NON-COMPETITION AND
NON-SOLICITATION AGREEMENT
This
NON-COMPETITION AND NON-SOLICITATION AGREEMENT (this “
Agreement ”) is entered into as of July 1, 2008
(the “ Effective Date ”), by and between
Gulfmark Offshore, Inc., a Delaware corporation (“
Buyer ”), and Larry T. Rigdon (“ Rigdon
”).
WHEREAS, Buyer has
entered into that certain Membership Interest and Stock Purchase
Agreement dated as of May 28, 2008 (the “ Purchase
Agreement ”), with Rigdon Marine Holding LLC (“
RMH ”) and Rigdon Marine Corporation (“
RMC ;” RMH and RMC each a “ Company
” and collectively, the Companies ”), all the
members of RMH (the “ Members ”) and Sherwood
Investment L.L.C., John J. Tennant III Irrevocable Trust, Brian M.
Bowman Irrevocable Trust and Bourbon Offshore (f/k/a Bourbon
Offshore Holdings, SAS), as shareholders of RMC (with the Members
collectively, “ Sellers ”);
WHEREAS, pursuant
to the Purchase Agreement, Sellers have agreed to sell, and Buyer
has agreed to buy, all of the membership interests in RMH and all
of the shares of Common Stock in RMC not owned by RMH;
WHEREAS, Rigdon
has been extensively involved in the management and operation of
the Companies and their respective business operations and,
directly or indirectly, owns a substantial equity interest in the
Companies;
WHEREAS, Rigdon,
as a result of his equity interest in the Companies, will receive
substantial consideration as of the closing of the transactions
contemplated by the Purchase Agreement (the “ Closing
”);
WHEREAS, Buyer, as
a condition to the Closing, requires that Rigdon execute and
deliver this Agreement; and
WHEREAS, Rigdon,
for the consideration of the execution and delivery of the Purchase
Agreement and the consideration to be received by Rigdon in
connection with the transactions contemplated thereby, has agreed
to, and does hereby, enter into this Agreement on the terms and
conditions set forth below;
NOW, THEREFORE,
the parties hereto, intending to be legally bound, hereby agree as
follows:
Definitions . For purposes of this Agreement, (a) the
capitalized terms set forth below shall have the respective
meanings specified below, and (b) other capitalized terms used
but not otherwise defined herein shall have the respective meanings
assigned to such terms in the Purchase Agreement.
“
Affiliate ” means any Person who is an
“affiliate” as defined in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as amended.
“
Business ” means the construction, ownership and/or
operation of Offshore Support Vessels to be used for transportation
of materials and supplies to and from offshore platforms and
drilling rigs.
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“
Business Day ” means any day other than a Saturday,
Sunday or other day on which commercial banks in the State of Texas
are authorized or required by law or executive order to
close.
“
Effective ” means when the Purchase Price is delivered
and received at Closing by the Seller Representative under the
Purchase Agreement.
“
Offshore Support Vessels ” means offshore platform
supply vessels, offshore supply vessels and offshore
crewboats.
“
Person ” means any individual, firm, corporation,
partnership, trust, incorporated or unincorporated association,
joint venture, joint stock company, limited liability company,
Governmental Authority or other entity of any kind, and shall
include any successor (by merger or otherwise) of such
entity.
“
Restriction Period ” means the period commencing when
this Agreement becomes Effective and ending two (2) years
thereafter.
“
Territory ” means the United States Gulf of Mexico and
Trinidad and Tabago.
Restrictive
Covenants . During the Restriction Period, Rigdon shall not,
directly or indirectly, on his own behalf or as a shareholder,
owner, principal, member, partner, joint venturer, individual
proprietor, employer, director, trustee, manager, officer,
employee, consultant, independent contractor, agent, sales
representative, investor or lender, or in any other individual,
representative or other capacity (each an “ Other
Capacity ”) (other than through passive investments in
securities constituting not more than one percent (1%) of the
outstanding securities of any class of publicly-traded securities
registered on any national securities exchange or market other than
securities of Buyer):
construct, own or
operate any Offshore Support Vessels, or provide goods, services,
financing or other assistance to, any business that provides
services similar to those provided by the Business anywhere in the
Territory;
solicit, induce or
influence, or attempt to solicit, induce or influence, any Person
to purchase or obtain any services of a type rendered by the
Business from any Person in the Territory other than one of the
Companies;
solicit, induce or
influence, or attempt to solicit, induce or influence, any
customer, government agency, supplier, distributor, independent
contractor, agent or other Person to terminate or otherwise alter
its contractual or business relationship with any of the Companies,
Buyer or any of their Affiliates; or
solicit, entice,
induce, suggest or request that any employee of any of the
Companies, Buyer or any of their Affiliates (whether employed
directly or indirectly, including through an employee leasing
arrangement) terminate such employee’s relationship with such
Company, Buyer or such Affiliate, as applicable.
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Nondisparagement . Rigdon agrees that he shall not make or
publish any statement, written or oral, disparaging the reputation
of any of the Companies, Buyer, any of their Affiliates or any of
their respective directors, officers, employees, agents or
representatives; provided that the foregoing shall not limit in any
way the enforcement by Rigdon of any legal rights or claims against
Buyer under this Agreement or the Purchase Agreement.
Independence
of Obligations . The covenants of Rigdon set forth in this
Agreement shall be construed as separate agreements independent of
any other agreement or arrangement between Rigdon, on the one hand,
and Buyer, on the other. The existence of any claim or cause of
action by Rigdon against Buyer, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the
enforcement of any of the covenants contained in this Agreement
against Rigdon.
Reasonableness; Reformation . Rigdon acknowledges that, by
virtue of his association with the Companies, he has developed
considerable expertise in the operations of the Business. Rigdon
recognizes that Buyer and the Companies would be irreparably
damaged, and Buyer’s substantial investment in the Companies
and their Business would be materially impaired, if Rigdon were to
engage in any activity in violation of the terms of this Agreement.
Accordingly, Rigdon expressly acknowledges that (a) he is
voluntarily entering into this Agreement; (b) this Agreement
is ancillary to the Purchase Agreement and Buyer would not have
executed the Purchase Agreement and agreed to consummate the
transactions contemplated thereby without Rigdon’s execution
and delivery of this Agreement; (c) the provisions of this
Agreement contain reasonable limitations as to time, geographical
area and scope of activities to be restrained, and such limitations
and the other provisions of this Agreement have been specifically
negotiated by sophisticated commercial parties with the
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