TIDEWATER INC. (NYSE:TDW) Files An 8-K Entry into a Material Definitive AgreementItem 1.01. Entry into a Material Definitive Agreement.
| • | 4.06% Senior Notes, Series 2011-A due March31, 2019, 4.64% Senior Notes, Series 2011-B due June30, 2021, and 4.54% Senior Notes, Series 2011-C due June30, 2021 (collectively, the “2011 Notes”), senior unsecured notes issued to the Series A and B Note Purchase Agreement, dated August15, 2011, by and among Tidewater, certain of its subsidiaries, and certain institutional investors, and the 2011 Note Purchase Agreement, dated August15, 2011, by and among Tidewater, certain of its subsidiaries, and certain institutional investors, respectively. |
| • | 4.26% Senior Notes, Series 2013-A due November16, 2020, 5.01% Senior Notes, Series 2013-B due November15, 2023, and 5.16% Senior Notes, Series 2013-C due November17, 2025 (collectively, the “2013 Notes,” and together with the 2010 Notes and the 2011 Notes, the “Notes”), senior unsecured notes issued to the 2013 Note Purchase Agreement, dated September30, 2013, by and among Tidewater, certain of its subsidiaries, and certain institutional investors. |
| • | 7,684,453 shares of New Common Stock for issuance upon the exercise of the New Creditor Warrants that have been issued as of the Effective Date; |
| • | 2,432,432 shares of New Common Stock for issuance upon the exercise of the Series A Warrants; |
| • | 2,629,657 shares of New Common Stock for issuance upon the exercise of the Series B Warrants; and |
| • | 3,048,877 shares of New Common Stock for issuance under the MIP (as defined under Item 1.01). |
The Issuance of the New Creditor Warrants, the New Common Stock, and the Equity Warrants is exempt from the registration requirements of the Securities Act of 1933, as amended (the “Act”) to Section1145(a)(1) of the Bankruptcy Code. Section1145(a)(1) of the Bankruptcy Code exempts the offer and sale of securities under the Plan from registration under Section5 of the Act and state laws if certain requirements are satisfied.
The information regarding the terms and conditions of the New Creditor Warrants and Equity Warrants is set forth in Item 1.01 of this Current Report and is incorporated by reference into this Item 1.01.
Item 1.01. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Departure of Directors
to the Plan, as of the Effective Date, the following directors were deemed to have resigned from the Company’s board of directors: Richard A. Pattarozzi, M. Jay Allison, James C. Day, Richard T. du Moulin, Morris E. Foster, J. Wayne Leonard, Richard D. Paterson, Robert L. Potter, Cindy B. Taylor, and Jack E. Thompson.
Appointment of Directors
to the Plan, the following persons were appointed to the Company’s new board of directors as of the Effective Date: Thomas R. Bates, Jr., Alan J. Carr, Randee E. Day, Dick Fagerstal, Steven L. Newman, and Larry T. Rigdon (each, a “New Director”), with Jeffrey M. Platt, the Company’s President and Chief Executive Officer, continuing to serve as a director (together with the New Directors, the “New Board”). Certain biographical information regarding each New Director is summarized below.
Thomas R. Bates, Jr., age 68, has been an Adjunct Professor at the Neeley School of Business at Texas Christian University since January 2011 and currently serves as the Co-Chair of the Advisory Board for the Energy MBA Program. Dr.Bates began his career with Shell Oil Company where he was responsible for aspects of drilling research and operations. He next served as President of the Anadrill division of Schlumberger Limited from 1992 to 1997, Chief Executive Officer of Weatherford Enterra, Inc. from 1997 to 1998, Senior Vice President and Discovery Group President of Baker Hughes Incorporated from 1998 to 2000, and Managing Director and Senior Advisor of Lime Rock Partners from 2002 to 2012. Dr.Bates holds B.S.E., M.S.E., and Ph.D. degrees in Mechanical Engineering from the University of Michigan. Dr.Bates currently serves as Chairman and Director of both Independence Contract Drilling, Inc. and Vantage Drilling International. He also serves on the boards of Alacer Gold Corp., TETRA Technologies, Inc. and Wellflex Energy Solutions, LLC. He previously served on the boards of FTS International Inc., Hercules Offshore, Inc. and NATCO Group, Inc.
Alan J. Carr, age 47, has served as the Chief Executive Officer of Drivetrain Advisors Ltd., a fiduciary services firm which supports the investment community, since 2013. Mr.Carr practiced as a corporate restructuring attorney at Ravin, Sarasohn, Baumgarten, Fisch& Rosen from 1995 to 1997 and
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at Skadden, Arps, Slate, Meagher& Flom LLP from 1997 to 2003. From 2003 to 2013 he served as the Managing Director at Strategic Value Partners LLC, an investment manager for hedge funds and private equity funds. Mr.Carr holds a B.A. in Economics from Brandeis University and a J.D. from Tulane Law School. Mr.Carr currently serves on the boards of Kaupthing ehf, Verso Corporation, Midstates Petroleum Company and Tanker Investments, Ltd. He previously served on the boards of LightSquared Inc. and Ligado Networks LLC.
Randee E. Day, age 70, has served as the Chief Executive Officer of Goldin Maritime, LLC, since 2016. She previously led the boutique restructuring and advisory firm Day& Partners, LLC from 2011 to 2016; and in 2011, she served as the interim Chief Executive Officer of DHT Maritime, Inc. Ms.Day served as a Managing Director at the Seabury Group, a transportation advisory firm from 2004 to 2010, where she led the maritime practice and was the Division Head of JP Morgan’s shipping group in New York from 1978 to 1985. Ms.Day currently serves as a director on the boards of Eagle Bulk Shipping Inc. and International Seaways, Inc. She has previously served on the boards of numerous public companies, including TBS International Ltd., Ocean Rig ASA, DHT Maritime Inc. and Excel Maritime. Ms.Day is a graduate of the School of International Relations at the University of Southern California and undertook graduate business studies at The George Washington University. In December 2014, she graduated from the Senior Executives in National and International Security Program at the Kennedy School at Harvard University.
Dick Fagerstal, age 56, has served as Chairman and Chief Executive Officer of Global Marine Holdings LLC and Executive Chairman of Global Marine Systems Ltd. since 2014. He previously served as a director of Frontier Oil Corporation. He served in the Royal Swedish Army (Special Forces) from 1979 to 1983. Mr.Fagerstal was previously employed by Seacor Holdings, Inc. serving as Senior Vice President, Finance& Corporate Development from 2003 to 2014 and as Vice President Finance& Treasurer from 2002 to 2003. Mr.Fagerstal served as Executive Vice President, Chief Financial Officer and director of Era Group Inc. from 2011 to 2012. Mr.Fagerstal was the Senior Vice President and Chief Financial Officer and director of Chiles Offshore Inc. from 1997 to 2002 and served as a banker in various positions at DnB NOR Bank ASA from 1986 to 1997. Mr.Fagerstal received a B.S. in Economics from the University of Gothenburg in 1984 and an M.B.A. in Finance as a Fulbright Scholar from New York University in 1986.
Steven L. Newman, age 54, served as the Chief Executive Officer at Transocean Ltd. from March 2010 to February 2015 and as President from May 2008 to February 2015. He served as the Chief Operating Officer of Transocean Ltd. from May 2008 to November 2009 and held various other positions with Transocean beginning in 1994. Prior to working with Transocean, he served as a Financial Analyst at Chevron from 1992 to 1994, and was a Reservoir Engineer with Mobil E&P, US from 1989 to 1990. Mr.Newman currently serves as a director of Dril-Quip, Inc. and of SNC-Lavalin Group Inc. He previously served as a director of Transocean Ltd. and of Bumi Armada Berhad. Mr.Newman received a B.S. in Petroleum Engineering from the Colorado School of Mines and an MBA from the Harvard University Graduate School of Business.
Larry T. Rigdon, age 69, has nearly 40 years of experience in the offshore oil and gas industry. Mr.Rigdon worked as a consultant for FTI Consulting from 2015 to 2016 and for Duff and Phelps, LLC from 2010 to 2011. He served as the Chairman and Chief Executive Officer of Rigdon Marine from 2002 to 2008. Previously at Tidewater, Mr.Rigdon served as an Executive Vice President from 2000 to 2002, a Senior Vice President from 1997 to 2000, and a Vice President from 1992 to 1997. Before working at Tidewater, he served as Vice President at Zapata Gulf Marine from 1985 to 1992, and in various capacities, including Vice President of Domestic Divisions from 1983 to 1985, at Gulf Fleet Marine from 1977 to 1985. Mr.Rigdon currently serves as a director of Professional Rental Tools, LLC. He formerly served as a director of Jackson Offshore Holdings, Terresolve Technologies, Gulfmark Offshore, and Rigdon Marine.
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Related Party Transactions. As a former Tidewater executive, Mr.Rigdon currently receives fixed retirement benefits from the Company (including pension plan payments, benefits under the Supplemental Executive Retirement Plan, and life insurance benefits), with a total annual value of approximately $127,670.
Board Structure and Committee Appointments. On the Effective Date, the New Board elected Mr.Bates as its chairman. In addition, the New Board made the following committee appointments:
Audit Committee: Dick Fagerstal (Chair), Randee E. Day, and Larry T. Rigdon.
Compensation Committee: Steven L. Newman (Chair), Thomas R. Bates, Jr., and Alan J. Carr.
Nominating and Corporate Governance Committee: Alan J. Carr (Chair), Thomas R. Bates, Jr., and Randee E. Day.
Management Incentive Plan
On the Effective Date, a new management incentive plan, the Tidewater Inc. 2017 Stock Incentive Plan (the “MIP”), became effective to the operation of the Plan.
A maximum of 3,048,877 shares of New Common Stock are reserved for issuance under the MIP, subject to adjustment as provided in the MIP. Persons eligible to receive awards under the MIP include non-employee directors of the Company and key employees and officers of the Company or any of its subsidiaries. The types of awards that may be granted under the MIP include stock options, restricted stock, restricted stock units, and other equity- or cash-based awards granted or denominated in shares of New Common Stock, as well as certain cash-based awards.
The Compensation Committee of the Board will generally administer the MIP and has the authority to grant awards under the Plan, including setting the terms of the awards, although the Nominating and Corporate Governance Committee has such authority with respect to awards granted to directors who are not employees of the Company (in each case, the “Committee”).
The description of the MIP is qualified in its entirety by reference to the full text of the MIP, a copy of which is attached as Exhibit 10.3 to, and is incorporated by reference into, this Current Report.
As previously disclosed, the Company anticipates that 1,131,896 of the total shares of New Common Stock reserved for issuance under the MIP will be issuable to time-based restricted stock units scheduled to be granted to certain officers and key employees within thirty days of the Effective Date.
Item 1.01. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On the Effective Date, to the terms of the Plan, the Company filed the Restated Certificate of Incorporation (the “Certificate of Incorporation”) with the office of the Secretary of State of the State of Delaware. Also on the Effective Date, and to the terms of the Plan, the Company adopted the Amended and Restated Bylaws (the “Bylaws”). The following descriptions do not purport to be complete and are subject to and qualified by the full terms of the Certificate of Incorporation and the Bylaws, copies of which are attached as Exhibits 3.1 and 3.2, respectively, to, and are incorporated by reference into, this Current Report. Additionally, the General Corporation Law of the State of Delaware (the “DGCL”) may contain provisions that affect the capital stock of the Company.
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Provisions of Tidewater’s Certificate of Incorporation and Bylaws
Capital Stock. The Company’s authorized capital stock consists of 128,000,000 shares, which includes 125,000,000 shares of New Common Stock, par value $0.001, and 3,000,000 shares of preferred stock, without par value.
Dividends. Subject to the rights granted to any holders of the preferred stock, holders of the New Common Stock will be entitled to dividends, if any, in the amounts and at the times declared by the Company’s Board in its discretion out of any assets or funds of the Company legally available for the payment of dividends.
Voting. Each holder of shares of the New Common Stock is entitled to one vote for each share of the New Common Stock on all matters presented to the stockholders of the Company, including the election of directors. Each director will be elected by a majority of the votes cast with respect to that director’s election (i.e. the number of votes cast “for” a director exceeds the votes cast “against” the director), unless the number of nominees for director exceeds the number of directors to be elected, in which case, the directors will be elected by a plurality of the shares represented in person or by proxy and entitled to vote on the election of directors.
Written Consent of Stockholders. The Company’s Certificate of Incorporation provides that any action required or permitted to be taken by the stockholders must be taken at a duly called meeting of stockholders and not by written consent; however, this provision may be amended by the vote of 80% of the stockholders.
Amendment of the Bylaws. Under Delaware law, the power to adopt, amend or repeal bylaws is conferred upon the stockholders. A corporation may, however, in its certificate of incorporation also confer upon the board of directors the power to adopt, amend or repeal its bylaws. The Certificate of Incorporation and Bylaws grant the Board or the stockholders the power to adopt, amend and repeal the Bylaws on the affirmative vote of a majority of the directors then in office or of the shareholders owning a majority of the Company’s shares entitled to vote on the matter.
Special Meetings of Stockholders. The Bylaws preclude the ability of the stockholders to call special meetings of stockholders.
Other Limitations on Stockholder Actions. Advance notice is required for stockholders to nominate directors or to submit proposals for consideration at meetings of stockholders, which to be timely, such notice is required no sooner than 120 days and no later than 90 days before the meeting. The Bylaws provide detailed procedures for the nomination of directors and the conduct of meetings.
Record Date. The record date to determine who is entitled to notice of and to participate in a meeting will be no more than 60 and no less than 10 days before a meeting of stockholders. The Bylaws provide for a dual record date, in which the Board may establish a separate voting record date to determine the shareholders actually entitled to vote.
Board of Directors. The Board of Directors will consist of five or more members. The terms of the directors will run until a successor is duly elected and qualified or the death, resignation, disqualification or removal of the director. At each annual meeting of stockholders, all director seats are up for election. Directors are elected in an uncontested election by a majority of the votes cast and in a contested election by a plurality of the votes cast. When there is a contested election or a failed election, which does not bring the sufficient amount of votes, the director must tender his or her resignation, and the Board will determine whether or not to accept such resignation. Directors may be elected without a written ballot.
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The Bylaws provide that any action required or permitted to be taken by the Board at a duly called meeting may be taken by the unanimous written consent of the Board.
Limitation of Liability and Indemnification of Officers and Directors. The Certificate of Incorporation provides that no officer or director shall be personally liable to the Company or the stockholders for monetary damages for breach of fiduciary duty as an officer or director to the fullest extent permitted by the DGCL. The Certificate of Incorporation provides for mandatory indemnification of the Company’s officers and directors and requires the mandatory advancement of expenses and coverage of amounts paid in settlement without the approval of the Company. The officers and directors have the right to sue if the Company does not pay upon a written demand within 30 days, but which may be extended up to an additional 30 days.
Business Combination Under Delaware Law. The Company is subject to the provisions of Section203 of the DGCL and has voluntarily elected to be governed by Section203 in the Certificate of Incorporation, except for the provisions of Section203(b)(4). In general, Section203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in a prescribed manner.
Section203 defines a “business combination” as a merger, asset sale or other transaction resulting in a financial benefit to the interested stockholders. Section203 defines an “interested stockholder” as a person who, together with affiliates and associates, owns, or, in some cases, within three years prior, did own, 15% or more of the corporation’s voting stock. Under Section203, a business combination between the Company and an interested stockholder is prohibited unless:
| • | before the stockholder became interested, the Board approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder prior to the date the person attained the status; |
| • | upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock outstanding at the time the transaction commenced, excluding, for purposes of determining the number of shares outstanding, shares owned by persons who are directors and also officers and employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
| • | the business combination is approved by the Board on or subsequent to the date the person became an interested stockholder and authorized at an annual or special meeting of the stockholders, and not by written consent, by the affirmative vote of the holders of at least 66⁄% of the outstanding voting stock that is not owned by the interested stockholder. |
This provision has an anti-takeover effect with respect to transactions not approved in advance by the Board, including discouraging takeover attempts that might result in a premium over the market price for the shares of the Company’s New Common Stock. With approval of the stockholders, the Company could amend the Certificate of Incorporation in the future to elect not to be governed by the anti-takeover law. This election would be effective 12 months after the adoption of the amendment and would not apply to any business combination between the Company and any person who became an interested stockholder on or before the adoption of the amendment. By “opting-in” to Section203, the provisions will apply to the Company regardless of whether the Company is no longer listed on a National Securities Exchange or falls below 2,000 record holders under Section203(b)(4).
Exclusive Forum. The Certificate of Incorporation provides that, unless the Company consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of
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Chancery shall not have jurisdiction, another state court located within the state of Delaware, or if no such state court shall have jurisdiction, the federal district court for the District of Delaware) will be, to the fullest extent permitted by law, the exclusive forum for (i)any derivative action or proceeding brought on the Company’s behalf, (ii)any action asserting a breach of fiduciary duty, (iii)any action asserting a claim arising to the DGCL, the Certificate of Incorporation or the Bylaws, or (iv)any action asserting a claim against the Company or any director or officer or other employee of the Company that is governed by the internal affairs doctrine. Any person or entity purchasing or otherwise holding any interest in shares of capital stock of the Company will be deemed to have notice of and consented to the foregoing forum selection provisions.
Limitations on Ownership by Non-U.S. Citizens. To ensure the continuing ability of U.S. flag vessels owned by the Company’s subsidiaries to be eligible to engage in U.S. coastwise trade, the Company’s Certificate of Incorporation and Bylaws include provisions restricting ownership by Non-U.S. Citizens of the Company’s capital stock. The Jones Act requires any corporation that engages in U.S. coastwise trade be a U.S. Citizen within the meaning of that law, which requires, among other things, that the aggregate ownership of common stock by Non-U.S. Citizens within the meaning of the Jones Act be not more than 25% of its outstanding common stock. The Company’s Certificate of Incorporation and Bylaws contain restrictions and protections designed to ensure the Company’s U.S. flag vessels continue to be eligible to engage in coastwise trade under the Jones Act. These restrictions and protections prohibit the acquisition of shares or exercise of warrants where such acquisition or exercise would cause the aggregate number of shares held by Non-U.S. Citizens to exceed 24%. These restrictions and protections further provide the Board authority to redeem any share of common stock that is owned by Non-U.S. Citizens that would result in ownership by Non-U.S. Citizens in the aggregate in excess of 24%.
Item 1.01. Regulation FD Disclosure.
On the Effective Date, Tidewater issued a press release announcing its emergence from the Bankruptcy Cases. A copy of the press release is filed as Exhibit 99.2 to, and incorporated by reference into, this Current Report.
The information included in this Current Report on Form 8-K under Item 1.01 and Exhibit 99.2 is being furnished and shall not be deemed “filed” for purposes of Section18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to liabilities of that Section, unless the registrant specifically states that the information is to be considered “filed” under the Exchange Act or incorporates it by reference into a filing under the Exchange Act or the Securities Act of 1933, as amended.
Forward-Looking Statements.
In accordance with the safe harbor provisions of the Private Securities Litigation Reform Act of 1995, the Company notes that certain statements set forth in this Current Report on Form 8-K provide other than historical information and are forward looking. The actual achievement of any forecasted results, or the unfolding of future economic or business developments in a way anticipated or projected by the Company, involve numerous risks and uncertainties that may cause the Company’s actual performance to be materially different from that stated or implied in the forward-looking statement. Among those risks and uncertainties, many of which are beyond the control of the Company, including, without limitation, potential adverse effects on the Company’s liquidity or results of operations; effects on the market price of the Company’s common stock and on the Company’s ability to access the capital markets; volatility in worldwide energy demand and oil and gas prices, and continuing depressed levels of oil and gas prices, without a clear indication of if, or when, prices will recover to a level to support renewed offshore exploration activities; consolidation of our customer base; fleet additions by competitors and industry overcapacity; our views with respect to the need for and timing of the replenishment of our asset base,
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including through acquisitions or vessel construction; changes in capital spending by customers in the energy industry for offshore exploration, field development and production; loss of a major customer; changing customer demands for vessel specifications, which may make some of our older vessels technologically obsolete for certain customer projects or in certain markets; delays and other problems associated with vessel construction and maintenance; uncertainty of global financial market conditions and difficulty in accessing credit or capital; potential difficulty in meeting financial covenants in material debt or other obligations of the Company or in obtaining covenant relief from lenders or other contract parties; acts of terrorism and piracy; integration of acquired businesses and entry into new lines of business; disagreements with our joint venture partners; significant weather conditions; unsettled political conditions, war, civil unrest and governmental actions, such as expropriation or enforcement of customs or other laws that are not well developed or consistently enforced, or requirements that services provided locally be paid in local currency, in each case especially in higher political risk countries where we operate; foreign currency fluctuations; labor changes proposed by international conventions; increased regulatory burdens and oversight; changes in laws governing the taxation of foreign source income; retention of skilled workers; enforcement of laws related to the environment, labor and foreign corrupt practices; and the resolution of pending legal proceedings. Readers should consider all of these risk factors as well as other information contained in this report.
Item 1.01. Financial Statements and Exhibits.
(d) The exhibits to this Current Report on Form 8-K are listed in the Exhibit Index, which appears at the end of this report and is incorporated into this Form 8-K by reference.
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TIDEWATER INC ExhibitEX-3.1 2 d431632dex31.htm EX-3.1 EX-3.1 Exhibit 3.1 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF TIDEWATER INC. Adopted in accordance with the provisions of §303,…To view the full exhibit click here
About TIDEWATER INC. (NYSE:TDW)
Tidewater Inc. provides offshore service vessels and marine support services. The Company operates through four segments: Americas, Asia/Pacific, Middle East/North Africa and Sub-Saharan Africa/Europe. Its Americas segment includes the activities of the Company’s North American operations, which include operations in the United States Gulf of Mexico (GOM), and the United States and Canadian coastal waters of the Pacific and Atlantic oceans, as well as operations of offshore Mexico, Trinidad and Brazil. The Asia/Pacific segment includes its Australian and Southeast Asian and Western Pacific operations. The Middle East/North Africa segment includes its operations in the Mediterranean and Red Seas, the Black Sea, the Arabian Gulf and offshore India. The Company’s Sub-Saharan Africa/Europe segment includes operations conducted along the East and West Coasts of Africa, as well as operations in and around the Caspian Sea, the North Sea, and certain other arctic/cold water markets.