UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 15, 2018
GULFMARK OFFSHORE, INC.
(N/K/A GORGON NEWCO, LLC)
(Exact name of registrant as specified in its charter)
| Delaware | 001-33607 | 76-0526032 | ||
| (State of incorporation) | (Commission File Number) |
(IRS Employer Identification No.) |
| 842 West Sam Houston Parkway North, Suite 400 Houston, Texas |
77024 | |
| (Address of principal executive offices) | (Zip Code) |
(713) 470-5300
(Registrant’s telephone number, including area code)
GulfMark Offshore, Inc.
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Introductory Note
On November 15, 2018, GulfMark Offshore, Inc. (the “Company” or “GulfMark”) (n/k/a Gorgon NewCo, LLC) completed its previously-announced business combination (the “Business Combination”) with Tidewater Inc. (“Tidewater”), and took various other related actions, as discussed further below in this Current Report on Form 8-K (“Current Report”).
| Item 1.01 | Entry into a Material Definitive Agreement. |
The information set forth under Item 2.01 regarding the GLF Warrants and the GLF Warrant Agreements is incorporated by reference into this Item 1.01.
| Item 1.02 | Termination of a Material Definitive Agreement. |
In connection with the completion of the Business Combination on November 15, 2018, GulfMark terminated the Credit Facility Agreement, dated November 14, 2017, by and among GulfMark Rederi AS, DNB Bank ASA, New York Branch, as agent, DNB Capital LLC as revolving lender and as swingline lender, and certain funds managed by Hayfin Capital Management LLP as term lenders, which provided for two credit facilities: a senior secured revolving credit facility (the “Revolving Credit Facility”) and a senior secured term loan facility (the “Term Loan Facility”, and together with the Revolving Credit Facility, the “Facilities”). The Revolving Credit Facility provided for loans of up to $25,000,000, including a $12,500,000 swingline loan subfacility and a $5,000,000 letter of credit subfacility. At the time of termination, the Revolving Credit Facility was undrawn and all letters of credit issued thereunder had been cancelled. The Term Loan Facility provided a $100,000,000 term loan, which was funded in full, and was repaid at termination.
Prepayment and/or termination of the Revolving Credit Facility was not restricted in any material respect, but prepayment of the Term Loan Facility was subject to certain prepayment premiums. Prepayment of the Term Loan Facility prior to November 14, 2019, must be accompanied by accrued unpaid interest and a make whole premium that is at least equal to (and could be greater than) the then present value of interest otherwise payable from the prepayment date through such date. Mandatory prepayments are also subject to the foregoing premiums generally and are required under a number of circumstances, including a change of control (with respect to the Company and certain subsidiaries thereof).
| Item 2.01 | Completion of Acquisition or Disposition of Assets. |
On November 15, 2018, pursuant to the terms and conditions of the previously-announced Agreement and Plan of Merger (the “Merger Agreement”), dated July 15, 2018, between Tidewater and GulfMark, the Business Combination was completed. The Business Combination was effected through a two-step reverse merger, pursuant to which (i) Gorgon Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of Tidewater, merged with and into GulfMark, with GulfMark continuing as the surviving corporation and a wholly-owned subsidiary of Tidewater (the “First Merger”) and then, immediately afterwards, (ii) GulfMark merged with and into Gorgon NewCo, LLC, a Delaware limited liability company and wholly-owned subsidiary of Tidewater (“Gorgon”), with Gorgon continuing as the surviving entity and a direct, wholly-owned subsidiary of Tidewater.
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As previously disclosed and pursuant to the terms and conditions of the Merger Agreement, upon the effective time of the First Merger (the “Closing”):
| • | each issued and then-outstanding share of GulfMark common stock, $0.01 par value per share (“GLF Common Stock”), was automatically converted into the right to receive 1.100 shares of Tidewater common stock, par value $0.001 per share (the “TDW Common Stock”), with cash paid in lieu of any fractional share; and |
| • | each then-outstanding GulfMark warrant (collectively, the “GLF Warrants”) was automatically converted into the right to receive 1.100 shares of TDW Common Stock upon payment to Tidewater of the applicable exercise price, subject to (i) all other terms and conditions of the applicable GLF Warrant Agreement (as defined below), including cash paid in lieu of any fractional share, and (ii) the limitations on foreign ownership set forth in Tidewater’s amended and restated certificate of incorporation (the “Tidewater charter”) intended to comply with the Jones Act (as defined below). |
There are two series of GLF Warrants: (i) GLF Jones Act Warrants, which may be exercised at any time until November 14, 2042 for an exercise price of $0.01 per share, and (ii) GLF Equity Warrants, which may be exercised at any time until November 14, 2024 for an exercise price of $100.00 per share.
Each series of GLF Warrants is subject to a warrant agreement with substantially the same terms and conditions that applied to such warrant prior to the Closing, as assumed and amended by Tidewater effective upon the Closing (the “GLF Jones Act Warrant Agreement” and the “GLF Equity Warrant Agreement” and, collectively, the “GLF Warrant Agreements”). Although the GLF Warrants are immediately exercisable, the exercise of any GLF Warrants is subject to, among other things, the limitations on foreign ownership as set forth in the Tidewater charter that are intended to comply with the Merchant Marine Act of 1920 and the Shipping Act, 1916, as amended, and the rules and regulations promulgated thereunder (collectively, the “Jones Act”).
In addition, at the Closing, each GulfMark restricted stock unit that was outstanding and unvested immediately prior to the Closing (the “GLF RSUs”) was automatically converted into an award representing the right to receive 1.100 shares of Tidewater Common Stock, rounded down to the nearest whole number with cash paid in lieu of any fractional share, subject to vesting and the other terms and conditions applicable to such award immediately prior to the Closing. As described in greater detail under Item 5.02(e), Tidewater also assumed the shares remaining available for issuance under the legacy GulfMark Management Incentive Plan under which these GLF RSUs were granted.
Accordingly, as a result of the Business Combination, Tidewater (i) expects to deliver to GulfMark’s stockholders an approximate aggregate total of 8,464,290 shares of Tidewater Common Stock in exchange for shares of GulfMark Common Stock that were outstanding immediately prior to the Closing (including 39,850 shares issued in settlement of vested GulfMark restricted stock units); (ii) has reserved for issuance a maximum of 3,434,934 shares of Tidewater Common Stock for issuance upon the exercise of GLF Warrants (2,573,624 shares issuable upon the exercise of GLF Jones Act Warrants and 861,310 shares issuable upon the exercise of GLF Equity Warrants); and (iii) has reserved for issuance a maximum of 88,479 shares for issuance pursuant to the GLF RSUs.
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The above-described shares of Tidewater Common Stock issued or reserved for issuance in connection with the Business Combination were registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to a registration statement on Form S-4 (File No. 333-227111) filed with the U.S. Securities and Exchange Commission (the “Commission”), and declared effective on October 16, 2018. The joint proxy statement/prospectus of Tidewater and GulfMark included in the registration statement on Form S-4, including the information incorporated by reference therein, (the “Joint Proxy Statement/Prospectus”), contains additional information about the above-described transactions. Because the shares of Tidewater Common Stock are issuable from time to time in the future upon the exercise of the GLF Warrants, these shares were also registered under the Securities Act pursuant to a registration statement on Form S-1 (File No. 33-228029) filed with the Commission and declared effective on November 15, 2018.
The foregoing descriptions of the Closing, the Merger Agreement, the Business Combination, the GLF Warrants, and the GLF Warrant Agreements do not purport to be complete and are qualified in their entirety, as applicable, by reference to (i) the other items of this Current Report, (ii) the Joint Proxy Statement/Prospectus, and (iii) the following documents, each of which is incorporated by reference into this Current Report: (a) the full text of the Merger Agreement, which is filed as Exhibit 2.1 to this Current Report, (b) the full text of the GLF Jones Act Warrant Agreement, which includes the original warrant agreement and the Assignment, Assumption and Amendment Agreement executed in connection with the Closing, which are filed as Exhibits 4.1 and 4.2, respectively, to this Current Report, and (c) the full text of the GLF Equity Warrant Agreement, which includes the original warrant agreement and the Assignment, Assumption and Amendment Agreement executed in connection with the Closing, which are filed herewith as Exhibits 4.3 and 4.4, respectively, to this Current Report.
| Item 3.01 | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
As a result of the transactions described in Item 2.01 of this Current Report on Form 8-K, the Company requested that the shares of GLF Common Stock, which traded under the symbol “GLF,” cease to be traded on the NYSE as of 5:00 PM Eastern Standard Time on November 15, 2017, and be delisted from the NYSE. Accordingly, the NYSE filed with the Commission a Form 25 Notification of Removal from Listing and/or Registration under Section 12(b) (the “Form 25”) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to delist and deregister the GLF Common Stock. The delisting of the GLF Common Stock from the NYSE will be effective 10 days after the filing of the Form 25. The Company intends to file with the Commission a Form 15 under the Exchange Act relating to the GLF Common Stock.
The information set forth in Item 2.01 of this Current Report on Form 8-K is incorporated by reference herein.
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| Item 3.03 | Material Modification to Rights of Security Holders. |
As a result of the First Merger, each issued and outstanding share of GLF Common Stock was cancelled and each holder of GLF Common Stock ceased to have any rights as a stockholder of the Company other than the right to receive the merger consideration as set forth in the Merger Agreement.
The information set forth in Item 2.01, Item 3.01 and Item 5.01 of this Current Report on Form 8-K is incorporated by reference herein.
| Item 5.01 | Changes in Control of Registrant. |
Pursuant to the terms of the Merger Agreement, at the Closing of the Business Combination, the Company became an indirect wholly owned subsidiary of Tidewater and, accordingly, a change in control of the Company occurred.
The information set forth in Item 2.01, Item 3.01 and Item 5.02 of this Current Report on Form 8-K is incorporated by reference herein.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
At the Closing of the Business Combination, John T. Rynd, Quinn P. Fanning, and Bruce D. Lundstrom were appointed to the board of managers of Gorgon NewCo, LLC. All of the previous officers and directors of the Company ceased to serve as the officers and directors of the Company at the Closing of the Business Combination.
In connection with the Closing of the Business Combination, the following individuals were appointed to the following positions with Gorgon:
| President | John T. Rynd | |||
| Vice President and Treasurer | Quinn P. Fanning | |||
| Vice President and Secretary | Bruce D. Lundstrom | |||
For additional information about these officers, please see (i) the proxy statements of Tidewater filed with the Commission on March 22, 2018, and (ii) Tidewater’s Current Report on Form 8-K filed with the Commission on November 16, 2018.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
Pursuant to the terms of the Merger Agreement, at the Closing of the Business Combination, the certificate of formation and the limited liability company agreement of Gorgon NewCo, LLC, attached as Exhibit 3.1 and Exhibit 3.2, respectively, to this Current Report on Form 8-K and incorporated herein by reference, became the certificate of formation and limited liability company agreement of the surviving entity, which is named Gorgon NewCo, LLC.
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| Item 5.07 | Submission of Matters to a Vote of Security Holders. |
On November 15, 2018, GulfMark held a special meeting of the stockholders (the “Special Meeting”). As of October 12, 2018, the record date for the Special Meeting, there were approximately 7,651,953 shares of GulfMark Common Stock outstanding. Of that number, 6,774,283 shares were represented in person or by proxy at the Special Meeting. The following proposal was presented at the Special Meeting:
| Proposal 1: | Approval of the GulfMark merger proposal. |
The stockholders approved the GulfMark merger proposal as follows:
| Votes For |
Votes Against | Abstentions | Broker Non-Votes | |||||||||
| 6,754,342 |
15,845 | 4,096 | — | |||||||||
| Proposal 2: | Approval of the GulfMark compensation proposal. |
The stockholders approved the GulfMark compensation proposal as follows:
| Votes For |
Votes Against | Abstentions | Broker Non-Votes | |||||||||
| 6,513,160 |
215,417 | 45,706 | — | |||||||||
| Proposal 3: | Approval of the GulfMark adjournment proposal. |
A vote was not taken at the meeting on the GulfMark adjournment proposal.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
The following exhibits are filed herewith:
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| * | Filed with the Current Report. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| GORGON NEWCO, LLC | ||
| By: | /s/ Bruce D. Lundstrom | |
| Bruce D. Lundstrom | ||
| Vice President and Secretary | ||
Date: November 16, 2018
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Exhibit 3.1
CERTIFICATE OF FORMATION
OF
GORGON NEWCO, LLC
This Certificate of Formation of Gorgon NewCo, LLC (the “Company”), dated as of November 9, 2018, has been duly executed and is being filed by Brian Lee, as an authorized person, to form a limited liability company under the Delaware Limited Liability Company Act (6 Del. C. § 18-101, et. seq.).
FIRST: The name of the Company is Gorgon NewCo, LLC.
SECOND: The registered office of the Company in the State of Delaware is located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, New Castle County. The name of the registered agent of the Company at such address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation in accordance with the Delaware Limited Liability Company Act.
| By: | /s/ Brian Lee | |
| Brian Lee | ||
| Authorized Person | ||
Exhibit 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
GORGON NEWCO, LLC
This Limited Liability Company Agreement (this “Agreement”) of Gorgon NewCo, LLC is entered into this 9 day of November, 2018 by Tidewater Inc., as its sole member (the “Member”) pursuant to and in accordance with the Delaware Limited Liability Company Act (6 Del.C. § 18-101, et seq.), as amended from time to time (the “Act”).
1. Name. The name of the limited liability company governed hereby is Gorgon NewCo, LLC (the “Company”).
2. Certificates. Brian Lee, as an authorized person within the meaning of the Act, has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware. The Member shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business.
3. Purpose. The Company is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the Company is, engaging in all lawful activities for which limited liability companies may be formed under the Act.
4. Powers. The Company shall have the power to do any and all acts reasonably necessary, appropriate, proper, advisable, incidental or convenient to or for the furtherance of the purpose and business described herein and for the protection and benefit of the Company, and shall have, without limitation, any and all of the powers that may be exercised on behalf of the Company by the Member pursuant to this Agreement, including Section 15.
5. Principal Business Office. The principal place of business and office of the Company shall be located, and the Company’s business shall be conducted from, such place or places as may hereafter be determined by the Member.
6. Registered Office. The address of the registered office of the Company in the State of Delaware is c/o Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, New Castle County.
7. Registered Agent. The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware are Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, New Castle County.
8. Name and Mailing Address of the Member. The name and the mailing address of the Member are as follows:
| Name |
Address | |
| Tidewater Inc. | Tidewater Inc. 6002 Rogerdale Road Suite # 600 Houston, Texas 77072 Attention: Bruce D. Lundstrom |
9. Term. The term of the Company commenced on the date of filing of the Certificate of Formation of the Company in accordance with the Act and shall continue until dissolution of the Company in accordance with Section 23 of this Agreement.
10. Limited Liability. Except as otherwise provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and none of the Member, any Officer (as hereinafter defined), employee or agent of the Company (including a person having more than one such capacity) shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of acting in such capacity.
11. Capital Contributions. The Member is deemed admitted as a Member of the Company upon its execution and delivery of this Agreement. The initial contribution of the Member consists of the assets set forth on Schedule A attached hereto. The total capital of the Member in the Company from time to time shall be referred to as the Member’s “Capital.”
12. Additional Contributions. The Member is not required to make additional capital contributions to the Company.
13. Distributions. Distributions shall be made to the Member at such times and in such amounts as may be determined in the sole discretion of the Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or other applicable law.
14. Tax Treatment. For any tax period during which the Company has only one regarded member, it is the intention of the Member that the Company be treated, wherever permitted, as an entity disregarded as separate from the Member for United States federal, state and local income tax purposes.
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15. Management.
a. The business and affairs of the Company shall be managed by a Board of Managers (the “Board,” and such managers, the “Managers”). The Board shall consist of the number of Managers as determined by the Member from time to time. The Managers shall be appointed by the Member and the Member may remove any or all of the Managers from time to time with or without cause. Subject to the express limitations contained in any provision of this Agreement, the Board shall have complete and absolute control of the affairs and business of the Company, and shall possess all powers necessary, convenient or appropriate to carrying out the purposes and business of the Company, including, without limitation, doing all things and taking all actions necessary to carrying out the terms and provisions of this Agreement; provided, however, that no individual Manager shall have the authority or right to act for or bind the Company without the requisite consent of the Board. The decisions of the Board shall require an affirmative vote of the majority of the Managers then constituting the Board.
b. Each Manager shall hold his or her position until the earliest to occur of his or her death, disability, resignation, removal or other inability to act in such capacity, at which time the Member shall appoint a replacement Manager.
c. The Managers may be compensated for their services to the Company, as determined by the Member in its sole discretion.
d. Any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if all the Managers consent thereto in writing.
16. Officers. The Board may, from time to time as it deems advisable, appoint officers of the Company (the “Officers”) and assign in writing titles (including, without limitation, President, Vice President, Secretary and Treasurer) to any such person. Unless the Board decides otherwise, if the title is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law, the assignment of such title shall constitute the delegation to such person of the authorities and duties that are normally associated with that office. [Brian Lee] is hereby designated as an “Authorized Person” for purposes of executing, delivering and filing the Certificate of Formation (and any amendments thereto) of the Company on behalf of the Company. Any delegation pursuant to this Section 16 may be revoked at any time by the Board.
17. Other Business. The Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.
18. Right to Indemnity. Except as otherwise provided in that certain Chapter 11 Plan of Reorganization filed by GulfMark Offshore, Inc., the Company’s predecessor, on May 17, 2017 in connection with Case No. 17-11125, which was confirmed on October 4, 2017 by order of the United States Bankruptcy Court for the District of Delaware (the “Plan”), each person who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether
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civil, criminal, administrative, investigative or otherwise (hereinafter, a “proceeding”), by reason of the fact that such person, or a person of whom such person is the legal representative, is or was or has agreed to become a Member, Manager, Officer or director of the Company, or while a Member, Manager, Officer or director of the Company (or its predecessor) is or was serving or has agreed to serve at the request of the Company in any capacity, including as a member, manager, officer, director, employee, fiduciary or agent, of another corporation or of a partnership, joint venture, trust or other enterprise, including, without limitation, service with respect to employee benefit plans maintained or sponsored by the Company or any of its subsidiaries (an “Indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a member, manager, officer, director, employee, fiduciary or agent or in any other capacity while serving as a member, manager, officer, director, employee, fiduciary or agent, shall be indemnified and held harmless by the Company to the fullest extent which it is empowered to do so by applicable law, as the same exists or may hereafter be amended (but, in the case of any such amendment, to the fullest extent permitted by law, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment) against all cost, expense, liability and loss (including, without limitation, attorneys’ fees, judgments, fines, excise taxes or penalties and amounts paid or to be paid in settlement) actually and reasonably incurred by such Indemnitee in connection with a proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that such person’s conduct was unlawful. The termination of any claim, action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that such person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful. Such indemnification shall continue as to a person who has ceased to serve in the capacity which initially entitled such person to indemnity hereunder, and such indemnification shall inure to the benefit of such person’s heirs, executors and administrators. Notwithstanding the foregoing, except as provided in Section 20 of this Agreement with respect to proceedings to enforce rights to indemnification, the Company shall indemnify any Indemnitee seeking indemnification in connection with a proceeding initiated by such person only if such proceeding (or part thereof) was authorized by the Board.
19. Advancement of Expenses. To the fullest extent to which it is permitted to do so by applicable law, the Company shall, in advance of the final disposition of the matter, pay the expenses and costs (including attorneys’ fees) actually and reasonably incurred by any Indemnitee in defending or otherwise participating in any proceeding and any appeal therefrom for which such person may be entitled to such indemnification under Section 18 of this Agreement or otherwise; provided, however, that such payment of expenses and costs in advance of the final disposition of the proceeding shall be made only upon receipt by the Company of an undertaking by or on behalf of such Indemnitee to repay all amounts advanced if it should be ultimately determined by final judicial decision from which there is no further right to appeal that such Indemnitee is not entitled to be indemnified for such expenses under Section 18 of this Agreement or otherwise. Expenses incurred by other employees, fiduciaries and agents who are considered Indemnitees hereunder may be so paid upon such terms and conditions, if any, as the Board deem appropriate.
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20. Procedures for Indemnification of Indemnitees. Any indemnification or advancement of expenses under Section 18 of this Agreement shall be made promptly, and in any event within thirty (30) days, upon the written request of the Indemnitee, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty (20) days. If a determination by the Company that the Indemnitee is entitled to indemnification pursuant to Section 18 of this Agreement is required, and the Company fails to respond within sixty (60) days to a written request for indemnity, the Company shall be deemed to have approved the request. If the Company denies a written request for indemnification or advancement of expenses, in whole or in part, or if payment in full pursuant to such request is not made within thirty (30) days (or twenty (20) days in the case of a claim for advancement of expenses), the right to indemnification or advancement of expenses as granted by Section 18 of this Agreement shall be enforceable by the Indemnitee in any court of competent jurisdiction. Such Indemnitee’s costs and expenses incurred in connection with successfully establishing the right to indemnification, in whole or in part, in any such action or in a suit brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, shall also be indemnified by the Company. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the Company) that the Indemnitee has not met the standards of conduct which make it permissible under the DGCL for the Company to indemnify the Indemnitee for the amount claimed, but the burden of such defense shall be on the Company. Neither the failure of the Company (including its Board or its independent legal counsel) to have made a determination prior to the commencement of such action that indemnification of the Indemnitee is proper in the circumstances because he or she has met the applicable standard of conduct pursuant to applicable law nor an actual determination by the Company (including its Board or its independent legal counsel) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such advancement of expenses, under Section 18 of this Agreement or otherwise, shall be on the Company.
21. Admission of Additional Members. One (1) or more additional members of the Company may be admitted to the Company from time to time with the prior written consent of the Member.
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22. Assignments. The Member may transfer, assign, pledge or hypothecate, in whole or in part, its limited liability company interest in the Company, as determined in its sole discretion.
23. Dissolution.
a. The Company shall dissolve, and its affairs shall be wound up upon the first to occur of the following: (i) the written consent of the Member, or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act.
b. In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner).
24. Elections. The Board shall determine the accounting methods and conventions under the tax laws of any and all applicable jurisdictions as to the treatment of income, gain, loss, deduction and credit of the Company or any other method or procedure related to the preparation of such tax returns. The Member may cause the Company to make or refrain from making any and all elections permitted by such tax laws, and the Member shall not be liable for any consequences to any previously admitted or subsequently admitted Members resulting from their making or failing to make any such elections.
25. Separability of Provisions. Each provision of this Agreement shall be considered separable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.
26. Entire Agreement. This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof.
27. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware (without regard to conflict of laws principles thereof), and all rights and remedies shall be governed by such laws.
28. Amendments. This Agreement may not be modified, altered, supplemented or amended except pursuant to a written agreement executed and delivered by the Member.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned, being the Member of the Company and intending to be legally bound hereby, has duly executed this Agreement as of the date first written above.
| TIDEWATER INC. | ||
| By: | /s/ Bruce D. Lundstrom | |
| Name: | Bruce D. Lundstrom | |
| Title: | Executive Vice President, General Counsel and Secretary | |
[SIGNATURE PAGE TO LLC AGREEMENT OF GORGON NEWCO, LLC]
Schedule A
| Name |
Capital Contribution | |
| Tidewater Inc. |
$100 |
Exhibit 4.2
ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT
Jones Act Warrants
This Assignment, Assumption and Amendment Agreement (this “Agreement”) is made and entered into as of November 15, 2018, by and among GulfMark Offshore, Inc., a Delaware Corporation (“GulfMark”), Tidewater, Inc., a Delaware Corporation (“Tidewater”), and American Stock Transfer & Trust Company, LLC (the “Warrant Agent”) and shall become effective upon the First Merger Effective Time (as defined below) (the “Effective Time”). Capitalized terms used but not defined in this Agreement have the respective meanings ascribed to such terms in the Warrant Agreement (as defined below).
WHEREAS, GulfMark is party to that certain Warrant Agreement (the “Warrant Agreement”), dated as of November 14, 2017, between GulfMark and the Warrant Agent;
WHEREAS, on July 15, 2018, GulfMark and Tidewater entered into that certain Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which a newly formed wholly-owned subsidiary corporation of Tidewater will merge with and into GulfMark, with GulfMark continuing as the surviving corporation and a wholly-owned subsidiary of Tidewater (the “First Merger”), and immediately thereafter, Tidewater will cause GulfMark to merge with and into a newly formed wholly-owned subsidiary limited liability company of Tidewater (“NewCo”), with NewCo continuing as the surviving company and a wholly-owned subsidiary of Tidewater;
WHEREAS, pursuant and subject to the terms and conditions of the Merger Agreement, at the effective time of the First Merger (the “First Merger Effective Time”), and in accordance with the terms of the Warrant Agreement, each Warrant that is outstanding immediately prior to the First Merger Effective Time will cease to represent a right to acquire shares of GulfMark Common Stock and will represent a right to acquire common stock, $0.001 par value per share, of Tidewater (“Tidewater Common Stock”), on substantially the same terms and conditions as applied to such Warrant immediately prior to the First Merger Effective Time (including the same strike price), except that the number of shares of Tidewater Common Stock subject to each Warrant shall be determined by multiplying: (A) the number of shares of GulfMark Common Stock that were subject to such Warrant immediately prior to the First Merger Effective Time; by (B) 1.100, subject to rounding down to the nearest whole number of shares of Tidewater Common Stock as provided in the Merger Agreement; and
WHEREAS, in connection with the transactions contemplated by the Merger Agreement, GulfMark desires to assign, grant, convey and transfer to Tidewater all of GulfMark’s right and interest in the Warrant Agreement and Tidewater desires to accept such assignment and assume all of GulfMark’s duties and responsibilities under the Warrant Agreement (the “Assignment and Assumption”);
NOW, THEREFORE, in consideration of the foregoing and the agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption of Warrant Agreement. GulfMark hereby assigns, grants, conveys and transfers to Tidewater all of GulfMark’s right and interest in the Warrant
1
Agreement and Tidewater hereby accepts such assignment and agrees to assume all of GulfMark’s duties and responsibilities under the Warrant Agreement effective as of the Effective Time.
2. Amendment of Warrant Agreement and Warrant Certificates. In connection with the Assignment and Assumption and effective as of the Effective Time, and as permitted under Section 6.02 of the Warrant Agreement to cure defective provisions of the Warrant Agreement and as permitted under Section 12(G)(b) of the Form of Warrant Certificate (as defined below) with respect to provisions of the Warrant Agreement related to U.S. Maritime Laws:
a. The following definitions contained in Section 1.01 of the Warrant Agreement are hereby amended and replaced in their entirety as follows:
“Charter” means the Amended and Restated Certificate of Incorporation of Tidewater Inc., as may be amended from time to time, subject to Section 3.04(d).
“Common Stock” means the common stock, par value $0.001 per share, of Tidewater Inc.
“Officer” means the Chief Executive Officer, Chief Financial Officer and General Counsel of the Company and anyone properly authorized by such persons to act as an Appropriate Officer.
b. Section 6.03 of the Warrant Agreement is hereby amended to provide that the address for notice to the Company is as follows:
Tidewater Inc.
6002 Rogerdale Road
Suite 600
Houston, Texas 77072
Fax: 1.888.909.0946
Attn: Bruce D. Lundstrom, Executive Vice President, General Counsel and Secretary
Email: blundstrom@tdw.com
c. The following definitions contained in Section 1 of the form of Warrant Certificate attached as Exhibit A to the Warrant Agreement (the “Form of Warrant Certificate”) and the Warrant Certificates representing issued and outstanding Warrants (the “Warrant Certificates”) are hereby amended and replaced in their entirety as follows:
“Charter” shall mean the Amended and Restated Certificate of Incorporation of Tidewater Inc., as may be amended from time to time, subject to Section 3.04(d).
“Common Stock” shall mean the common stock, par value $0.001 per share, of Tidewater Inc.
2
“Redemption Warrant” shall mean Warrants, as defined in the Charter.
“Warrant Share Number” shall mean 1.100 shares of Common Stock, subject to the provisions of Section 5.
d. Section 5 of the Form of Warrant Certificate shall be amended and replaced in its entirety as follows:
No Fractional Shares or Scrip. Upon exercise of any Warrants, the Company shall (a) not issue fractional Shares or scrip representing fractional Shares, and (b) adjust downward to the nearest whole number the number of Shares to be issued to the exercising Warrantholder, provided that any fractional Shares resulting from such downward adjustment shall be converted into a right to receive a cash payment (rounded up to the nearest whole cent), without interest and subject to any required tax withholding, determined by multiplying such fractional Shares by the closing price of a Share on the New York Stock Exchange on November 14, 2018; provided, further, that if more than one Warrant is presented for exercise in full at the same time by the same Warrantholder or owner of a beneficial interest in Warrants, the number of full Shares issuable, and the amount of cash payable in lieu of fractional Shares, upon the exercise thereof shall be computed on the basis of the aggregate number of Shares issuable on all such Warrants presented, and the determination of cash payable in lieu of any fractional Share shall be made only after aggregating all Shares issued upon all Warrants presented for exercise.
e. The Form of Notice of Exercise attached as Annex A to this Agreement shall amend and replace in its entirety the Form of Notice of Exercise included in Annex A to the Form of Warrant Certificate and the Warrant Certificates.
f. For the avoidance of doubt, all references to the Company in the Warrant Agreement, the Form of Warrant Certificate and the Warrant Certificates shall be deemed to be references to Tidewater except to the extent any such reference is in respect of an obligation of the Company arising prior to the Effective Date.
g. All references to “Article VI” of the Charter shall be amended as references to “Article XI” of the Charter.
3. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to the principles of conflicts of laws thereof. The parties irrevocably submit to (i) the exclusive jurisdiction of Delaware state courts and any federal court sitting in Delaware for purposes of any suit, action or other proceeding arising out of this letter agreement, or of the transactions contemplated hereby, that is brought by or against such party, and (ii) the exclusive venue of such suit, action or proceeding in Delaware.
4. Severability. If any provision of this Agreement is invalid or unenforceable, such invalidity shall not invalidate or render unenforceable any other part of this Agreement, but it shall be construed as not containing the particular provision or provisions held to be invalid or unenforceable.
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5. Binding Nature. This Agreement shall be binding on the parties and their respective successors and permitted assigns.
6. Counterparts. This Agreement may be executed in counterparts, each of which shall be considered one and the same agreement and shall become effective when such counterparts have been signed by each of the parties and delivered to each other party (including by means of facsimile, email or other means of electronic transmission), it being understood that the parties need not sign the same counterpart. Signatures to this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as physical delivery of the paper document bearing the original signature.
7. Further Assurances. The parties hereby agree to take all such steps and to execute all such additional documents, instruments and certificates as may be necessary or appropriate in order to effect the Assignment and Assumption, and the other provisions hereof, in accordance with the terms hereof.
[Signature page follows]
4
The undersigned has signed this Agreement as of the date first set forth above.
| GULFMARK OFFSHORE, INC. | ||
| By: | /s/ Quintin V. Kneen | |
| Name: | Quintin V. Kneen | |
| Title: | President and Chief Executive Officer | |
| TIDEWATER INC. | ||
| By: | /s/ Bruce Lundstrom | |
| Name: | Bruce Lundstrom | |
| Title: | Executive Vice President, General Counsel and Secretary | |
| AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC | ||
| By: | /s/ Michael A. Nespoli | |
| Name: | Michael A. Nespoli | |
| Title: | Executive Director | |
[Signature page to Assignment, Assumption and Amendment Agreement]
Annex A
FORM OF NOTICE OF EXERCISE
GLF JONES ACT WARRANTS
(to be executed only upon exercise of Warrants)
Date:
| TO: | Tidewater Inc. (the “Company”) |
| RE: | Election to Purchase Common Stock |
The undersigned registered holder of [ ] Warrants irrevocably elects to exercise the number of Warrants set forth below represented by the Global Warrant (or, in the case of a Definitive Warrant, the Warrant Certificate enclosed herewith), and surrenders all right, title and interest in the number of Warrants exercised hereby to the Company, and directs that the shares of Common Stock or other securities or property delivered upon exercise of such Warrants, and any interests in the Global Warrant or Definitive Warrant representing unexercised Warrants, be registered or placed in the name and at the address specified below and delivered thereto.
Number of Warrants
☐ Check if Warrantholder believes it satisfies the requirements to be a U.S. Citizen (additional information may be required by Company to confirm that Warrantholder is a U.S. Citizen).
☐ Check if Warrantholder believes it is a Non-U.S. Citizen.
| Warrantholder: |
| |
| By: |
| |
| Name: |
| |
| Title: |
|
| Signature guaranteed by |
|
|
|
|
Signatures must be guaranteed by a participant in a Medallion Signature Guarantee Program at a guarantee level acceptable to the Company’s transfer agent.
Annex A
| Securities to be issued to: |
||
| If in book-entry form through the Depositary: |
||
| Depositary Account Number: |
||
| Name of Agent Member: |
||
| If in definitive form: |
||
| Social Security Number or Other Identifying Number: |
||
| Name: |
||
| Street Address: |
||
| City, State and Zip Code: |
||
| Any unexercised Warrants evidenced by the exercising Warrantholder’s interest in the Global Warrant or Definitive Warrant, as the case may be, to be issued to: | ||
| If in book-entry form through the Depositary: |
||
| Depositary Account Number: |
||
| Name of Agent Member: |
||
| If in definitive form: |
||
| Social Security Number or Other Identifying Number: |
||
| Name: |
||
| Street Address: |
||
| City, State and Zip Code: |
||
Exhibit 4.4
ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT
Equity Warrants
This Assignment, Assumption and Amendment Agreement (this “Agreement”) is made and entered into as of November 15, 2018, by and among GulfMark Offshore, Inc., a Delaware Corporation (“GulfMark”), Tidewater, Inc., a Delaware Corporation (“Tidewater”), and American Stock Transfer & Trust Company, LLC (the “Warrant Agent”) and shall become effective upon the First Merger Effective Time (as defined below) (the “Effective Time”). Capitalized terms used but not defined in this Agreement have the respective meanings ascribed to such terms in the Warrant Agreement (as defined below).
WHEREAS, GulfMark is party to that certain Warrant Agreement (the “Warrant Agreement”), dated as of November 14, 2017, between GulfMark and the Warrant Agent;
WHEREAS, on July 15, 2018, GulfMark and Tidewater entered into that certain Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which a newly formed wholly-owned subsidiary corporation of Tidewater will merge with and into GulfMark, with GulfMark continuing as the surviving corporation and a wholly-owned subsidiary of Tidewater (the “First Merger”), and immediately thereafter, Tidewater will cause GulfMark to merge with and into a newly formed wholly-owned subsidiary limited liability company of Tidewater (“NewCo”), with NewCo continuing as the surviving company and a wholly-owned subsidiary of Tidewater;
WHEREAS, pursuant and subject to the terms and conditions of the Merger Agreement, at the effective time of the First Merger (the “First Merger Effective Time”), and in accordance with the terms of the Warrant Agreement, each Warrant that is outstanding immediately prior to the First Merger Effective Time will cease to represent a right to acquire shares of GulfMark Common Stock and will represent a right to acquire common stock, $0.001 par value per share, of Tidewater (“Tidewater Common Stock”), on substantially the same terms and conditions as applied to such Warrant immediately prior to the First Merger Effective Time (including the same strike price), except that the number of shares of Tidewater Common Stock subject to each Warrant shall be determined by multiplying: (A) the number of shares of GulfMark Common Stock that were subject to such Warrant immediately prior to the First Merger Effective Time; by (B) 1.100, subject to rounding down to the nearest whole number of shares of Tidewater Common Stock as provided in the Merger Agreement; and
WHEREAS, in connection with the transactions contemplated by the Merger Agreement, GulfMark desires to assign, grant, convey and transfer to Tidewater all of GulfMark’s right and interest in the Warrant Agreement and Tidewater desires to accept such assignment and assume all of GulfMark’s duties and responsibilities under the Warrant Agreement (the “Assignment and Assumption”);
NOW, THEREFORE, in consideration of the foregoing and the agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption of Warrant Agreement. GulfMark hereby assigns, grants, conveys and transfers to Tidewater all of GulfMark’s right and interest in the Warrant Agreement and Tidewater hereby accepts such assignment and agrees to assume all of GulfMark’s duties and responsibilities under the Warrant Agreement effective as of the Effective Time.
1
2. Amendment of Warrant Agreement and Warrant Certificates. In connection with the Assignment and Assumption and effective as of the Effective Time, and as permitted under Section 16 of the Warrant Agreement to cure defective provisions of the Warrant Agreement, including to comply with U.S. Maritime Laws:
a. The following definitions contained in Section 1 of the Warrant Agreement are hereby amended and replaced in their entirety as follows:
“Appropriate Officers” means the Chief Executive Officer, Chief Financial Officer and General Counsel of the Company and anyone properly authorized by such persons to act as an Appropriate Officer.
“Charter” means the Amended and Restated Certificate of Incorporation of Tidewater Inc., as may be amended from time to time.
“Common Stock” means the common stock, par value $0.001 per share, of Tidewater Inc.
“Shares” means shares of Common Stock.
b. Section 5(i) of the Warrant Agreement shall be amended and replaced in its entirety as follows:
Notwithstanding any adjustment pursuant to Section 6 in the number of Warrant Shares purchasable upon the exercise of a Warrant, the Company shall not be required to issue Warrants to purchase fractions of Warrant Shares, or to issue fractions of Warrant Shares upon exercise of the Warrants, or to distribute certificates which evidence fractional Warrant Shares. In the event of an adjustment that results in a Warrant becoming exercisable for fractional Warrant Shares, the number of Warrant Shares subject to such Warrant shall be adjusted downward to the nearest whole number the number of Warrant Shares to be issued to the exercising Holder, provided that any fractional Warrant Shares resulting from such downward adjustment shall be converted into a right to receive a cash payment (rounded up to the nearest whole cent), without interest and subject to any required tax withholding, determined by multiplying such fractional Warrant Shares by the closing price of a Share on the New York Stock Exchange on November 14, 2018; provided, further, that if more than one Warrant is presented for exercise in full at the same time by the same Holder or owner of a beneficial interest in Warrants, the number of full Warrant Shares issuable, and the amount of cash payable in lieu of fractional Warrant Shares, upon the exercise thereof shall be computed on the basis of the aggregate number of Warrant Shares issuable on all such Warrants presented, and the determination of cash payable in lieu of any fractional Warrant Share shall be made only after aggregating all Warrant Shares issued upon all Warrants presented for exercise.
2
c. Section 15 of the Warrant Agreement is hereby amended to provide that the address for notice to the Company is as follows:
Tidewater Inc.
6002 Rogerdale Road
Suite 600
Houston, Texas 77072
Fax: 1.888.909.0946
Attn: Bruce D. Lundstrom, Executive Vice President, General Counsel and Secretary
Email: blundstrom@tdw.com
d. The Form of Election to Exercise Warrant For Warrant Holders Holding Warrants Through Depository Trust Company attached as Annex A to this Agreement shall amend and replace the Form of Election to Exercise Warrant for Warrant Holders Holding Warrants Through Depository Trust Company included in the form of Global Warrant to Purchase Common Stock attached as Exhibit A-1 to the Warrant Agreement and any issued and outstanding Global Warrant Certificate.
e. The Form of Election to Exercise Warrant for Warrant Holders Holding Direct Registration Warrants attached as Annex B to this Agreement shall amend and replace in its entirety the Form of Election to Exercise Warrant for Warrant Holders Holding Direct Registration Warrants attached as Exhibit A-2 to the Warrant Agreement.
f. For the avoidance of doubt, all references to the Company in the Warrant Agreement and the Global Warrant Certificates shall be deemed to be references to Tidewater except to the extent any such reference is in respect of an obligation of the Company arising prior to the Effective Date.
g. All references to “Article VI” of the Charter shall be amended as references to “Article XI” of the Charter.
3. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to the principles of conflicts of laws thereof. The parties irrevocably submit to (i) the exclusive jurisdiction of Delaware state courts and any federal court sitting in Delaware for purposes of any suit, action or other proceeding arising out of this letter agreement, or of the transactions contemplated hereby, that is brought by or against such party, and (ii) the exclusive venue of such suit, action or proceeding in Delaware.
4. Severability. If any provision of this Agreement is invalid or unenforceable, such invalidity shall not invalidate or render unenforceable any other part of this Agreement, but it shall be construed as not containing the particular provision or provisions held to be invalid or unenforceable.
5. Binding Nature. This Agreement shall be binding on the parties and their respective successors and permitted assigns.
3
6. Counterparts. This Agreement may be executed in counterparts, each of which shall be considered one and the same agreement and shall become effective when such counterparts have been signed by each of the parties and delivered to each other party (including by means of facsimile, email or other means of electronic transmission), it being understood that the parties need not sign the same counterpart. Signatures to this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as physical delivery of the paper document bearing the original signature.
7. Further Assurances. The parties hereby agree to take all such steps and to execute all such additional documents, instruments and certificates as may be necessary or appropriate in order to effect the Assignment and Assumption, and the other provisions hereof, in accordance with the terms hereof.
[Signature page follows]
4
The undersigned has signed this Agreement as of the date first set forth above.
| GULFMARK OFFSHORE, INC. | ||
| By: | /s/ Quintin V. Kneen | |
| Name: | Quintin V. Kneen | |
| Title: | President and Chief Executive Officer | |
| TIDEWATER INC. | ||
| By: | /s/ Bruce Lundstrom | |
| Name: | Bruce Lundstrom | |
| Title: | Executive Vice President, General Counsel and Secretary | |
| AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC | ||
| By: | /s/ Michael A. Nespoli | |
| Name: | Michael A. Nespoli | |
| Title: | Executive Director | |
[Signature page to Assignment, Assumption and Amendment Agreement]
Annex A
FORM OF ELECTION TO EXERCISE GLF EQUITY WARRANT FOR
WARRANT HOLDERS HOLDING WARRANTS
THROUGH THE DEPOSITORY TRUST COMPANY
TO BE COMPLETED BY DIRECT PARTICIPANT
IN THE DEPOSITORY TRUST COMPANY
TIDEWATER INC.
Warrants to Purchase Shares of Common Stock
(TO BE EXECUTED UPON EXERCISE OF THE WARRANT)
The undersigned hereby irrevocably elects to exercise the right, represented by Warrants to purchase shares of Common Stock of Tidewater Inc. (the “Company”) held for its benefit through the book-entry facilities of The Depository Trust Company (the “Depository”), to purchase newly issued shares of Common Stock of the Company at the Exercise Price of $100 per share.
The undersigned represents, warrants and promises that it has the full power and authority to exercise and deliver the Warrants exercised hereby. The undersigned represents, warrants and promises that it has delivered or will deliver in payment for such shares $ by certified or official bank or bank cashier’s check payable to the order of the Company, or by wire transfer in immediately available funds of the aggregate Exercise Price to an account of the Warrant Agent specified in writing by the Warrant Agent for such purpose or through a cashless exercise (as described below), no later than 5:00 p.m., New York City time, on the Business Day immediately prior to the Settlement Date.
☐Please check if the undersigned, in lieu of paying the Exercise Price as set forth in the preceding paragraph, elects to exercise Warrants by authorizing the Company to withhold from issuance a number of shares of Common Stock issuable upon exercise of the Warrants which when multiplied by the Market Price of the Common Stock is equal to the aggregate price for the number of Shares for which the Warrants are being exercised at the Exercise Price (assuming the Exercise Price for all such Shares was being paid in cash), and such withheld shares shall no longer be issuable under the Warrants.
If the undersigned will be receiving the shares of Common Stock issuable upon exercise of Warrants:
☐ Please check if the undersigned is a U.S. Citizen (additional information may be required by the Company to confirm that the undersigned is a U.S. Citizen)
☐ Please check if the undersigned is a Non-U.S. Citizen.
If the undersigned has designated another person (a “designee”) to receive the shares of Common Stock issuable upon exercise of Warrants:
☐ Please check if such designee is a U.S. Citizen (additional information may be required by the Company to confirm that such designee is a U.S. Citizen)
☐ Please check if such designee is a Non-U.S. Citizen.
The undersigned requests that the shares of Common Stock purchased hereby be in registered form in the authorized denominations, registered in such names and delivered, all as specified in accordance with the instructions set forth below, provided that if the shares of Common Stock are evidenced by global securities, the shares of Common Stock shall be registered in the name of the Depository or its nominee.
Dated:
NOTE: THIS EXERCISE NOTICE MUST BE DELIVERED TO THE WARRANT AGENT, PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. THE WARRANT AGENT SHALL NOTIFY YOU
Annex A
(THROUGH THE CLEARING SYSTEM) OF (1) THE WARRANT AGENT’S ACCOUNT AT THE DEPOSITORY TO WHICH YOU MUST DELIVER YOUR WARRANTS ON THE EXERCISE DATE AND (2) THE ADDRESS, PHONE NUMBER AND FACSIMILE NUMBER WHERE YOU CAN CONTACT THE WARRANT AGENT AND TO WHICH WARRANT EXERCISE NOTICES ARE TO BE SUBMITTED.
| NAME OF DIRECT PARTICIPANT IN THE DEPOSITORY: |
||
|
(PLEASE PRINT) |
| ADDRESS: |
| CONTACT NAME: |
| ADDRESS: |
||
| TELEPHONE (INCLUDING INTERNATIONAL CODE): |
| FAX (INCLUDING INTERNATIONAL CODE): |
|
SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER (IF APPLICABLE): |
||
| ACCOUNT FROM WHICH WARRANTS ARE BEING DELIVERED: |
| DEPOSITORY ACCOUNT NO.: |
WARRANT EXERCISE NOTICES WILL ONLY BE VALID IF DELIVERED IN ACCORDANCE WITH THE INSTRUCTIONS SET FORTH IN THIS NOTIFICATION (OR AS OTHERWISE DIRECTED), MARKED TO THE ATTENTION OF “WARRANT EXERCISE”. WARRANT HOLDER DELIVERING WARRANTS, IF OTHER THAN THE DIRECT DTC PARTICIPANT DELIVERING THIS WARRANT EXERCISE NOTICE:
| NAME: |
||
|
(PLEASE PRINT) |
| CONTACT NAME: |
| TELEPHONE (INCLUDING INTERNATIONAL CODE): |
||
| FAX (INCLUDING INTERNATIONAL CODE): |
|
SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER (IF APPLICABLE): |
||
|
ACCOUNT TO WHICH THE SHARES OF COMMON STOCK ARE TO BE CREDITED: |
||
| DEPOSITORY ACCOUNT NO.: |
Annex A
FILL IN FOR DELIVERY OF THE COMMON STOCK, IF OTHER THAN TO THE PERSON DELIVERING THIS WARRANT EXERCISE NOTICE:
| NAME: |
| |
| (PLEASE PRINT) |
| ADDRESS: |
|
| CONTACT NAME: |
|
| TELEPHONE (INCLUDING INTERNATIONAL CODE): |
|
| FAX (INCLUDING INTERNATIONAL CODE): |
|
| SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER (IF APPLICABLE): |
| NUMBER OF SHARES OF COMMON STOCK FOR WHICH WARRANT IS BEING EXERCISED | ||
| (ONLY ONE EXERCISE PER WARRANT EXERCISE NOTICE): |
| |
| Signature: |
|
| Name: |
|
| Capacity in which Signing: |
|
Signature Guaranteed
| BY: |
|
Signatures must be guaranteed by a participant in a Medallion Signature Guarantee Program at a guarantee level acceptable to the Company’s transfer agent.
Annex B
FORM OF ELECTION TO EXERCISE GLF EQUITY WARRANT FOR
WARRANT HOLDERS HOLDING
INDIVIDUAL WARRANT CERTIFICATES
TO BE COMPLETED BY REGISTERED HOLDER
TIDEWATER INC.
Warrants to Purchase Shares of Common Stock
(TO BE EXECUTED UPON EXERCISE OF THE WARRANT)
The undersigned hereby irrevocably elects to exercise the right, represented by Warrants to purchase shares of Common Stock of Tidewater Inc. (the “Company”), to purchase newly issued shares of Common Stock of the Company at the Exercise Price of $100 per share.
The undersigned represents, warrants and promises that it has the full power and authority to exercise and deliver the Warrants exercised hereby. The undersigned represents, warrants and promises that it has delivered or will deliver in payment for such shares $ by certified or official bank or bank cashier’s check payable to the order of the Company, or by wire transfer in immediately available funds of the aggregate Exercise Price to an account of the Warrant Agent specified in writing by the Warrant Agent for such purpose or through a cashless exercise (as described below), no later than 5:00 p.m., New York City time, on the Business Day immediately prior to the Settlement Date.
☐Please check if the undersigned, in lieu of paying the Exercise Price as set forth in the preceding paragraph, elects to exercise Warrants by authorizing the Company to withhold from issuance a number of shares of Common Stock issuable upon exercise of the Warrants which when multiplied by the Market Price of the Common Stock is equal to the aggregate price for the number of Shares for which the Warrants are being exercised at the Exercise Price (assuming the Exercise Price for all such Shares was being paid in cash), and such withheld shares shall no longer be issuable under the Warrants.
If the undersigned will be receiving the shares of Common Stock issuable upon exercise of Warrants:
☐ Please check if the undersigned is a U.S. Citizen (additional information may be required by the Company to confirm that the undersigned is a U.S. Citizen)
☐ Please check if the undersigned is a Non-U.S. Citizen.
If the undersigned has designated another person (a “designee”) to receive the shares of Common Stock issuable upon exercise of Warrants:
☐ Please check if such designee is a U.S. Citizen (additional information may be required by the Company to confirm that such designee is a U.S. Citizen)
☐ Please check if such designee is a Non-U.S. Citizen.
The undersigned requests that the shares of Common Stock purchased hereby be in registered form in the authorized denominations, registered in such names and delivered, all as specified in accordance with the instructions set forth below, provided that if the shares of Common Stock are evidenced by global securities, the shares of Common Stock shall be registered in the name of the Depository or its nominee.
Dated:
NOTE: THIS EXERCISE NOTICE MUST BE DELIVERED TO THE WARRANT AGENT, PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. THE WARRANT AGENT SHALL NOTIFY YOU (THROUGH THE CLEARING SYSTEM) OF (1) THE WARRANT AGENT’S ACCOUNT AT THE DEPOSITORY TO WHICH YOU MUST DELIVER YOUR WARRANTS ON THE EXERCISE DATE AND (2)
Annex B
THE ADDRESS, PHONE NUMBER AND FACSIMILE NUMBER WHERE YOU CAN CONTACT THE WARRANT AGENT AND TO WHICH WARRANT EXERCISE NOTICES ARE TO BE SUBMITTED.
| NAME OF DIRECT PARTICIPANT IN THE DEPOSITORY: |
| |
|
(PLEASE PRINT) |
| ADDRESS: |
| CONTACT NAME: |
| ADDRESS: |
||
| TELEPHONE (INCLUDING INTERNATIONAL CODE): |
| FAX (INCLUDING INTERNATIONAL CODE): |
|
SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER (IF APPLICABLE): |
||
| ACCOUNT FROM WHICH WARRANTS ARE BEING DELIVERED: |
| DEPOSITORY ACCOUNT NO.: |
WARRANT EXERCISE NOTICES WILL ONLY BE VALID IF DELIVERED IN ACCORDANCE WITH THE INSTRUCTIONS SET FORTH IN THIS NOTIFICATION (OR AS OTHERWISE DIRECTED), MARKED TO THE ATTENTION OF “WARRANT EXERCISE”. WARRANT HOLDER DELIVERING WARRANTS, IF OTHER THAN THE DIRECT DTC PARTICIPANT DELIVERING THIS WARRANT EXERCISE NOTICE:
| NAME: |
| |
|
(PLEASE PRINT) |
| CONTACT NAME: |
| TELEPHONE (INCLUDING INTERNATIONAL CODE): |
| FAX (INCLUDING INTERNATIONAL CODE): |
|
SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER (IF APPLICABLE): |
||
| ACCOUNT FROM WHICH WARRANTS ARE BEING DELIVERED: |
| DEPOSITORY ACCOUNT NO.: |
Annex B
FILL IN FOR DELIVERY OF THE COMMON STOCK, IF OTHER THAN TO THE PERSON DELIVERING THIS WARRANT EXERCISE NOTICE:
| NAME: |
||
| (PLEASE PRINT) |
| ADDRESS: |
||
|
| ||
| CONTACT NAME: |
| TELEPHONE (INCLUDING INTERNATIONAL CODE): |
| FAX (INCLUDING INTERNATIONAL CODE): |
| SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER (IF APPLICABLE): |
|
|
| NUMBER OF SHARES OF COMMON STOCK FOR WHICH WARRANT IS BEING EXERCISED | ||
| (ONLY ONE EXERCISE PER WARRANT EXERCISE NOTICE): |
| Signature: |
||
| Name: |
||
| Capacity in which Signing: |
Signature Guaranteed
| BY: |
Signatures must be guaranteed by a participant in a Medallion Signature Guarantee Program at a guarantee level acceptable to the Company’s transfer agent.