As filed with the Securities and Exchange Commission on
August 28, 2000
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GULFMARK OFFSHORE, INC.
(Exact Name of Registrant as specified in its charter)
Delaware 4499 76-0526032
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification
incorporation or Classification No.)
organization) Code No.)
5 Post Oak Park, Suite 1170
Houston, Texas 77027
(713) 963-9522
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
Edward A. Guthrie Copy to:
Executive Vice President, Finance W. Garney Griggs, Esq.
GulfMark Offshore, Inc., Inc. Griggs & Harrison, P.C.
5 Post Oak Park, Suite 1170 1301 McKinney, Suite 3200
Houston, Texas 77027 Houston, Texas 77010-3033
(713) 963-9522 (713) 651-0600
(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 this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. __
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. _x_
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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. __
If this Form is a post-effective amendment filed pursuant to Rule 4629(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. __
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. __
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
TITLE OF EACH MAXIMUM PROPOSED
CLASS OF AMOUNT OFFERING MAXIMUM
SECURITIES TO BE PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED PER OFFERING REGISTRATION
REGISTERED (1)(6) UNIT(1) PRICE (1)(6) FEE
<S> <C> <C> <C> <C>
Common Stock(2)
Preferred Stock(3)
Debt Securities(4) $125,000,000 100% $125,000,000 $33,000
Warrants(5)
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
(2) Subject to note (6) below, we are registering 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.
(3) Subject to note (6) below, we are registering 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.
(4) Subject to note (6) below, we are registering an indeterminate amount of
debt securities that we may issue from time to time at indeterminate
prices.
(5) Subject to note (6) below, we are registering 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.
(6) 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 amount
computed pursuant to Rule 457(c) for any common stock; the issue price of
any warrants; and the exercise price of any warrants; all of which
together will not exceed $125,000,000.
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 COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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Subject to Completion - Dated August 28, 2000
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.
Prospectus
$125,000,000
GULFMARK OFFSHORE, INC.
We may use this prospectus to offer the following securities for sale:
- Common stock;
- Preferred stock;
- Debt securities which will rank equally and ratably with
our senior debt; and
- Warrants to purchase our common stock.
We will provide the specific terms of the securities we are offering in
supplements to this prospectus. A supplement may also update or change
information contained in this prospectus. This prospectus may not be used to
sell securities unless accompanied by a prospectus supplement. You should
read this prospectus and any related prospectus supplements carefully before
you invest in our securities.
We may sell securities directly to one or more purchasers or to or
through underwriters, dealers or agents. We will identify any underwriters,
dealers or agents involved in the sale of securities in the accompanying
prospectus.
Our common stock is traded on the Nasdaq National Market under the symbol
"GMRK".
YOU SHOULD CAREFULLY CONSIDER THE RISKS DESCRIBED UNDER THE CAPTION "RISK
FACTORS" BEGINNING ON PAGE 6 BEFORE INVESTING IN OUR SECURITIES.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED THAT
THIS PROSPECTUS IS ACCURATE OR COMPLETE. IT IS ILLEGAL FOR ANYONE TO TELL YOU
OTHERWISE.
The Prospectus is dated August 28, 2000.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the U.S. Securities and Exchange Commission using a shelf registration
process. Under this shelf registration process, we may sell any combination
of the securities described in this prospectus in one or more offerings up to
a total dollar amount of $125,000,000.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell 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 heading "Where You Can Find
More Information." This prospectus is preliminary and the information within
may be changed when finalized.
TABLE OF CONTENTS
Page
About This Prospectus 3
Where you Can Find More Information 4
The Company 5
Forward-Looking Statements 5
Risk Factors 6
Use of Proceeds 12
Ratio of Earnings to Fixed Charges 12
Description of Common Stock 12
Description of Preferred Stock 15
Description of Debt Securities 16
Description of Warrants 26
Plan of Distribution 28
Legal Matters 30
Experts 30
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT. WE
HAVE NOT AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT INFORMATION. WE
ARE NOT MAKING AN OFFER OF THESE SECURITIES IN ANY STATE WHERE THE OFFER IS
NOT PERMITTED. 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 THE PROSPECTUS.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over
the Internet at the SEC's web site at http://www.sec.gov. You may also read
and copy any document we file at the public reference rooms at the SEC's
offices at the following locations:
Judiciary Plaza 7 World Trade Center Northwestern Atrium
Room 1024 New York, NY 10048 Center
450 Fifth Street, NW 500 West Madison St.
Washington, DC 20549 Suite 1400
Chicago, IL 60661
Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms.
We have filed a registration statement and related exhibits on Form S-3
with the SEC under the Securities Act of 1933. The registration statement
contains additional information about us and our securities. You may read the
registration statement and exhibits without charge at the SEC's public
reference rooms, you may access same at the SEC's web site described above, or
you may obtain copies from the SEC at prescribed rates.
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 Securities Exchange Act of 1934:
- Annual Report on Form 10-K for the fiscal year ended December 31,
1999(filed March 29, 2000); and
- Current Report on Form 8-K dated April 10, 2000 (filed April 14,
2000); and
- Current Report on Form 8-K dated May 10, 2000 (filed May 10, 2000);
and
- Quarterly Report on Form 10-Q for the quarter ended March 31,
2000(filed May 15, 2000); and
- Current Report on Form 8-K dated August 7, 2000 (filed August 7,
2000); and
- Current Report on Form 8-K dated August 8, 2000 (filed August 8,
2000); and
- Quarterly Report on Form 10-Q for the quarter ended June 30, 2000
(filed August 11, 2000); and
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<PAGE>5
- All documents filed by us with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the
date of this prospectus and prior to the termination of this offering.
At your request, we will provide you with a free copy of any of these
filings (except for exhibits, unless the exhibits are specifically
incorporated by reference into the filing). You may request copies by writing
or telephoning us at:
5 Post Oak Park, Suite 1170
Houston, Texas 77027-3414
(713) 963-9522
Attention: Edward A. Guthrie
THE COMPANY
We are one of the largest operators of vessels providing marine support
and transportation services to the offshore oil and natural gas industry. The
services provided by our 50 vessel fleet include:
- the transportation of drilling materials, supplies and personnel to
offshore facilities and to drilling rigs;
- the towing of drilling rigs from one location to another;
- the support for the construction and removal of offshore pipelines and
facilities; and
- vessel management services for other offshore vessel shipowners.
We have operations in four of the five major oil and natural gas
exploration and development areas of the world:
- The North Sea, where we operate 16 owned vessels, 2 bareboat chartered
vessels and 16 managed vessels;
- Southeast Asia, where we operate 12 owned vessels;
- Brazil, where we operate 2 owned vessels and one bareboat chartered
vessel; and
- West Africa (Equatorial Guinea), where we operate one bareboat
chartered vessel.
We also operate vessels in other regions of the world to meet customer
requirements.
Our principal executive offices are located at 5 Post Oak Park, Suite
1170, Houston, Texas 77027-3414, and our telephone number at that address is
(713) 963-9522.
FORWARD-LOOKING STATEMENTS
Some of the information included in this prospectus and in the documents
we have incorporated by reference contains, and any prospectus supplement may
contain, "forward-looking statements." Forward-looking statements relate to
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<PAGE>6
our future plans, objectives, expectations and intentions and are not based on
historical facts. Forward-looking statements may include, among other things,
business strategy and expectations concerning industry conditions, market
position, future operations, margins, profitability, liquidity and capital
resources. You can generally identify these statements by the use of words
such as "anticipate", "believe", "estimate", "expect", "intend" or similar
expressions.
These forward-looking statements are based on assumptions that we believe
are reasonable, but they are open to a wide range of uncertainties and
business risks, many of which are outside our control, including, but not
limited to, those discussed under the heading "Risk Factors" below. As a
result, our actual results of operations may differ materially from those
expressed or implied by any forward-looking statements. We caution you not to
place undue reliance on these forward-looking statements. Forward-looking
statements speak only as of the date they are made. We will not update or
revise any forward-looking statements unless the securities laws require us to
do so.
RISK FACTORS
An investment in our securities involves significant risks. You should
carefully consider the risk factors described below before deciding whether to
invest in our securities. The risks and uncertainties described below are not
the only ones we face. You should also carefully read and consider all of the
information we have included, or incorporated by reference, in this
prospectus, before you decide to invest in our securities. Additional risks
and uncertainties not presently known to us or that we currently deem
immaterial may also impair our business.
Our business relies on the oil and natural gas industry.
Demand for our services depends on activity in offshore oil and natural
gas exploration, development and production. The level of exploration,
development and production activity is affected by factors such as:
- prevailing oil and natural gas prices;
- expectations about future prices;
- the cost of exploring for, producing and delivering oil
and natural gas;
- the sale and expiration dates of available offshore
leases;
- demand for petroleum products;
- current availability of oil and natural gas resources;
- the rate of discovery of new oil and natural gas reserves
in offshore areas;
- local and international political and economic
conditions;
- technological advances; and
- the ability of oil and natural gas companies to generate
or otherwise obtain funds for capital.
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<PAGE>7
During recent years, the level of offshore exploration, development and
production activity has been volatile. A decline in the worldwide demand for
oil and natural gas or prolonged low oil or natural gas prices in the future
would likely result in reduced exploration and development of offshore areas
and a decline in the demand for offshore marine services. Any such decrease
in activity is likely to reduce our day rates and our utilization rates and,
therefore, could have a material adverse effect on our financial condition and
results of operations.
An increased supply of offshore support vessels could reduce day rates,
utilization rates and operating margins.
Charter rates for marine support vessels depend in part on the supply of
vessels. Excess vessel capacity in the industry may occur in the event of any
significant increase in the supply of offshore support vessels, which may
result from:
- refurbishing vessels that have been taken out of service,
- converting vessels formerly dedicated to services other
than offshore marine services,
- constructing new vessels, or
- moving vessels from one offshore market area to another.
During the period 1996 to 1998, construction of vessels of the type
operated by us for use in the North Sea has significantly increased. The
addition of new capacity to the worldwide offshore marine fleet is likely to
increase competition in those markets where we presently operate, which in
turn, could reduce day rates, utilization rates and operating margins. If
this increased vessel capacity does not result in the retirement of older
vessels, and a prolonged period of low oil and natural gas prices occurs in
the future, our financial condition and results of operations may be adversely
affected.
Government regulation could adversely affect our business.
We must comply with extensive government regulation in the form of
international conventions, federal and state laws and regulations in
jurisdictions where our vessels operate and/or are registered. These
conventions, laws and regulations govern matters of environmental protection,
worker health and safety, and the manning, construction and operation of
vessels. We believe that we are in material compliance with all applicable
environmental, health and safety laws and regulations. We are not a party to
any pending litigation or similar proceeding, and we are not aware of any
threatened litigation or proceeding which, if adversely determined, would have
a material adverse effect on our financial condition or results of operations.
However, the risks of incurring substantial compliance costs, liabilities and
penalties for non-compliance are inherent in offshore marine operations.
Compliance with environmental, health and safety laws increases our costs of
doing business. Additionally, environmental, health and safety laws change
frequently. Therefore, we are unable to predict the future costs or other
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future impact of environmental, health and safety laws on our operations.
There is no assurance that we can avoid significant costs, liabilities and
penalties imposed as a result of governmental regulation in the future.
Operating hazards increase our risk of liability; we may not be able to fully
insure against these risks.
Our operations are subject to various operating hazards and risks,
including:
- adverse weather conditions,
- mechanical failure,
- navigation errors,
- collision, and
- oil and hazardous substance spills.
These risks present a threat to the safety of personnel and to our
vessels, cargo, equipment under tow and other property, as well as the
environment. We could be required to suspend our operations or request that
others suspend their operations as a result of these hazards. Third parties
may have significant claims against us for damages due to personal injury,
death, property damage, pollution and loss of business.
We maintain insurance coverage against the casualty and liability risks
listed above. We believe our insurance is adequate, and we have never
experienced a loss in excess of policy limits. However, we may not be able to
renew or maintain our existing insurance coverage at commercially reasonable
rates or at all. Additionally, there is no assurance that our insurance
coverage will be adequate to cover future claims that may arise.
We rely on foreign operations.
During the past five years, we derived substantially all of our revenues
from foreign sources. We therefore face risks inherent in conducting business
internationally, such as:
- legal and governmental regulatory requirements;
- difficulties and costs of staffing and managing international
operations;
- language and cultural differences;
- potential vessel seizure or nationalization of assets;
- import-export quotas or other trade barriers;
- difficulties in collecting accounts receivable and longer collection
periods; political and economic instability;
- imposition of currency exchange controls; and
- potentially adverse tax consequences.
In the past, these conditions or events have not materially affected our
operations. However, we cannot predict whether any such conditions or events
might develop in the future. Also, we organized our subsidiary structure and
our operations in part based on certain assumptions about various foreign and
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domestic tax laws, currency exchange requirements, and capital repatriation
laws. While we believe our assumptions are correct, there can be no assurance
that taxing or other authorities will reach the same conclusion. If our
assumptions are incorrect, or if the relevant countries change or modify such
laws or the current interpretation of such laws, we may suffer adverse tax and
financial consequences, including the reduction of cash flow available to meet
required debt service and other obligations. Any of these factors could
materially adversely affect our international operations and, consequently,
our business, operating results and financial condition.
We are exposed to foreign currency fluctuations.
We are exposed to currency fluctuations and exchange rate risks as a
result of our foreign operations. To minimize the financial impact of these
risks, we attempt to match the currency of operating costs with the currency
of charter revenue. We occasionally enter into forward foreign exchange
contracts to hedge specific foreign currency exposures, but we do not
speculate in foreign currencies. Because we conduct a large portion of our
operations in foreign currencies, any increase in the value of the U.S. dollar
in relation to the value of applicable foreign currencies could adversely
affect our operating revenues when translated into U.S. dollars. To date,
currency fluctuations have not had a material impact on our financial
condition or results of operations.
Our fleet of owned vessels is aging, requiring increasing capital
expenditures.
As of July 31, 2000, the average age of our 30 owned offshore support
vessel fleet was approximately 14 years, categorized as follows:
- the North Sea capable fleet, consisting of 18 vessels
with an average age of 10 years; and
- the standard fleet, consisting of 12 vessels with an
average age of 20 years.
Expenditures required for the repair, certification and maintenance of a
vessel typically increase with vessel age. These expenditures may increase to
a level at which they are not economically justifiable. We cannot assure you
that we will have sufficient resources to maintain our fleet either by
extending the economic life of existing vessels through major refurbishment or
by acquiring new or used vessels.
Competition could adversely affect our business.
We operate in a competitive industry. The principal competitive factors
in the marine support services industry include:
- price, service and reputation of vessel operators and
crews;
- national flag preferences;
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- operating conditions;
- suitability of vessel types;
- vessel availability;
- technical capabilities of equipment and personnel;
- safety and efficiency;
- complexity of maintaining logistical support; and
- cost of moving equipment from one market to another.
Many of our competitors have substantially greater resources than we
have. Competitive bidding and downward pressures on profits and pricing
margins could adversely affect our business, financial condition and results
of operations.
We have a significant amount of debt.
We have significant indebtedness and will require substantial cash flow
to meet our debt service requirements. At June 30, 2000, our total
indebtedness was approximately $130.2 million. After this offering, we may
have increased indebtedness. A high level of indebtedness will affect our
future operations in several ways, including the following:
- A substantial amount of our cash flow from operations is dedicated to
the payment of interest on our indebtedness and is not available for
other purposes.
- We may be more vulnerable to general adverse economic and industry
conditions than some of our competitors who have less debt, and
therefore, we may be at a competitive disadvantage.
- Covenants in our debt obligations require us to meet certain financial
tests and limit our ability to borrow additional funds, make certain
capital expenditures, or sell assets.
- We may experience difficulties in obtaining additional financing in
the future for working capital, capital expenditures, acquisitions or
general corporate purposes.
Our ability to meet our debt obligations will depend on our future
performance. To the extent that we are unable to repay our indebtedness as it
becomes due or at maturity with cash on hand or from other sources, we will
need to refinance our debt, sell assets or repay the debt with the proceeds of
an equity offering. There is no assurance that additional indebtedness or
equity financing will be available to us in the future for the refinancing or
repayment of existing indebtedness, nor can we give any assurance as to the
timing of any asset sales or the proceeds that could be realized by us from
any such asset sale.
We have a contingent liability for the operations of our predecessor.
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GulfMark was formed as a spin-off from our predecessor and began
separate trading on May 1, 1997. The assets remaining with the
predecessor included a domestic erosion control business known as
"Ercon" and an investment in the common stock of EVI, Inc. (now known
as Weatherford, Inc.). In effecting the spin-off, we agreed to
indemnify our predecessor, Weatherford and certain of their affiliates
against:
- liabilities for all past and future claims and litigation against
Weatherford or our predecessor stemming from the predecessor's or our
offshore marine services operations;
- liabilities for claims and litigation against Weatherford, our
predecessor, or its current or past subsidiaries and affiliates,
including Ercon, arising out of acts or omissions prior to May 1,
1997; and
- any tax liabilities in the event the spin-off and related transactions
are determined to be taxable.
We have established a reserve on our financial statements which we
believe is adequate to cover the contingent liabilities that may arise under
the indemnity. However, there is no assurance that the reserve is adequate.
Any future successor of GulfMark would be required to assume these indemnity
obligations, which may have the effect of delaying, deferring or preventing a
change of control of GulfMark.
Control by our affiliates may limit the ability of stockholders to
influence the outcome of director elections and other matters requiring
stockholder approval.
As of August 18, 2000, Lehman Brothers Holdings, Inc. beneficially owned
approximately 24.88%, and Estabrook Capital Management Inc. beneficially owned
approximately 17.62%, of the issued and outstanding shares of our common
stock. The Chairman of the Board of Directors and one additional director of
GulfMark are employees of Lehman Brothers, Inc., which is an affiliate of
Lehman Brothers Holdings, Inc. The ownership and board representation of
Lehman Brothers Holdings, Inc. enables it to exercise substantial influence
over the election of directors and other corporate matters requiring
stockholder or board of directors approval. This concentration of ownership
may also have the effect of delaying or preventing a change of control.
We depend on key personnel.
We depend to a significant extent upon the efforts and abilities of our
executive officers and other key management personnel. There is no assurance
that these individuals will continue in such capacity for any particular
period of time. The loss of the services of one or more of our executive
officers or key management personnel could adversely affect our operations.
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USE OF PROCEEDS
Unless we state otherwise in a prospectus supplement, we will use the net
proceeds from the sale of the securities 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
the securities that we do not immediately need for these purposes.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for the years indicated below was
as follows:
<TABLE>
<CAPTION>
Years Ended December 31, 6 Months Ended
---------------------------------------------------- ---------------
1995 1996 1997 1998 1999 June 30, 2000
---- ---- ---- ---- ---- ---------------
<S> <C> <C> <C> <C> <C> <C>
1.1 2.3 3.1 3.5 1.1 (a)
</TABLE>
(a) Earnings were insufficient to cover fixed charges and fixed charges
exceeded earnings by approximately $0.7 million.
Our ratios of earnings to fixed charges are calculated as follows:
- "earnings," which consist of consolidated income or loss from
continuing operations plus income taxes, minority interest and fixed
charges, except capitalized interest; and
- "fixed charges," which consist of 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.
DESCRIPTION OF COMMON STOCK
General
Our certificate of incorporation authorizes us to issue up to 15,000,000
shares of common stock, par value $0.01 per share, and up to 2,000,000 shares
of preferred stock, without par value. As of August 28, 2000, an aggregate of
8,161,399 shares of common stock and no shares of preferred stock were
outstanding. Our common stock is listed on the Nasdaq National Market under
the symbol "GMRK."
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Voting Rights
Holders of common stock are entitled to one vote for each share on all
matters submitted to a vote of our stockholders. Holders of common stock do
not have any cumulative voting rights.
Removal of Directors; Filling Vacancies on Board of Directors; Size of the
Board
Our directors may be removed, with or without cause, by vote of the
holders of a majority of the shares then entitled to vote at an election of
directors. Vacancies in a directorship or newly created directorships
resulting from an increase in the number of directors may be filled by the
vote of a majority of the remaining directors then in office, even though less
than a quorum. Any director elected to fill a vacancy on the board serves for
the remainder of the full term of the class of directors in which the new
directorship was created or in which the vacancy occurred. The number of
directors is fixed from time to time by the board, but shall not be less than
3 nor more than 15 persons.
Special Meetings of the Stockholders
Our bylaws provide that special meetings of stockholders may be called
only by our chairman or by a vote of the majority of our board of directors.
Our stockholders do not have the power to call a special meeting.
Dividends
Subject to any preferences that may be applicable to any then-outstanding
shares of preferred stock, holders of common stock are entitled to receive
dividends at such times and amounts as may be declared by our board of
directors. We do not intend to pay cash dividends on our common stock in the
foreseeable future. Certain of our financing arrangements restrict the
payment of cash dividends.
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 held, in our
remaining assets, if any.
Other Provisions
Shares of our of common stock are not redeemable and have no
subscription, conversion or preemptive rights.
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Transfer Agent and Registrar
The Transfer Agent and Registrar for our common stock is American Stock
Transfer Trust Company.
Provisions of Our Certificate of Incorporation and Bylaws
We are a Delaware corporation. Certain Delaware laws are designed in
part to make it more difficult and time consuming for a person to obtain
control of our company. These provisions reduce the vulnerability of our
company to an unsolicited takeover proposal. On the other hand, these
provisions may have an adverse effect on the ability of stockholders to
influence the governance of our company.
We have summarized certain provisions of our certificate of incorporation
and bylaws below, but you should read our certificate of incorporation and
bylaws for a more complete description of the rights of holders of our common
stock.
Limitation of Directors Liability
Our certificate of incorporation contains provisions eliminating the
personal liability of our directors to us and our stockholders for monetary
damages for breaches of their fiduciary duties as directors to the fullest
extent permitted by Delaware law. Under Delaware law and our certificate of
incorporation, our directors will not be liable for a breach of his or her
duty except for liability for:
- a breach of his or her duty of loyalty to us or our stockholders;
- acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
- dividends or stock repurchases or redemptions that are unlawful under
Delaware law; and
- any transaction from which he or she receives an improper personal
benefit.
These provisions pertain only 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 Delaware corporate law and not for violations of other laws such
as the federal securities 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.
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Delaware Section 203
As a Delaware corporation we are subject to Section 203 of the Delaware
General Corporation Law. Section 203 imposes a three-year moratorium on the
ability of Delaware corporations to engage in a wide range of specified
transactions with any "interested stockholder." An interested stockholder
includes, among other things, any person other than the corporation and its
majority-owned subsidiaries who owns 15% or more of any class or series of
stock entitled to vote generally in the election of directors. However, the
moratorium will not apply if, among other things, the transaction is approved
by:
- the corporation's board of directors prior to the date the
interested stockholder became an interested stockholder; or
- the holders of two-thirds of the outstanding shares of each class
or series of stock entitled to vote generally in the election of
directors, not including those shares owned by the interested
stockholder.
We have approved the acquisition by Lehman Brothers Holdings, Inc. of its
shares of our common stock. Therefore, Lehman is not subject to the
restrictions under Section 203.
DESCRIPTION OF PREFERRED STOCK
Our certificate of incorporation authorizes us to issue, without
stockholder approval, up to 2,000,000 shares of preferred stock, without par
value. As of the date of this prospectus, we have not issued any preferred
stock. Our board of directors may from time to time authorize us to issue one
or more series of preferred stock and may fix the designations, 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.
Thus, 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 may include:
- the designation of the series, which may be by distinguishing
number, letter and title;
- the number of shares of the series;
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- the price at which the preferred stock will be issued;
- the dividend rate, if any, or the method of calculation, including
whether dividends shall be cumulative or non-cumulative;
- the dates at which dividends, if any, shall be payable;
- the redemption rights and price or prices, if any;
- the terms and amount of any sinking fund;
- the liquidation preference per share;
- whether the shares of the series shall be convertible, and if so,
- the specification of the securities into which such preferred
stock is convertible;
- the conversion price or prices or rate 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;
- restrictions on the issuance of shares of the same series or of
any other class or series;
- 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 indentures. Unless otherwise
indicated in the applicable prospectus supplement, we will issue the debt
securities under an indenture dated June 8, 1998, between us and State Street
Bank and Trust Company, as trustee. The indenture is an exhibit to the
registration statement of which this prospectus is a part.
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 and any supplemental indenture 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 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:
- the designation or title of the debt securities;
- any limit on the aggregate principal amount of the debt securities;
- the percentage of the principal amount at which debt securities
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will be issued;
- the terms relating to the subordination of the debt securities;
- 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;
- 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;
- the date or dates on which the debt securities will mature;
- 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;
- 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;
- the place or places where payments on the debt securities will be
payable;
- 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;
- the denominations in which the debt securities will be issuable;
- any index or formula used to determine the amount of payments on the
debt securities;
- 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;
- the terms of any guarantee of the payment of amounts due on the debt
securities;
- any restrictive covenants for the benefit of the holders of the debt
securities;
- the events of default with respect to the debt securities; and
- any other terms of the debt securities.
Priority of the Debt Securities
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
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One or more of our subsidiaries, as guarantors, may guarantee our
obligations under the debt securities. Any such guarantee will fully and
unconditionally guarantee our obligations under the debt securities on a joint
and several basis subject to the limitation described in the next paragraph.
If we default in payment of the principal of, or premium, if any, or interest
on, the debt securities, the guarantors, jointly and severally, will 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 guarantor's obligations will be limited to the lesser of the
following amounts:
- the aggregate amount of our obligations under the debt
securities and the indenture; and
- the amount, if any, which would not have rendered such
guarantor "insolvent" under Federal or New York law,
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 have your debt securities broken into more debt securities of
smaller denominations or combined into fewer debt securities of larger
denominations, as long as the total principal amount is not changed. This is
called an "exchange."
You may exchange or transfer debt securities at any office we maintain
for this purpose in accordance with the terms of the indenture. The trustee
acts as our agent for registering debt securities in the names of holders and
transferring debt securities. We may change this appointment to another
entity or perform these tasks ourselves. The entity performing the role of
maintaining the list of registered holders is called the "security registrar."
You will not be required to pay a service charge to transfer or exchange
debt securities, but you may be required to pay for any tax or other
governmental charge associated with the exchange or transfer. The transfer or
exchange will only be made if the security registrar is satisfied with your
proof of ownership.
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If we designate additional transfer agents, they will be named in the
prospectus supplement. We may cancel the designation of any particular
transfer agent. We may also approve a change in the office through which any
transfer agent acts.
If we redeem less than all of the debt securities, we may block the
transfer or exchange of debt securities during the period beginning 15 days
before the day we mail the notice of redemption and ending on the day of that
mailing, in order to freeze the list of holders to prepare the mailing. We may
also refuse to register transfers or exchanges of debt securities selected for
redemption, except that we will continue to permit transfers and exchanges of
the unredeemed portion of any security being partially redeemed.
Additionally, we may refuse to register transfers or exchanges between a
record date and the next succeeding interest payment date.
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 for which we have sale proceeds
exceeding $10 million which are not timely applied toward repayment of debt or
investment in other assets useful to our business, as described in the
indenture, we are required to offer to purchase outstanding debt securities,
in whole or in part.
Payment and Paying Agents
Unless otherwise provided in a prospectus supplement, we will pay
interest to you on June 1st and December 1st if you are a direct holder listed
in the trustee's records at the close of business on May 15th and November
15th, respectively, even if you no longer own the security on the interest due
date. 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.
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.
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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, that 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:
- by the depositary to a nominee of the depositary;
- by a nominee of the depositary to the depositary or another nominee
of the depositary; or
- 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.
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 ("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
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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 depositary's or its
nominee's 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.
Covenants
With respect to each series of debt securities, we will be required to:
- pay the principal of, and interest and any premium on, the debt
securities when due;
- maintain a place of payment;
- deliver certain periodic reports to the holders of the debt
securities at the times set forth in the indenture;
- 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
- pay any material taxes.
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The indenture for the debt securities contains covenants limiting our
ability, or the ability of our subsidiaries, to:
- incur additional debt (including guarantees);
- make certain payments;
- engage in other business activities;
- issue other securities;
- dispose of assets;
- enter into certain transactions with our subsidiaries and other
affiliates;
- incur liens; and
- 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:
- the person formed by or surviving the consolidation or merger (if
not us), or to which the sale, lease, conveyance, transfer or other
disposition is to be made is a corporation, limited liability
company or partnership organized and existing under the laws of
the United States or any state or the District of Columbia, and the
person assumes by supplemental indenture in a form satisfactory to
the trustee all of our obligations under any indenture;
- immediately before and after giving effect to the transaction and
treating any debt that becomes an obligation of ours or of any of
our subsidiaries as having been incurred by us or our subsidiary at
the time of the transaction, no default or event of default shall
have occurred and be continuing; and
- the entity formed by or surviving such transaction (if not us) will
have a certain net worth and 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 any indenture
means:
- 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;
- our default in the observance of certain covenants as set forth in
the indenture;
- our default, for 30 days after delivery of written notice, in the
observance or performance of other covenants;
- our default in the payment of our other indebtedness;
- bankruptcy, insolvency or reorganization events relating to us or
our subsidiaries;
- 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
- 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 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 provides that subject to the duty of the trustee during a
default to act with the required standard of care, the trustee has no
obligation to exercise any right or power granted to it under the indenture at
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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 therein, 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 with respect 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:
- you have given the trustee written notice of the default and its
continuance;
- 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;
- the trustee has not instituted the action within 60 days of the
request; and
- 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,
- will be discharged from our obligations in respect of the debt
securities under the indenture (except for certain obligations
relating to the trustee and obligations to register the transfer or
exchange of debt securities, replace stolen, lost or mutilated
debt securities, maintain paying agencies and hold moneys for
payment in trust) or
- 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.
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To exercise the above option, 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. 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:
- 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,
- 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
- 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:
- reduce the principal of or change the stated maturity of any such
debt securities;
- waive certain provisions regarding redemption in a manner adverse
to the rights of any holder of such debt securities;
- reduce the rate of or change the time for payment of interest on
such debt securities;
- waive a default in the payment of principal or interest on such
debt securities;
- 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
- 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, 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 in respect of any
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:
- the title and aggregate number of warrants;
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- the price or prices at which the warrants will be issued;
- 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;
- the date on which the right to exercise the warrant begins and the
date on which the right expires;
- if applicable, the minimum or maximum amount of warrants that may
be exercised at any one time;
- 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;
- any provision dealing with the date on which the warrants and
related securities will be separately transferable;
- any mandatory or optional redemption provision;
- the identity of the warrant agent; and
- any other terms of the warrants.
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:
- payment of the exercise price;
- any required information described on the warrant
certificates;
- the number of warrants to be exercised;
- an executed and completed warrant certificate; and
- any other items required by the warrant agreement.
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If a warrant holder exercises only part of the warrants represented by a
single certificate, the warrant agent will issue a new warrant certificate for
any warrants not exercised. Unless the prospectus supplement states
otherwise, no fractional shares will be issued upon exercise of warrants, but
we will pay the cash value of any fractional shares otherwise issuable.
The exercise price and the number of shares of common stock for which
each warrant can be exercised will be adjusted upon the occurrence of events
described in the warrant agreement, including the issuance of a common stock
dividend or a combination, subdivision or reclassification of common stock.
Unless the prospectus supplement states otherwise, no adjustment will be
required until cumulative adjustments require an adjustment of at least 1%.
From time to time, we may reduce the exercise price as may be provided in the
warrant agreement.
Unless the prospectus supplement states otherwise, if we enter into any
consolidation, merger, or sale or conveyance of our property as an entirety,
the holder of each outstanding warrant will have the right to acquire the kind
and amount of shares of stock, other securities, property or cash receivable
by a holder of the number of shares of common stock into which the warrants
were exercisable immediately prior to the occurrence of the event.
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:
- to cure any ambiguity;
- to correct or supplement any provision which may be defective or
inconsistent with any other provisions; or
- 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.
PLAN OF DISTRIBUTION
We may sell securities directly to one or more purchasers or to or
through underwriters, dealers or agents. The related prospectus supplement
will set forth the terms of each offering, including the name or names of any
underwriters, the purchase price and proceeds to us from such sale, any
underwriting discounts and other items constituting underwriters'
compensation, the public offering price and any discounts or concessions
allowed, reallowed or paid to dealers, and any securities exchanges on which
the securities may be listed.
We may distribute our securities from time to time in one or more
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transactions at a fixed price or prices (which may be changed), at market
prices prevailing at the time of sale, at prices related to prevailing market
prices or at negotiated prices. Our prospectus supplement will describe the
method of distribution.
If underwriters are used in the sale, the underwriters may acquire the
securities for their own account and may resell them from time to time in one
or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale.
Securities may be offered to the public through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
underwriters without a syndicate. If an underwriting syndicate is used, the
managing underwriter or underwriters will be named in the prospectus
supplement. Unless otherwise set forth in the prospectus supplement, the
obligations of the underwriters to purchase securities will be subject to
certain conditions precedent, and the underwriters will be obligated to
purchase all securities offered if any are purchased. Any public offering
price and any discounts or concessions allowed, reallowed or paid to dealers
may be changed from time to time.
If a dealer is used in an offering of securities, we may sell the
securities to the dealer, as principal. The dealer may then resell the
securities to the public at varying prices to be determined by the dealer at
the time of sale. The terms of the transaction will be set forth in a
prospectus supplement.
Commissions payable by us to any agent involved in the offer or sale of
securities (or the method by which such commissions may be determined) will be
set forth in a prospectus supplement. Unless otherwise indicated in the
prospectus supplement, the agent will be acting on a best efforts basis.
If so indicated in the prospectus supplement, we may authorize
underwriters, dealers or agents to solicit offers by certain specified
institutions to purchase securities from us pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the
future. These contracts will be subject to the conditions set forth in the
prospectus supplement, and the prospectus supplement will set forth the
commission payable by us for solicitation of the contracts.
Dealers and agents named in a prospectus supplement may be deemed to be
underwriters of the securities within the meaning of the Securities Act of
1933. Underwriters, dealers and agents may be entitled under agreements
entered into with us to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments that the underwriters, dealers or agents
may be required to make. Underwriters, dealers and agents may engage in
transactions with or perform services for us in the ordinary course of
business.
As of the date of this prospectus, only our common stock is traded on the
29
<PAGE>30
Nasdaq National Market. Except for our common stock, each security sold using
this prospectus will have no established trading market. Any underwriters to
whom securities are sold may make a market in the securities, but will not be
obligated to do so and may discontinue their market making activities at any
time. There can be no assurance that a secondary market will be created for
any of the securities that may be sold using this prospectus or that any
market created will continue.
LEGAL MATTERS
Griggs & Harrison, P.C., Houston, Texas, will pass upon certain legal
matters relating to the validity of the common stock, preferred stock, debt
securities and warrants.
EXPERTS
The consolidated financial statements as of December 31, 1999 and 1998,
and for each of the three years in the period ended December 31, 1999
incorporated by reference in this prospectus and elsewhere in the registration
statement have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in
giving said report.
30
<PAGE>31
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Estimated expenses, other than underwriting discounts and commissions,
payable by the registrant in connection with the issuance and sale of the
securities being registered hereby, are as follows:
<TABLE>
<CAPTION>
<S> <C>
Securities Exchange Commission Registration Fee..$ 33,000
*Printing and Engraving Expenses................. 75,000
*Legal Fees and Expenses......................... 100,000
*Accounting Fees and Expenses.................... 50,000
*Blue Sky Fees and Expenses...................... 10,000
*Transfer Agent Fees and Expenses................ 10,000
*Miscellaneous................................... 65,000
-----------
Total.......................................$ 343,000
===========
</TABLE>
*Estimated.
Item 15. Indemnification of Directors and Officers.
General
Our certificate of incorporation provides that we must indemnify our
directors, officers and certain other individuals to the full extent permitted
by the Delaware General Corporation Law or other applicable laws. We are
permitted to enter into agreements with any such person to provide
indemnification greater or different than that provided in our certificate of
incorporation or Delaware law.
Our certificate of incorporation limits the personal liability of our
directors to us or our shareholders to the full extent permitted by Delaware
law, which currently permits directors to be protected from monetary damages
for breach of their fiduciary duty of care. This limitation has no effect on
claims arising under the federal securities laws.
Any Underwriting Agreements to be filed or incorporated by reference with
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<PAGE>32
this registration statement may contain reciprocal agreements of indemnity
between us and the underwriters as to certain liabilities, including
liabilities under the Securities Act of 1933, and may provide for
indemnification of our directors and officers in certain circumstances.
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.
Our certificate of incorporation provides that we shall indemnify, to the
full extent permitted by Delaware law or any other applicable law, each of our
current and former directors, officers, employees and certain agents, and each
person who, at the request of the board of directors or an officer, serves or
served as a director, officer, employee or agent of another corporation,
partnership, joint venture or other enterprise. Significant payments by us in
settlement of a claim or in satisfaction of a judgment against any of our
officers, directors or other indemnified individuals, as required by these
provisions and if permitted by Delaware law, could materially reduce our
assets.
We are not aware of any threatened litigation or proceeding which may
result in a claim for indemnification, and there is no pending litigation or
proceeding involving any of our directors or officers in which indemnification
would be required or permitted by our certificate of incorporation or Delaware
law.
Elimination of Liability in Certain Circumstances
Our certificate of incorporation protects our directors against monetary
damages for breach of the duty of care to the full extent permitted by
Delaware law. These provisions do not eliminate the directors' duty of care.
Under these provisions, neither we nor our shareholders may assert a claim for
money damages against a director for certain breaches of fiduciary duty,
including claims in connection with possible takeover proposals. In
appropriate circumstances, equitable remedies such as an injunction or other
forms of non-monetary relief are available under Delaware law. These
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<PAGE>33
provisions also do not affect the directors' responsibilities under any other
laws, such as the federal securities laws and state and federal environmental
laws. These provisions apply to our officers only if they are directors and
are acting in their capacity as directors, and do not apply to officers who
are not directors.
Directors will remain subject to liability for the following:
- breach of a director's duty of loyalty to us and our stockholders;
- acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
- transactions from which a director derives improper personal benefit;
and
- unlawful dividends or unlawful stock repurchases or redemptions.
Item 16. Exhibits.
(a) Exhibits
Incorporated
by Reference from
the Following
Exhibit No. Description Documents:
----------- ------------------------------ -----------------
1.1 Underwriting Agreement (Common To be filed by
Stock, Preferred Stock and/or amendment or
Warrants) subsequently
incorporated by
reference
1.2 Underwriting Agreement(Debt To be filed by
Securities) amendment or
subsequently
incorporated by
reference
4.1 Certificate of Incorporation Exhibits 3.1,
and Bylaws 3.2 and 3.3 of
the Form S-4,
Registration No.
333-24141, filed
March 28,1997
4.2 Specimen Certificate for the Exhibit 4.2 of
Company's Common Stock, $0.01 the Form S-1
par value Registration
No. 333-31139,
filed July 11,
1997
33
<PAGE>34
4.3 Indenture dated as of July 8, Exhibit 4.3 of
1998, among the Company as the Form S-4,
Issuer and State Street Bank Registration No.
and Trust Company as Trustee, 333-59415, filed
including a Form of the July 20, 1998
Company's 8-3/4% Senior Notes
due 2008
5.1 Opinion of Griggs & Harrison Filed herewith
P.C. as to the legality of the
securities
12.1 Computation of ratio of earnings Filed herewith
to fixed charges
23.1 Consent of Griggs & Harrison,P.C. Included in
Exhibit 5.1
filed herewith
23.2 Consent of Arthur Andersen LLP Filed herewith
24.1 Powers of Attorney Included on
Pages II-6
and II-7
25.1 Statement of Eligibility of Filed herewith
Trustee on Form T-1 with respect
to Debt Securities
(b) Financial Statement Schedules
The following financial statement schedules are included in Part II of
the Registration Statement:
None
All other schedules are omitted because they are inapplicable or the
requested information is shown in the financial statements or noted therein.
Item 17. Undertakings.
(a) 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:
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<PAGE> 35
(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 this 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 this
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 Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration statement
or any material change to such information in this registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)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 the Securities and
Exchange Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or 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.
(c) 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,
the 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
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<PAGE>36
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.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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<PAGE>37
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant 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
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Houston, State of Texas, on August
28, 2000.
GULFMARK OFFSHORE, INC.
By: /s/ Edward A. Guthrie
---------------------------------
Edward A. Guthrie
Executive Vice President, Finance
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Edward A. Guthrie his true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments, exhibits thereto and other documents in connection therewith) to
this Registration Statement and any subsequent registration statement filed by
the registrant pursuant to Rule 462(b) of the Securities Act) which relates to
this Registration Statement, and to file the same and all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange
Commission, granting said attorney-in-fact and agent, full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<PAGE>38
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Bruce A. Streeter
------------------------
Bruce A. Streeter President and Director August 28, 2000
(Principal Executive Officer)
/s/ Edward A. Guthrie
------------------------
Edward A. Guthrie Executive Vice President August 28, 2000
(Principal Financial Officer)
/s/ Kevin D. Mitchell
------------------------
Kevin D. Mitchell Controller August 28, 2000
(Principal Accounting Officer)
/s/ David J. Butters
------------------------
David J. Butters Director August 28, 2000
/s/ Norman G. Cohen
------------------------
Norman G. Cohen Director August 28, 2000
/s/ Marhsall A. Crowe
------------------------
Marshall A. Crowe Director August 28, 2000
/s/ Louis S. Gimbel, 3rd
------------------------
Louis S. Gimbel, 3rd Director August 28, 2000
/s/ Robert B. Millard
------------------------
Robert B. Millard Director August 28, 2000
</TABLE>
38
<PAGE>39
EXHIBIT INDEX
Incorporated
by Reference from
the Following
Exhibit No. Description Documents:
----------- ------------------------------ -----------------
1.1 Underwriting Agreement (Common To be filed by
Stock, Preferred Stock and/or amendment or
Warrants) subsequently
incorporated by
reference
1.2 Underwriting Agreement(Debt To be filed by
Securities) amendment or
subsequently
incorporated by
reference
4.1 Certificate of Incorporation Exhibits 3.1,
and Bylaws 3.2 and 3.3 of
the Form S-4,
Registration No.
333-24141, filed
March 28,1997
4.2 Specimen Certificate for the Exhibit 4.2 of
Company's Common Stock, $0.01 the Form S-1
par value Registration
No. 333-31139,
filed July 11,
1997
4.3 Indenture dated as of July 8, Exhibit 4.3 of
1998, among the Company as the Form S-4,
Issuer and State Street Bank Registration No.
and Trust Company as Trustee, 333-59415, filed
including a Form of the July 20, 1998
Company's 8-3/4% Senior Notes
due 2008
5.1 Opinion of Griggs & Harrison Filed herewith
P.C. as to the legality of the
securities
12.1 Computation of ratio of earnings Filed herewith
to fixed charges
39
<PAGE>40
23.1 Consent of Griggs & Harrison,P.C. Included in
Exhibit 5.1
filed herewith
23.2 Consent of Arthur Andersen LLP Filed herewith
24.1 Powers of Attorney Included on
Pages II-6
and II-7
25.1 Statement of Eligibility of Filed herewith
Trustee on Form T-1 with respect
to Debt Securities
40
