posam
As filed with the Securities and Exchange Commission on May 14, 2010
Registration No. 333-153459
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2/A 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/A.
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. (Check one):
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Large Accelerated Filer
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Accelerated Filer
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Non-Accelerated Filer o | |
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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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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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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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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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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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/A does not register
any additional amount of securities. |
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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.
On March 1, 2010, Post-Effective Amendment No. 2 was 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
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Instructions I.B.1 or I.B.2. The Registrant filed Post-Effective Amendment No. 2 to convert
the Shelf Registration Statement to the proper submission type for a non-automatic shelf
registration statement.
This Post-Effective Amendment No. 2/A is being filed in response to comments made by the
Securities and Exchange Act to Post-Effective Amendment No. 2.
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.
SUBJECT TO COMPLETION, DATED MAY 14, 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 May 13, 2010 was $31.19 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 May 14, 2010
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TABLE OF CONTENTS
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
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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.
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 Proxy Statement on Schedule 14A filed on April 30, 2010; |
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Our Quarterly Report on Form 10-Q filed May 3, 2010; |
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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),
March 1, 2010, and March 23, 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. |
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 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. |
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.
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,
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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 May 13, 2010, we have
26,184,419 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 |
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approval, up to 2,000,000
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 11 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 39 of this prospectus. |
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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
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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.
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 May 13, 2010, 26,184,419 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.
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.
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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. |
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, a Contractual Indemnitee). Pursuant to the
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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
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
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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. |
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 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.
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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
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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 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. |
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.
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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 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. |
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 May 14, 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. |
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. We also filed with the SEC a form of the indenture to govern any debt securities if not
issued under the existing Indenture. We will set forth the terms of such debt securities in the
applicable prospectus supplement. 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 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. |
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.
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
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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. |
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.
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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.
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. |
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.
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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.
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.
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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. |
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. |
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, 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. |
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. |
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
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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 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. |
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
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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, |
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. |
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 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. |
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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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. |
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. |
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
34
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.
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. |
35
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. |
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. |
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. |
36
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).
37
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.
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.
38
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.
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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Three Months Ended |
Years Ended December 31, |
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March 31. 2010 |
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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2009 |
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2010 |
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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2.83
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1.87 |
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. |
Because we have no preferred stock issued and outstanding, dividends relating to preferred
stock are not included in the calculation of fixed charges.
39
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.
40
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 |
) |
Legal Fees and Expenses |
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(2 |
) |
Accounting Fees and Expenses |
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(2 |
) |
Blue Sky Fees and Expenses |
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(2 |
) |
Printing and Engraving Expenses |
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(2 |
) |
Transfer Agent Fees and Expenses |
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(2 |
) |
Miscellaneous |
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(2 |
) |
Total |
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(2 |
) |
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(1) |
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Previously paid. |
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(2) |
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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.
41
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 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
42
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). |
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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 (Including Form of Note for Debt Securities). |
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4.8 |
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Form of Certificate of Designations for Preferred Stock (To be filed by
amendment |
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or subsequently incorporated by reference). |
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4.9 |
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Form of Preferred Stock Certificate (To be filed by amendment or subsequently
incorporated by reference). |
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4.10 |
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Form of Warrant Agreement (To be filed by amendment or subsequently
incorporated by reference). |
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4.11 |
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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. |
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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, dated March 31, 2010. |
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
44
(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; 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:
45
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.
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(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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(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. |
46
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/A 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 May 14, 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/A 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
Bruce A. Streeter
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Chief Executive
Officer, President
and Director
(Principal Executive
Officer)
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May 14, 2010 |
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/s/ Quintin V. Kneen
Quintin V. Kneen
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Executive Vice
President, Chief
Financial Officer
and Secretary
(Principal Financial
Officer)
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May 14, 2010 |
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/s/ Samuel L. Rubio
Samuel L. Rubio
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Vice President
Controller and Chief
Accounting Officer
(Principal
Accounting Officer)
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May 14, 2010 |
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/s/ Quintin V. Kneen, as agent
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Director
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May 14, 2010 |
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/s/ Quintin V. Kneen, as agent
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Director
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May 14, 2010 |
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/s/ Quintin V. Kneen, as agent
Brian R. Ford
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Director
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May 14, 2010 |
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/s/ Quintin V. Kneen, as agent
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Director
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May 14, 2010 |
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/s/ Quintin V. Kneen, as agent
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Director
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May 14, 2010 |
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47
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/s/ Quintin V. Kneen, as agent
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Director
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May 14, 2010 |
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/s/ Quintin V. Kneen, as agent
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Director
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May 14, 2010 |
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/s/ Quintin V. Kneen, as agent
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Director
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May 14, 2010 |
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/s/ Quintin V. Kneen, as agent
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Director
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May 14, 2010 |
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48
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 (Including Form of Note for Debt Securities). |
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4.8 |
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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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4.9 |
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Form of Preferred Stock Certificate (To be filed by amendment or subsequently
incorporated by reference). |
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4.10 |
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Form of Warrant Agreement (To be filed by amendment or subsequently
incorporated by reference). |
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4.11 |
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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. |
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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). |
49
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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, dated March 31, 2010. |
50