debt securities and interest accrued to be due and
payable immediately.
Unless we state otherwise in the applicable prospectus
supplement, if an event of default with respect to any debt
securities has occurred and is continuing and is due to a
bankruptcy, insolvency or reorganization event relating to us,
then the principal (or such portion of the principal as is
specified in the terms of the debt securities) of and interest
accrued on all debt securities then outstanding will become due
and payable automatically, without further action by the trustee
or the holders.
Under conditions specified in the indenture and any supplemental
indenture, the holders of a majority of the principal amount of
the debt securities may annul or waive certain declarations and
defaults described above. These holders may not, however, waive
a continuing default in payment of principal of (or premium, if
any) or interest on the debt securities.
The indenture may provide that, subject to the duty of the
trustee during a default to act with the required standard of
care, the trustee will have no obligation to exercise any right
or power granted to it under the indenture at the request of
holders of debt securities unless the holders have indemnified
the trustee. Subject to the provisions in the indenture and any
supplemental indenture for the indemnification of the trustee
and other limitations specified in those documents, the holders
of a majority in principal amount of the outstanding debt
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securities may direct the time, method and place of conducting
any proceeding for any remedy available to the trustee, or
exercising any trust or power conferred on the trustee relating
to the debt securities.
If you hold debt securities, you will not be permitted under the
terms of the indenture or any supplemental indenture to
institute any action against us in connection with any default
(except actions for payment of overdue principal, premium, or
interest or other amounts) unless:
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you have given the trustee written notice of the default and its
continuance;
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holders of not less than 25% in principal amount of the debt
securities issued under the indenture have made a written
request upon the trustee to institute the action and have
offered the trustee reasonable indemnity;
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the trustee has not instituted the action within 60 days of
the request; and
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during such
60-day
period, the trustee has not received directions inconsistent
with the written request by the holders of a majority in
principal amount of the outstanding debt securities issued under
the indenture.
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Defeasance
Provisions Applicable to the Debt Securities
Unless otherwise specified in a prospectus supplement, under the
indenture or any supplemental indenture, we, at our option,
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will be discharged from our obligations in respect of the debt
securities under the indenture (except for certain obligations
relating to the trustee and obligations to register the transfer
or exchange of debt securities, replace stolen, lost or
mutilated debt securities, maintain paying agencies and hold
moneys for payment in trust) or
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need not comply with certain restrictive covenants of the
indenture or supplemental indenture,
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in each case, if we irrevocably deposit, in trust with the
trustee, money or U.S. government obligations which through
the payment of interest and principal will provide money
sufficient to pay all the principal of, and interest and
premium, if any, on, the debt securities on the dates on which
such payments are due. We must also specify whether the debt
securities are being defeased to maturity or to a particular
redemption date.
To exercise either of the above options, no default or event of
default shall have occurred or be continuing on the date of such
deposit, and such defeasance must not result in a breach of or
constitute a default under any material agreement to which we
are bound. Unless otherwise specified in a prospectus
supplement, we also must deliver a certificate stating that the
deposit was not made with the intent of preferring holders of
the debt securities over our other creditors. In addition, we
must deliver to the trustee an opinion of counsel that:
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the deposit and related defeasance would not cause the holders
of the debt securities to recognize income, gain or loss for
federal income tax purposes and, in the case of a discharge
pursuant to the first bullet point above, the opinion will be
accompanied by a private letter ruling to that effect from the
IRS or a revenue ruling concerning a comparable form of
transaction to that effect published by the IRS,
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after the 91st day following the deposit, the funds will
not be subject to the effect of any applicable bankruptcy,
insolvency or similar laws, and
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all conditions precedent relating to the defeasance have been
complied with.
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Modification
and Waiver
We and the trustee may, without the consent of holders, modify
provisions of the indenture for certain purposes, including,
among other things, curing ambiguities and maintaining the
qualification of the indenture under the Trust Indenture
Act. Under the indenture, our rights and obligations and the
rights of holders may be modified with the consent of the
holders of a majority in aggregate principal amount of the
outstanding
18
debt securities affected by the modification. However, unless
indicated otherwise in the applicable prospectus supplement, the
provisions of the indenture may not be modified without the
consent of each holder of debt securities affected thereby if
the modification would:
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reduce the principal of or change the stated maturity of any
such debt securities;
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waive certain provisions regarding redemption in a manner
adverse to the rights of any holder of such debt securities;
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reduce the rate of or change the time for payment of interest on
such debt securities;
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waive a default in the payment of principal or interest on such
debt securities;
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change the currency in which any of such debt securities are
payable;
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waive a redemption payment with respect to such debt securities
(other than as specified in the indenture); or
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change the provisions of the indenture regarding waiver and
amendment.
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The
Trustee
We will include information regarding the trustee in the
prospectus supplement relating to any series of debt securities.
If any event of default shall occur (and be continuing) under
the indenture or any supplemental indenture, the trustee will be
required to use the degree of care and skill of a prudent man in
the conduct of his own affairs. The trustee will be under no
obligation to exercise any of its powers at the request of any
of the holders of the debt securities, unless the holders shall
have offered the trustee reasonable indemnity against the costs,
expenses and liabilities it might incur. The indenture, any
supplemental indenture, and the provisions of the
Trust Indenture Act incorporated by reference thereby, will
contain limitations on the rights of the trustee, should it
become a creditor of ours, to obtain payment of claims or to
realize on property received by it for claims as security or
otherwise.
Description
of Warrants
We summarize below some of the provisions that will apply to the
warrants unless the applicable prospectus supplement provides
otherwise. The summary may not contain all information that is
important to you. The complete terms of the warrants will be
contained in the applicable warrant certificate and warrant
agreement. These documents have been or will be included or
incorporated by reference as exhibits to the registration
statement of which this prospectus is a part. You should read
the warrant certificate and the warrant agreement. You should
also read the prospectus supplement, which will contain
additional information and which may update or change some of
the information below.
General
We may issue warrants to purchase common stock independently or
together with other securities. The warrants may be attached to
or separate from the other securities. We may issue warrants in
one or more series. Each series of warrants will be issued under
a separate warrant agreement to be entered into between us and a
warrant agent. The warrant agent will be our agent and will not
assume any obligations to any holder or beneficial owner of the
warrants.
The prospectus supplement and the warrant agreement relating to
any series of warrants will include specific terms of the
warrants. These terms include the following:
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the title and aggregate number of warrants;
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the price or prices at which the warrants will be issued;
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the amount of common stock for which the warrant can be
exercised and the price or the manner of determining the price
or other consideration to purchase the common stock;
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19
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the date on which the right to exercise the warrant begins and
the date on which the right expires;
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if applicable, the minimum or maximum amount of warrants that
may be exercised at any one time;
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if applicable, the designation and terms of the securities with
which the warrants are issued and the number of warrants issued
with each other security;
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any provision dealing with the date on which the warrants and
related securities will be separately transferable;
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any mandatory or optional redemption provisions;
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the identity of the warrant agent; and
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any other terms of the warrants.
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Unless otherwise specified in a prospectus supplement, the
warrants will be represented by certificates. The warrants may
be exchanged under the terms outlined in the warrant agreement.
We will not charge any service charges for any transfer or
exchange of warrant certificates, but we may require payment for
tax or other governmental charges in connection with the
exchange or transfer. Unless the prospectus supplement states
otherwise, until a warrant is exercised, a holder will not be
entitled to any payments on or have any rights with respect to
the common stock issuable upon exercise of the warrant.
Exercise
of Warrants
To exercise the warrants, the holder must provide the warrant
agent with the following:
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payment of the exercise price;
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any required information described on the warrant certificates;
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the number of warrants to be exercised;
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an executed and completed warrant certificate; and
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any other items required by the warrant agreement.
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If a warrant holder exercises only part of the warrants
represented by a single certificate, the warrant agent will
issue a new warrant certificate for any warrants not exercised.
Unless the prospectus supplement states otherwise, no fractional
shares will be issued upon exercise of warrants, but we will pay
the cash value of any fractional shares otherwise issuable.
The exercise price and the number of shares of common stock for
which each warrant can be exercised will be adjusted upon the
occurrence of events described in the warrant agreement,
including the issuance of a common stock dividend or a
combination, subdivision or reclassification of common stock.
Unless the prospectus supplement states otherwise, no adjustment
will be required until cumulative adjustments require an
adjustment of at least 1%. From time to time, we may reduce the
exercise price as may be provided in the warrant agreement.
Unless the prospectus supplement states otherwise, if we enter
into any consolidation, merger, or sale or conveyance of our
property as an entirety, the holder of each outstanding warrant
will have the right to acquire the kind and amount of shares of
stock, other securities, property or cash receivable by a holder
of the number of shares of common stock into which the warrants
were exercisable immediately prior to the occurrence of the
event.
20
Modification
of the Warrant Agreement
The common stock warrant agreement will permit us and the
warrant agent, without the consent of the warrant holders, to
supplement or amend the agreement in the following circumstances:
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to cure any ambiguity;
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to correct or supplement any provision which may be defective or
inconsistent with any other provisions; or
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to add new provisions regarding matters or questions that we and
the warrant agent may deem necessary or desirable and which do
not adversely affect the interests of the warrant holders.
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USE OF
PROCEEDS
Unless we state otherwise in a prospectus supplement, we will
use the net proceeds from the sale of securities sold by us for
general corporate purposes, which may include the repayment of
debt, acquisitions, capital expenditures and working capital. We
may temporarily invest funds we receive from the sale of
securities by us that we do not immediately need for these
purposes.
PLAN OF
DISTRIBUTION
Offering
and Sale of Securities
We may sell the securities from time to time as follows:
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through brokers or agents;
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to dealers or underwriters for resale;
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directly to purchasers; or
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through a combination of any of these methods of sale.
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In some cases, we, or dealers acting with or on our behalf may
also purchase securities and reoffer them to the public by one
or more of the methods described above. This prospectus may be
used in connection with any offering of our securities through
any of these methods or other methods described in the
applicable prospectus supplement.
The securities we distribute may be sold in one or more
transactions:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to prevailing market prices; or
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at negotiated prices.
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These sales may be effected in transactions:
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on the New York Stock Exchange or any other national securities
exchange or quotation service on which our common stock may be
listed or quoted at the time of sale;
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in the
over-the-counter
market;
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in transactions otherwise than on such exchanges or services or
in the
over-the-counter
market; or
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through the writing of options.
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21
These transactions may include block transactions or crosses,
which are transactions in which the same broker acts as an agent
on both sides of the trade.
We may solicit offers to purchase securities directly from the
public from time to time. We may also designate agents from time
to time to solicit offers to purchase securities from the public
on our behalf. The prospectus supplement relating to any
particular offering of securities will set forth, as applicable,
the number of shares being offered and the terms of the
offering, including the name of any underwriter, broker, dealer
or agent, the purchase price paid by any underwriter, any
discounts, commissions, concessions and other items constituting
compensation, the proposed price, to the public and any other
required disclosure. Any agents acting on our or behalf will be
acting on a best efforts basis to solicit purchases for the
period of their appointment, unless we state otherwise in any
required prospectus supplement. Agents who participate in the
distribution of securities pursuant to this prospectus may be
deemed to be underwriters as that term is defined
under Section 2(11) of the Securities Act. As a result, any
profits of the sale of shares, of our securities and any
discounts, commissions or concessions received by any such
agents might be deemed to be underwriting discounts and
commissions under the Securities Act.
From time to time, we may sell securities to one or more dealers
acting as principals. The dealers, who may be deemed to be
underwriters as that term is defined in the
Securities Act, may then resell those securities to the public.
We may sell securities from time to time to one or more
underwriters, who would purchase the securities as principal for
resale to the public, either on a firm-commitment or
best-efforts basis. If we sell securities to underwriters, we
may execute an underwriting agreement with them at the time of
sale and will name them in the applicable prospectus supplement.
In connection with those sales, underwriters may be deemed to
have received compensation from us in the form of underwriting
discounts or commissions and may also receive commissions from
purchasers of the securities for whom they may act as agents.
Underwriters may resell the securities to or through dealers,
and those dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters
and/or
commissions from purchasers for whom they may act as agents. The
applicable prospectus supplement will include any required
information about underwriting compensation we may pay to
underwriters, and any discounts, concessions or commissions
underwriters allow to participating dealers, in connection with
an offering of securities.
We may enter into derivative transactions with third parties, or
sell securities not covered by this prospectus or covered by
this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement indicates,
in connection with those derivatives, the third parties may sell
securities covered by this prospectus and the applicable
prospectus supplement, including in short sale transactions. If
so, the third party may use securities pledged by us or borrowed
from us or others to settle those sales or to close out any
related open borrowings of stock, and may use securities
received from us in settlement of those derivatives to close out
any related open borrowings of stock. The third party in such
sale transactions will be an underwriter and, if not identified
in this prospectus, will be identified in the applicable
prospectus supplement (or a post-effective amendment).
If we offer securities in a subscription rights offering to our
existing security holders, we may enter into a standby
underwriting agreement with dealers, acting as standby
underwriters. We may pay the standby underwriters a commitment
fee for the securities they commit to purchase on a standby
basis. If we do not enter into a standby underwriting
arrangement, we may retain a dealer-manager to manage a
subscription rights offering for us.
We may authorize underwriters, dealers and agents to solicit
from third parties offers to purchase securities under contracts
providing for payment and delivery on future dates. The
applicable prospectus supplement will describe the material
terms of these contracts, including any conditions to the
purchasers obligations, and will include any required
information about commissions we may pay for soliciting these
contracts.
22
Underwriters, brokers, dealers, agents and other persons may be
entitled, under agreements that they may enter into with us, to
indemnification by us against certain liabilities, including
liabilities under the Securities Act.
In connection with any underwritten offering, the underwriters
may purchase and sell shares of common stock in the open market.
These transactions may include short sales, stabilizing
transactions and purchases to cover positions created by short
sales. Shorts sales involve the sale by the underwriters of a
greater number of shares than they are required to purchase in
the offering. Covered short sales are sales made in
an amount not greater than the underwriters option to
purchase additional shares from us in the offering. The
underwriters may close out any covered short position by either
exercising their option to purchase additional shares or
purchasing shares in the open market. In determining the source
of shares to close out the covered short position, the
underwriters will consider, among other things, the price of
shares available for purchase in the open market as compared to
the price at which they may purchase shares through the
overallotment option. Naked short sales are any
sales in excess of such option. The underwriters must close out
any naked short position by purchasing shares in the open
market. A naked short position is more likely to be created if
the underwriters are concerned that there may be downward
pressure on the price of the common stock in the open market
after pricing that could adversely affect investors who purchase
in the offering. Stabilizing transactions consist of various
bids for or purchases of common stock made by the underwriters
in the open market prior to the completion of the offering.
The underwriters may also impose a penalty bid. This occurs when
a particular underwriter repays to the underwriters a portion of
the underwriting discount received by it because the
representatives have repurchased shares sold by or for the
account of such underwriter in stabilizing or short covering
transactions.
Purchases to cover a short position and stabilizing transactions
may have the effect of preventing or retarding a decline in the
market price of our common stock, and together with the
imposition of the penalty bid, may stabilize, maintain or
otherwise affect the market price of the common stock. As a
result, the price of the common stock may be higher than the
price that otherwise might exist in the open market. If these
activities are commenced, they may be discontinued at any time.
These transactions may be effected on the New York Stock
Exchange, in the
over-the-counter
market or otherwise.
In order to comply with the securities laws of some states, if
applicable, the shares of our common stock may be sold in these
jurisdictions only through registered or licensed brokers or
dealers. In addition, in some states such shares may not be sold
unless they have been registered or qualified for sale or an
exemption from registration or qualification requirements is
available and is complied with.
Matters
Relating to the Offering and Market-Making Resales
Except for our common stock, each series of securities will be a
new issue, and there will be no established trading market for
any security prior to its original issue date. Other than our
common stock, we may not list any particular series of
securities on a securities exchange or quotation system. Any
underwriters to whom we sell securities for public offering may
also make a market in those securities. However, no underwriter
that makes a market is obligated to do so, and any of them may
stop doing so at any time without notice. No assurance can be
given as to the liquidity or trading market for any of the
securities.
Unless otherwise indicated in the applicable prospectus
supplement or confirmation of sale, the purchase price of any
securities offered by us will be required to be paid in
immediately available funds in New York City.
In this prospectus, the terms this offering means
the initial offering of the securities made in connection with
their original issuance by us. This term does not refer to any
subsequent resales of securities in market-making transactions.
23
RATIO OF
EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for the periods indicated
below was as follows:
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Years Ended December 31,
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2005
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2006
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2007
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2008
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2009
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3.04
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5.95
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9.53
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8.99
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2.83
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Our ratios of earnings to fixed charges are calculated by
dividing earnings by fixed charges for the period indicated,
where:
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earnings is defined as consolidated income or
loss from continuing operations plus income taxes, minority
interest and fixed charges, except capitalized interest; and
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fixed charges is defined as consolidated
interest on indebtedness, including capitalized interest,
amortization of debt discount and issuance cost, and the
estimated portion of rental expense deemed to be equivalent to
interest.
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Because we have no preferred stock issued and outstanding,
dividends relating to preferred stock are not included in the
calculation of fixed charges.
DIVIDEND
POLICY
We have not declared or paid cash dividends during the past five
years. Pursuant to the terms of the indenture under which our
senior notes are issued, we may be restricted from declaring or
paying dividends; however, we currently anticipate that, for the
foreseeable future, any earnings will be retained for the growth
and development of our business. The declaration of dividends is
at the discretion of our Board of Directors. Our dividend policy
will be reviewed by the Board of Directors at such time as may
be appropriate in light of future operating conditions, dividend
restrictions of subsidiaries and investors, financial
requirements, general business conditions and other factors.
LEGAL
MATTERS
The validity of the securities offered by this prospectus will
be passed upon for us by Strasburger & Price, L.L.P.,
Houston, Texas.
EXPERTS
The consolidated financial statements of GulfMark Offshore, Inc.
and subsidiaries as of December 31, 2009 and for each of
the two years in the period ended December 31, 2009
appearing in GulfMark Offshore, Inc.s Annual Report
(Form 10-K)
for the year ended December 31, 2009, have been audited by
UHY LLP, independent registered public accounting firm, as set
forth in their report thereon, included therein, and
incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon
such report given on the authority of such firm as experts in
accounting and auditing.
24
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses to be borne by us in connection with the issuance and distribution of the
securities being registered, other than underwriting discounts and commissions, are set forth
below. All amounts are estimated except for the registration fee.
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SEC Registration Fee |
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$ |
15,720 |
(1) |
NYSE Listing Fee |
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(2 |
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Legal Fees and Expenses |
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(2 |
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Accounting Fees and Expenses |
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(2 |
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Blue Sky Fees and Expenses |
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(2 |
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Printing and Engraving Expenses |
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(2 |
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Transfer Agent Fees and Expenses |
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(2 |
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Miscellaneous |
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(2 |
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Total |
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(2 |
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(1) |
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Previously paid. |
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These fees are calculated based upon the number of issuances and amount of securities offered
and accordingly cannot be estimated at this time. |
Item 15. Indemnification of Directors and Officers
General
The Registrants certificate of incorporation and bylaws generally provide that it will
indemnify its directors and officers to the full extent permitted by applicable law.
Indemnification and Insurance
Delaware corporations may indemnify their directors and officers, as well as other employees
and individuals, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement in connection with specified actions, suits or proceedings, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the corporation such as
a derivative action) if the individuals acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. A
similar standard of care applies to actions by or in the right of the corporation, except that
indemnification extends only to expenses (including attorneys fees) incurred in connection with
defense or settlement of such an action, and Delaware law requires court approval before any
indemnification where the person seeking indemnification has been found liable to the corporation.
The Registrants certificate of incorporation and bylaws provide that the Registrant will
indemnify and advance expenses to, and hold harmless, each of its directors and officers to the
fullest extent permitted by applicable law, who was or is made or is threatened to be made a party
or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he, or a person for whom he is the legal
representative, is or was a director or officer of the Registrant or, while a director or officer
of the Registrant, is or was serving at the request of the Registrant as a director, officer,
employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or
nonprofit entity, including service with respect to employee benefit plans, against all liability
and loss suffered and expenses (including attorneys fees) reasonably incurred by such indemnitee.
Notwithstanding the preceding sentence, except as otherwise provided in its certificate of
incorporation and bylaws, the Registrant will be required under its certificate of incorporation
and bylaws to indemnify, or advance expenses to, an indemnitee in connection with a proceeding (or
part thereof) commenced by such indemnitee only if the commencement of such proceeding (or part
thereof) by the indemnitee was authorized by the Registrants Board of Directors.
Also on February 24, 2010, the Registrant entered into indemnification agreements
(collectively, the Indemnification Agreements) with each of its directors and certain officers
(each, a Contractual Indemnitee). Pursuant to the indemnification
II-1
agreements, the Registrant will be obligated to indemnify the applicable Contractual
Indemnitee to the fullest extent permitted by applicable law in the event that such Contractual
Indemnitee, by reason of such Contractual Indemnitees relationship with the Registrant, was, is or
is threatened to be made a party to or participant in any threatened, pending or completed action
or proceeding, other than an action or proceeding by or in the right of the Registrant, against all
expenses, judgments, penalties, fines (including any excise taxes assessed on the Contractual
Indemnitee with respect to an employee benefit plan) and amounts paid in settlement actually and
reasonably incurred by such Contractual Indemnitee in connection with such action or proceeding,
provided that such Contractual Indemnitee acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Registrant, and, with respect to any
criminal action or proceeding, provided that he or she also had no reasonable cause to believe his
or her conduct was unlawful. The Registrant will also be obligated to indemnify such Contractual
Indemnitee to the fullest extent permitted by applicable law in the event that such Contractual
Indemnitee, by reason of such Contractual Indemnitees relationship with the Registrant, was, is or
is threatened to be made a party to or participant in any threatened, pending or completed action
or proceeding brought by or in the right of the Registrant to procure a judgment in its favor,
against all expenses actually and reasonably incurred by such Contractual Indemnitee in connection
with such action or proceeding, provided that such Contractual Indemnitee acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to the best interests of the
Registrant. Notwithstanding the foregoing sentence, no indemnification against expenses incurred by
such Contractual Indemnitee in connection with such an action or proceeding brought by or in the
right of the Registrant will be made in respect of any claim, issue or matter as to which such
Contractual Indemnitee is adjudged to be liable to the Registrant or if applicable law prohibits
such indemnification being made; provided, however, that, in such event, if applicable law so
permits, indemnification against such expenses will nevertheless be made by the Registrant if and
to the extent that the court in which such action or proceeding has been brought or is pending
determines that, despite the adjudication of liability but in view of all the circumstances of the
case, the Contractual Indemnitee is fairly and reasonably entitled to indemnity for such expenses.
The Indemnification Agreements also provide for the advancement of all reasonable expenses incurred
by such Contractual Indemnitee in connection with any action or proceeding covered by the
Indemnification Agreement. The Contractual Indemnitee will be required to repay any amounts so
advanced if, and to the extent that, it is ultimately determined that he or she is not entitled to
be indemnified by the Registrant against such expenses. The Contractual Indemnitee will further be
required to return any such advance to the Registrant which remains unspent at the conclusion of
the action or proceeding to which the advance related.
In addition, the Indemnification Agreements provide that the Registrant will use all
commercially reasonable efforts to obtain and maintain in effect during the entire period for which
the Registrant is obligated to indemnify a Contractual Indemnitee under his or her Indemnification
Agreement, one or more insurance policies providing the directors and officers of the Registrant
coverage for losses from wrongful acts and omissions and to ensure the Registrants performance of
its indemnification obligations under each Indemnification Agreement.
Item 16. Exhibits.
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Exhibit No. |
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Description |
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1.1
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Underwriting Agreement (Common Stock, Preferred Stock, and/or Warrants) (To be filed by
amendment or subsequently incorporated by reference). |
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1.2
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Underwriting Agreement (Debt Securities) (To be filed by amendment or subsequently incorporated
by reference). |
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4.1
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Certificate of Incorporation of GulfMark Offshore, Inc., as amended (Incorporated by reference
to Exhibit 3.1 of our Form 8‑K filed February 24, 2010). |
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4.2
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Bylaws of GulfMark Offshore, Inc., as amended (Incorporated by reference to Exhibit 3.2 of our
Form 8-K filed February 24, 2010). |
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4.3
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Form of U.S. Citizen Stock Certificates (Incorporated by reference to Exhibit 4.2 of our Form
8-K filed February 24, 2010). |
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4.4
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Form of Non-U.S. Citizen Stock Certificates (Incorporated by reference to Exhibit 4.3 of our
Form 8-K filed February 24, 2010). |
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4.5
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Indenture, dated as of
July 21, 2004, among GulfMark Offshore, Inc., as Issuer, and U.S. Bank
National Association, as Trustee, including a form of the Companys 7.75% Senior Notes due 2014
(Incorporated by reference to Exhibit 4.4 to our quarterly report on Form 10-Q for the quarter
ended September 30, 2004, SEC Accession No. 0001030749-04-000053). |
II-2
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Exhibit No. |
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Description |
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4.6
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First Supplemental Indenture, dated as of February 24, 2010, between GulfMark Offshore, Inc.
(f/k/a New GulfMark Offshore, Inc.) and U.S. Bank National Association, as trustee (Incorporated
by reference to Exhibit 10.1 of our Form 8-K filed February 24, 2010). |
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4.7
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Form of Debt Securities Indenture (To be filed by amendment or subsequently incorporated by
reference). |
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4.8
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Form of Note for Debt Securities (To be filed by amendment or subsequently incorporated by
reference). |
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4.9
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Form of Certificate of Designations for Preferred Stock (To be filed by amendment or
subsequently incorporated by reference). |
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4.10
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Form of Preferred Stock Certificate (To be filed by amendment or subsequently incorporated by
reference). |
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4.11
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Form of Warrant Agreement (To be filed by amendment or subsequently incorporated by reference). |
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4.12
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Form of Warrant Certificate (To be filed by amendment or subsequently incorporated by reference). |
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5.1
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Opinion of Strasburger & Price, LLP (Incorporated by reference to Exhibit 5.1 of our
Post-Effective Amendment No. 1 to Form S-3 Registration No. 333-153459 filed February 24, 2010). |
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*12.1
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Computation of ratio of earnings to fixed charges. |
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*23.1
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Consent of UHY LLP. |
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23.2
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Consent of Strasburger & Price, LLP (Contained in its opinion filed as Exhibit 5.1 hereto). |
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24.1
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Powers of Attorney (Incorporated by reference to the signature pages of our Post-Effective
Amendment No. 1 to Form S-3 Registration No. 333-153459 filed February 24, 2010). |
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25.1
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Statement of Eligibility of Trustee on Form T-1 with respect to Debt Securities Indenture (To be
filed). |
Item 17. Undertakings.
(a) |
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The undersigned Registrant hereby undertakes: |
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the Calculation of Registration Fee
table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information in the registration statement;
II-3
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not
apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be
part of the registration statement as of the date the filed prospectus was deemed part of and
included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part
of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(l)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a)
of the Securities Act of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement or prospectus that
is part of the registration statement will, as to a purchaser with a time of contract of sale prior
to such effective date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date.
(5) That, for the purpose of determining liability of the Registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of the securities:
The undersigned Registrant undertakes that in a primary offering of securities of the
undersigned Registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the
offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided by or on behalf
of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(b) |
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the Registrants annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plans annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
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II-4
(c) |
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Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, each Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Act and will be governed by the final
adjudication of such issue. |
(6) For purposes of determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(7) For the purpose of determining any liability under the Securities Act of 1933, each
post-effective amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, GulfMark Offshore, Inc. certifies
that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Post-Effective Amendment No. 2 to the Registration Statement on Form
S-3, Registration No. 333-153459 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on March 2, 2010.
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GULFMARK OFFSHORE, INC.
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/s/ QUINTIN V. KNEEN
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Quintin V. Kneen |
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Executive Vice President |
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Post-Effective
Amendment No. 2 to the Registration Statement on Form S-3, Registration No. 333-153459, has been
signed by the following persons in the capacities and on the dates indicated.
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Signature |
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Capacity |
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Date |
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/s/
Quintin V. Kneen, as agent
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Chief Executive Officer, President and Director
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March 2, 2010 |
Bruce A. Streeter
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(Principal Executive
Officer) |
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Executive Vice President, Chief Financial |
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Quintin V. Kneen
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Officer and Secretary
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March 2, 2010 |
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(Principal Financial Officer) |
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Vice President Controller and Chief |
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Samuel L. Rubio
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Accounting Officer
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March 2, 2010 |
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(Principal Accounting Officer) |
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/s/ Quintin V. Kneen, as agent
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Director
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March 2, 2010 |
Peter I. Bijur |
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/s/ Quintin V. Kneen, as agent
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Director
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March 2, 2010 |
David J. Butters |
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/s/ Quintin V. Kneen, as agent
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Director
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March 2, 2010 |
Brian R. Ford |
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/s/ Quintin V. Kneen, as agent
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Director
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March 2, 2010 |
Louis S. Gimbel, 3rd |
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/s/ Quintin V. Kneen, as agent
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Director
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March 2, 2010 |
Sheldon S. Gordon |
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/s/ Quintin V. Kneen, as agent
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Director
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March 2, 2010 |
Robert B. Millard |
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/s/ Quintin V. Kneen, as agent
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Director
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March 2, 2010 |
Robert T. OConnell |
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/s/ Quintin V. Kneen, as agent
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Director
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March 2, 2010 |
Larry T. Rigdon |
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/s/ Quintin V. Kneen, as agent
Rex C. Ross
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Director
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March 2, 2010 |
II-6
Exhibit Index
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Exhibit No. |
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Description |
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1.1
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Underwriting Agreement (Common Stock, Preferred Stock, and/or Warrants) (To be filed by amendment or
subsequently incorporated by reference). |
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1.2
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Underwriting Agreement (Debt Securities) (To be filed by amendment or subsequently incorporated by reference). |
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4.1
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Certificate of Incorporation of GulfMark Offshore, Inc., as amended (Incorporated by reference to Exhibit 3.1
of our Form 8‑K filed February 24, 2010). |
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4.2
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Bylaws of GulfMark Offshore, Inc., as amended (Incorporated by reference to Exhibit 3.2 of our Form 8-K filed
February 24, 2010). |
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4.3
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Form of U.S. Citizen Stock Certificates (Incorporated by reference to Exhibit 4.2 of our Form 8-K filed
February 24, 2010). |
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4.4
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Form of Non-U.S. Citizen Stock Certificates (Incorporated by reference to Exhibit 4.3 of our Form 8-K filed
February 24, 2010). |
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4.5
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Indenture, dated as of July 21, 2004, among GulfMark Offshore, Inc., as Issuer, and U.S. Bank National
Association, as Trustee, including a form of the Companys 7.75% Senior Notes due 2014 (Incorporated by
reference to Exhibit 4.4 to our quarterly report on Form 10-Q for the quarter ended September 30, 2004, SEC
Accession No. 0001030749-04-000053). |
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4.6
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First Supplemental Indenture, dated as of February 24, 2010, between GulfMark Offshore, Inc. (f/k/a New
GulfMark Offshore, Inc.) and U.S. Bank National Association, as trustee (Incorporated by reference to Exhibit
10.1 of our Form 8-K filed February 24, 2010). |
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4.7
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Form of Debt Securities Indenture (To be filed by amendment or subsequently incorporated by reference). |
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4.8
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Form of Note for Debt Securities (To be filed by amendment or subsequently incorporated by reference). |
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4.9
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Form of Certificate of Designations for Preferred Stock (To be filed by amendment or subsequently
incorporated by reference). |
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4.10
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Form of Preferred Stock Certificate (To be filed by amendment or subsequently incorporated by reference). |
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4.11
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Form of Warrant Agreement (To be filed by amendment or subsequently incorporated by reference). |
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4.12
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Form of Warrant Certificate (To be filed by amendment or subsequently incorporated by reference). |
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5.1
|
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Opinion of Strasburger & Price, LLP (Incorporated by reference to Exhibit 5.1 of our Post-Effective Amendment
No. 1 to Form S-3 Registration No. 333-153459 filed February 24, 2010). |
|
|
|
*12.1
|
|
Computation of ratio of earnings to fixed charges. |
|
|
|
*23.1
|
|
Consent of UHY LLP. |
|
|
|
23.2
|
|
Consent of Strasburger & Price, LLP (Contained in its opinion filed as Exhibit 5.1 hereto). |
|
|
|
24.1
|
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Powers of Attorney (Incorporated by reference to the signature pages of our Post-Effective Amendment No. 1 to
Form S-3 Registration No. 333-153459 filed February 24, 2010). |
|
|
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25.1
|
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Statement of Eligibility of Trustee on Form T-1 with respect to Debt Securities Indenture (To be filed). |
II-7