Equity Purchase Agreement, dated as of May 16, 2022, by and among Helix Alliance Decom, LLC, Stephen J. Williams and Helix Energy Solutions Group, Inc. (solely for purposes of Sections 1.05(d) (earn out consideration) and 6.14 (guarantee of Purchasers obligation))
EXHIBIT 2.1
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED. [***] INDICATES THAT INFORMATION HAS BEEN REDACTED.
EQUITY PURCHASE AGREEMENT
BY AND AMONG
HELIX ALLIANCE DECOM, LLC,
STEPHEN J. WILLIAMS,
AND
HELIX ENERGY SOLUTIONS GROUP, INC.,
(solely for purposes of Section 1.05(d) and Section 6.14 herein)
DATED AS OF MAY 16, 2022
TABLE OF CONTENTS
Article I
PURCHASE AND SALE
Article II
CLOSING
Article III
REPRESENTATIONS AND WARRANTIES concerning THE COMPANIES
Article IV
representations and warranties CONCERNING seller
Article V
REPRESENTATIONS AND WARRANTIES CONCERNING PURCHASER
Article VI
COVENANTS
Article VII
TAX MATTERS
Article VIII
CONDITIONS TO CLOSING
Article IX
TERMINATION
Article X
INDEMNIFICATION
Article XI
MISCELLANEOUS
ANNEXES
Annex ADefined Terms
Annex BDormant Entities
EXHIBITS
Exhibit AExample Calculations
Exhibit BINTENTIONALLY OMITTED
Exhibit CForm of Assignment of Interests
Exhibit DForm of Employment Agreement
Exhibit EDNV Report - Condition
EQUITY PURCHASE AGREEMENT
THIS EQUITY PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of May 16, 2022 (the “Effective Date”), by and among Helix Alliance Decom, LLC, a Delaware limited liability company (“Purchaser”), Stephen J. Williams, an individual resident of the State of Louisiana (“Seller”), and solely for purposes of Section 1.05(d) and Section 6.14 herein, Helix Energy Solutions Group, Inc., a Minnesota corporation (“Helix”). Seller, Purchaser and Helix may be referred to collectively herein as the “Parties” and individually as a “Party.” Any term used but not defined in this Agreement shall have the meaning given to such term in Annex A, which Annex A is hereby incorporated herein by reference.
RECITALS
WHEREAS, other than the applicable Warrants, Seller owns all of the issued and outstanding Equity Interests of each of Alliance Maritime Holdings, LLC, a Louisiana limited liability company (“Alliance Maritime Holdings”), Whitney Clare Holdings, LLC, a Louisiana limited liability company (“Whitney Clare Holdings”), and Heavy Lift Holdings, LLC, a Louisiana limited liability company (“Heavy Lift Holdings”);
WHEREAS, other than the applicable Warrants, Seller and GOM VL-WL Holdings, LLC, a Louisiana limited liability company (“GOM VL”), collectively own all of the issued and outstanding Equity Interests of each of Whitney Maritime Holdings, LLC, a Louisiana limited liability company (“Whitney Maritime Holdings”), and Alliance Vessel Leasing, LLC, a Louisiana limited liability company (“Alliance Vessel Leasing”);
WHEREAS, Seller and Whitney Clare Holdings collectively own all of the issued and outstanding Equity Interests of Alliance Special Ventures Holdings, LLC, a Louisiana limited liability company (“Alliance Special Ventures Holdings”);
WHEREAS, other than the applicable Warrants, Seller and GOM ES Holdings, LLC, a Louisiana limited liability company (“GOM ES”), collectively own all of the issued and outstanding Equity Interests of Alliance Industry Holdings, LLC, a Louisiana limited liability company (“Alliance Industry Holdings”);
WHEREAS, Alliance Industry Holdings and Priority Energy Holdings, LLC, a Texas limited liability company (“Priority Energy Holdings”), collectively own all of the issued and outstanding Equity Interests of Alliance Energy Services, LLC, a Louisiana limited liability company (“Alliance Energy Services”);
WHEREAS, prior to consummation of the transactions contemplated by this Agreement, (a) Seller shall take the necessary action to effect (i) the surrender and cancellation of the Warrants (as defined herein), (ii) the redemption or repurchase of the Equity Interests held by the Minority Equityholders (as defined herein), and (iii) the contribution or transfer of the Equity Interests of the entities set forth on Annex B (the “Dormant Entities”) to a new entity to be formed by Seller, such that the Equity Interests of the Dormant Entities are excluded from the sale to Purchaser pursuant to the transactions contemplated by this Agreement, and (b) Seller shall form a Delaware limited liability company (“Holdings”), and contribute to Holdings all of the Equity Interests of Alliance Maritime Holdings, Whitney Maritime Holdings, Whitney Clare Holdings, Alliance
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Industry Holdings, Heavy Lift Holdings, and Alliance Vessel Leasing (the transactions collectively contemplated thereby, the “Reorganization”);
WHEREAS, following the consummation of the Reorganization, Seller will own all of the issued and outstanding Equity Interests of Holdings (such Equity Interests, the “Interests”), with Holdings in turn owning all of the issued and outstanding Equity Interests of Alliance Maritime Holdings, Whitney Maritime Holdings, Whitney Clare Holdings, Alliance Industry Holdings, Heavy Lift Holdings, and Alliance Vessel Leasing (together with Holdings and each of the Subsidiaries of the foregoing, including Alliance Energy Services, Alliance Offshore, and Triton Diving Services, but expressly excluding the Dormant Entities, collectively, the “Companies” and each, a “Company”); and
WHEREAS, subject to the terms and conditions of this Agreement, Purchaser desires to purchase from Seller, and Seller desires to sell to Purchaser, all of the Interests.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants, agreements, representations and warranties herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be bound, do hereby agree as follows:
PURCHASE AND SALE
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example and principles set forth on Exhibit A-1, and to the extent not addressed in Exhibit A-1, in accordance with GAAP. The Estimated Closing Date Cash Payment shall be subject to adjustment pursuant to the provisions of Section 1.04(b).
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soon as practicable thereafter, including by promptly complying with all reasonable requests by the Accounting Arbitrator for information, books, records and similar items. Seller and Purchaser will jointly instruct the Accounting Arbitrator to make a determination of the Unresolved Disputed Items (i) in writing, (ii) as promptly as practicable after such Unresolved Disputed Items have been referred to the Accountant Arbitrator (but in no event later than forty-five (45) days thereafter), (iii) in accordance with this Agreement and (iv) the Accounting Arbitrator shall consider only those Unresolved Disputed Items and base its determination within the range of values assigned by the parties to each Unresolved Disputed Item and solely on the information, books, records and similar items submitted by Purchaser and Seller. In resolving any Unresolved Disputed Item, the Accounting Arbitrator may not assign a value to any Unresolved Disputed Item greater than the greatest value or less than the smallest value for such Unresolved Disputed Item claimed by either Party. The decision of the Accounting Arbitrator shall be final and binding upon the Parties and enforceable by any court of competent jurisdiction and the Accounting Arbitrator’s final calculations of the Unresolved Disputed Items, along with the items previously agreed upon or deemed agreed upon by the Parties in accordance with the foregoing clauses of this Section 1.04(b) shall be the “Final Working Capital”, “Final Debt”, “Final Company Transaction Expenses” “Final Redemption Payments”, “Final Related Party Transaction Payments”, and/or “Final Restricted Distributions”, as applicable, and the resulting calculation of the Closing Date Cash Payment calculated in accordance with Section 1.02, using the amounts determined by the Accounting Arbitrator and the items previously agreed upon or deemed agreed upon by the Parties in accordance with the foregoing clauses of this Section 1.04(b) as inputs therein shall be the “Final Closing Date Cash Payment”, which, in each case, shall be deemed final, conclusive and binding upon the Parties for all purposes of this Agreement. If required by the Accounting Arbitrator, Seller and Purchaser shall share, in equal proportion, the payment of any up-front retainer for the engagement of the Accounting Arbitrator; provided, however, that any such retainer shall be subject to adjustment in accordance with the immediately following sentence. The fees and expenses of the Accounting Arbitrator shall be paid by Purchaser and Seller in inverse proportion to the relative Disputed Items determined to be for the account of Purchaser and Seller, respectively (such that if the Accounting Arbitrator rules 25% in favor of the first Party and 75% in favor of the second Party, the first Party will pay 75% of the fees and expenses of the Accounting Arbitrator and the second Party will pay 25%). No Party will disclose to the Accounting Arbitrator, and the Accounting Arbitrator will not consider for any purpose, any settlement discussions or settlement offer made by any Party.
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Section 1.04(b), Purchaser shall pay the Purchase Price Excess to Seller, by wire transfer of immediately available funds to the account designated in writing by Seller.
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or would not be upon issuance, listed for trading on the NYSE or NASDAQ, or Helix has received notice that it does not satisfy the listing standards of the NYSE or NASDAQ, or (2) the issuance of Common Stock would cause Seller to be the “beneficial owner” (as defined in Rule 13d-3(a) of the Exchange Act), as determined by Helix in its reasonable discretion based upon such information as Helix may reasonably request from Seller, of greater than or equal to ten percent (10%) of the issued and outstanding Common Stock as of the Earn-Out Payment Date (as defined below) or otherwise deemed an “affiliate” under Rule 144(a)(1) of the Securities Act, which determination shall be made by Helix in its reasonable discretion based on a standard Rule 144 letter of representations to be delivered by Seller to Helix.
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but in no event later than the earlier of (i) the ninetieth (90th) calendar day following the Filing Deadline if the staff (the “Staff”) of the Securities and Exchange Commission (the “SEC”) notifies Helix that it will “review” the registration statement, and (ii) the five (5) Business Days after the date Helix is notified (orally or in writing, whichever is earlier) by the Staff that the registration statement will not be “reviewed,” or will not be subject to further review;
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(iii) not intentionally operate the Companies in a way, or take any action, with the sole purpose of adversely affecting the ability of Seller to achieve the Earn-Out Consideration.
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CLOSING
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REPRESENTATIONS AND WARRANTIES concerning THE COMPANIES
Seller hereby represents and warrants to Purchaser as follows:
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reorganization, moratorium or other similar Applicable Laws affecting the enforcement of creditors’ rights generally, and by general equitable principles.
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properties of the Companies (other than the vessels) (i) are in a state of sufficient operating condition and repair to allow for the operation of the Business in the Ordinary Course of Business, subject to ordinary wear and tear, (ii) conform with all Applicable Laws, and (iii) are adequate for the uses to which they are being put. Except as set forth on Schedule 3.07(b), the assets and properties owned or leased by the Companies constitute all of the assets and properties, tangible and intangible, of any nature whatsoever, necessary or required for the continued conduct of the Business by Purchaser in substantially the same manner as presently conducted.
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disposition made on or prior to the Closing Date; (iv) prepaid amount received on or prior to the Closing Date; or (v) the cash method of accounting or long-term contract method of accounting utilized prior to the Closing.
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that it owns or uses (“Company Confidential Information”). All use by and disclosure of Company Confidential Information has been pursuant to the terms of valid and binding written confidentiality and non-use agreements.
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any of its assets or the Business, (b) to the Knowledge of Seller, there are no claims, facts, conditions or circumstances that could reasonably be expected to give rise to a Proceeding that would be required to be disclosed pursuant to subclause (a) of this Section 3.11, and (c) there are no Orders outstanding against or, to the Knowledge of Seller, threatened against, Seller, any Company or otherwise affecting or relating to its assets or the Business.
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Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and Part 6 of Subtitle B of Title I of ERISA and the regulations thereunder.
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accurate filing of any required IRS Form 8928 to report any excise taxes owed under Code Section 4980D and timely payment of any such excise taxes; (E) timely and accurate filing of Forms 1094-C and 1095-C, as required by Code Section 6056; and (F) timely and accurate filing of IRS Form 720 to report and pay the Patient Centered Outcomes Research Institute trust fund tax imposed under Code Section 4376. No Company nor any of its ERISA Affiliates have ever received a notice of assessment of penalties under Code Section 4980H from the IRS nor, to the Knowledge of Seller, are there circumstances under which such an assessment could be levied.
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opportunity, affirmative action, collective bargaining, payment of social security, occupational safety and health, wages and hours, plant closing and workers compensation, including the Immigration Reform and Control Act, Title VII of the Civil Rights Act of 1964, as amended, the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Americans with Disability Act, the Family and Medical Leave Act, the National Labor Relations Act, WARN, ERISA, the Code and any other Applicable Laws governing, touching upon or concerning the employment relationship. No Company has engaged at any time during the past six (6) months, and no Company is currently engaging, in any unfair labor practice. There are not any pending or, to the Knowledge of Seller, threatened Proceedings alleging (i) breach of an employment contract (whether in fact, expressed or implied), (ii) a claim for workers’ compensation, (iii) any tort such as invasion of privacy, defamation, or intentional infliction of emotional distress, or (iv) any violation of any employment Applicable Laws, including the statutes and laws cited in this Section 3.15(d). No Company is currently subject to any Proceedings or Orders from any Governmental Entity regarding employment and employment practices, the terms and conditions of employment, non-discrimination, equal employment opportunity, collective bargaining, payment of social security, occupational safety and health, wages and hours, plant closing, workers compensation, or any and all of the employment laws, regulations or statutes cited above. Each Company is properly classifying, and has for the last five (5) years properly classified, its employees and contractors under all Applicable Laws in all material respects. Each Company has for the last five (5) years properly paid its employees and contractors all compensation, including all overtime, required by Applicable Laws.
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Company has received any written notice of cancellation, non-renewal or termination in respect of any such policy or bond nor is any Company in default thereunder. No Company has received notice that any insurer under any policy or bond referred to in Schedule 3.16(a) is denying liability with respect to an unresolved claim thereunder or defending such claim under a reservation of rights clause. Each applicable Company has complied in all material respects with the terms and conditions of all such policies and bonds. To the Knowledge of Seller, there is no threatened termination of, or premium increase with respect to, any of such policies or bonds. Since the last renewal date of any insurance policy, there has not been any material adverse change in the relationship of any Company with its respective insurers or the premiums payable pursuant to such policies. All policies of insurance to which any Company is a party or that provide coverage to any Company, taken together, provide adequate insurance coverage for the operations, assets and properties of such Company, for all risks normally insured against by a Person carrying on the same business or businesses as such Company in the same location and for all risks to which such Company is normally exposed, and are sufficient for material compliance with all Contracts of such Company.
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(10) vendors, providers or suppliers of each such Company by dollar volume of purchases in any of the calendar years 2020 and 2021, or first quarter 2022, and for each such vendor, provider or supplier, the aggregate dollar amount of purchases in each such period (each, a “Material Supplier” and, collectively, the “Material Suppliers”). No Material Supplier has: (i) terminated, or communicated to any Company its intention to terminate, its relationship with any Company; (ii) reduced substantially, or communicated to any Company its intention to reduce substantially, the quantity of products or services it sells to any Company; (iii) materially changed, or communicated to any Company its intention to materially change, the price or terms on which it sells products or services to any Company; or (iv) has given written notice or, to the Knowledge of Seller, other notice to any Company that it will cease to deal with any Company as a result of the consummation of the transactions contemplated hereby.
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representations and warranties CONCERNING seller
Seller represents and warrants to Purchaser as follows:
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REPRESENTATIONS AND WARRANTIES CONCERNING PURCHASER
Purchaser represents and warrants to the Seller as follows:
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in, or require, the creation or imposition of, any material Lien upon or with respect to the assets or properties of Purchaser.
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and agrees that: (a) in making its decision to enter into this Agreement and to consummate the transactions contemplated hereby, Purchaser has relied solely upon its own investigation and the representations, warranties, covenants and obligations of Seller set forth in this Agreement (including, with respect to the representations and warranties, as applicably supplemented by the Disclosure Schedules); and (b) none of the Companies, Seller, or any other Person has made, nor has Purchaser relied upon, any representation or warranty as to the Companies, Seller, or this Agreement, except as expressly set forth in Articles III and IV of this Agreement (as applicable supplemented by the Disclosure Schedules).
COVENANTS
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Documents, promptly notify the other Party of the content and substance of such communication, (v) provide each other Party with a reasonable advance opportunity to review, discuss and comment upon and consider in good faith the views of the other Party in connection with all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions, proposals, and other materials made or submitted by or on behalf of any Party relating to Proceedings regarding this Agreement and the other Transaction Documents but excluding (x) any interactions between one Party or its representatives with Governmental Entity in the Ordinary Course of Business, (y) any disclosure not permitted by Applicable Laws and (z) any disclosure containing confidential information) with a Governmental Entity regarding this Agreement and the other Transaction Documents, and (vi) provide each other Party with copies of all written correspondence, filings and communications between such Party or any of its representatives and any Governmental Entity or members of its staff regarding this Agreement and the other Transaction Documents; provided, that such materials may be redacted (A) to remove references to valuation, (B) as necessary to comply with contractual arrangements or Applicable Laws and (C) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns. Each Party may, as it deems advisable and necessary, designate any competitively sensitive materials provided to the other Party under this Section 6.04 as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel and previously-agreed outside economic consultants of the recipient and will not be disclosed by such outside counsel or outside economic consultants to employees, officers, or directors of the recipient without the advance written consent of the Party providing such materials.
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to be done all things necessary, proper or advisable under Applicable Laws, and to execute and deliver such documents and other papers, as may be required to carry out the provisions of this Agreement, and cause the fulfillment at the earliest practicable date of all of the conditions to their respective obligations to consummate the transactions contemplated by this Agreement. Seller will, and will cause its Affiliates to, refer all customer inquiries relating to the Business to the Companies and/or Purchaser from and after the Closing.
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and with respect to which Purchaser is entitled to the protections afforded by this Agreement and to the remedies for enforcement of this Agreement provided by law or in equity (including those remedies the availability of which may be within the discretion of the court or arbitrator that presides over any action for which enforcement of this Agreement is brought).
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the goodwill of the Companies through the transactions contemplated by this Agreement. Seller further acknowledges and agrees that:
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all other documents, instruments, and certificates delivered or otherwise contemplated in connection with the Reorganization, the “Reorganization Documents”), including:
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a “Holdback Amount” and collectively, the “Holdback Amounts”), in each case, to the extent applicable.
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Agreement (or, if applicable, Secondary Buy-out Agreement) have not been consummated by the Holdback Deadline, then the amount of any Earn-Out Consideration payable to Seller hereunder, if any, shall be proportionately reduced by a fraction, the numerator of which is (x) the applicable Holdback Amounts, and the denominator of which is (y) $120,000,000.
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TAX MATTERS
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income Tax Returns) prior to the due date (including extensions) for filing such Tax Returns and shall consider in good faith any changes to such Tax Returns as are reasonably requested by Purchaser. The Companies shall timely pay to the applicable Governmental Entity any Tax shown as due and owing by the Companies on such Tax Returns, provided, that Seller shall be responsible for, and shall pay to Purchaser (for the benefit of the applicable Purchaser Indemnified Party) within five (5) Business Days after the filing of such Tax Return, the amount of Taxes owed by Seller pursuant to Section 7.02 with respect to such filed Tax Return.
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underpayment. Seller shall fully cooperate with Purchaser and each Company with respect to, and to take such actions as are necessary to implement, any of the foregoing.
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CONDITIONS TO CLOSING
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by a Governmental Entity of competent jurisdiction restraining, enjoining, preventing, prohibiting or making illegal the consummation of the transactions contemplated hereby;
TERMINATION
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shall be without liability to Purchaser or Seller, except as provided in Section 9.01(f) hereof; provided, however, that the provisions of this Section 9.03 and Section 9.01(f) and Article XI hereof shall survive any such termination and shall be enforceable hereunder; provided further, however, that nothing in this Section 9.03 shall relieve Purchaser, any Company or Seller of any liability for a knowing and intentional breach of this Agreement prior to the effective date of termination.
INDEMNIFICATION
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by the Indemnifying Party is reasonably likely to cause the Indemnified Party to lose coverage under the R&W Insurance Policy, (viii) if the Third Party Claim involves Losses recoverable under the R&W Insurance Policy, or (ix)) if the Third Party Claim involves any criminal proceedings of any kind, or the potential for injunctive or equitable relief of any kind, the Indemnified Party shall have the right at all times to take over and assume control over the defense, settlement, negotiations or litigation relating to any such Third Party Claim at the sole cost of the Indemnifying Party, and the Indemnifying Party shall not have the right to assume control of, the defense, settlement, negotiations or litigation relating to any such Third Party Claim.
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Indemnified Party shall be free to pursue a legal action against the Indemnifying Party to enforce its right to indemnification for such Loss, subject to Section 11.12.
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Any claim for indemnification not first made on or prior to the date specified in this Section 10.05(a)-(c), as applicable, shall be irrevocably and unconditionally released and waived. So long as an Indemnified Party asserts a claim for indemnification under and in accordance with this Article X prior to the date specified in this Section 10.05(a)-(c), as applicable, such Indemnified Party shall be deemed to have preserved its rights to indemnification under this Article X regardless of when such claim is ultimately liquidated or resolved.
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MISCELLANEOUS
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counsel, investment bankers, advisors, accountants, brokers or other representatives and consultants and appraisal fees, costs and expenses) incurred by such Party in connection with the preparation, negotiation, execution and delivery of this Agreement and the other Transaction Documents, the performance of their respective obligations hereunder and thereunder, and the consummation of the transactions contemplated hereby and thereby.
If to Seller:
Stephen J. Williams
[***]
Email: ***@***
with a copy to (which shall not constitute notice):
Jones Walker LLP
201 St. Charles Ave.
New Orleans, Louisiana 70170-5100
Attention: Curtis R. Hearn
Email: ***@***
If to Purchaser:
Helix Alliance Decom, LLC
c/o Helix Energy Solutions Group, Inc.
3505 West Sam Houston Parkway North
Suite 400
Houston, Texas 77043
Attention: Ken Neikirk
Email: ***@***
with a copy to (which shall not constitute notice):
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Locke Lord LLP
600 Travis, Suite 2800
Houston, Texas 77002
Attention: Greg Heath
Email: ***@***
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interpreted as a limitation on, or an exclusive listing of, the items within that classification. Each reference in this Agreement to any Applicable Laws will be deemed to include such Applicable Laws as hereafter may be amended, supplemented or modified from time to time and any successor thereto, unless such treatment would be contrary to the express terms of this Agreement. Whenever any amount is stated in this Agreement in “Dollars” or by reference to the “$” symbol, such amount shall be United States dollars (unless a contrary intention appears) and will, when the context allows, include equivalent amounts in other currencies.
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each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart.
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name and nature, both at law and in equity, known or unknown, suspected or unsuspected, accrued or unaccrued, which have been or could have been asserted against any Released Person, which any Releasing Person has or ever had, which arise out of or in any way relate to events, circumstances or actions occurring, existing or taken prior to or as of the Closing; provided, however, that the Parties acknowledge and agree that this Section 11.15 does not apply to and shall not constitute a release of any rights or obligations arising under this Agreement or any other Transaction Document. Each Releasing Person hereby irrevocably covenants to refrain from, directly or indirectly, asserting any action, suit, proceeding or claim, or commencing, instituting, or causing to be commenced, any action, suit, proceeding or claim, of any kind against any Released Person, based upon any matter purported to be released hereby.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have executed this Equity Purchase Agreement as of the date first written above.
PURCHASER:
Helix Alliance Decom, LLC,
a Delaware limited liability company
By:/s/ Owen Kratz
Name:Owen Kratz
Title:Chief Executive Officer
[SIGNATURE PAGE TO EQUITY PURCHASE AGREEMENT]
SELLER:
/s/ Stephen J. Williams
Stephen J. Williams
[SIGNATURE PAGE TO EQUITY PURCHASE AGREEMENT]
HELIX (solely for purposes of Section 1.05(d) and Section 6.14 herein):
Helix Energy Solutions Group, Inc.,
a Minnesota corporation
By:/s/ Owen Kratz
Name:Owen Kratz
Title:Chief Executive Officer
[SIGNATURE PAGE TO EQUITY PURCHASE AGREEMENT]
ANNEX A
DEFINED TERMS
As used in the Equity Purchase Agreement to which this Annex A is attached and incorporated by reference therein, the following terms will have the meanings specified:
[***]
“2022 EBITDA” has the meaning set forth in Section 1.05(a).
“2023 EBITDA” has the meaning set forth in Section 1.05(b).
“Accounts Receivable” means all accounts receivable and work in process (including billed and unbilled) of the Companies.
“Accounts Payable” has the meaning set forth in Section 3.24.
“Accounting Arbitrator” has the meaning set forth in Section 1.04(b)(iv).
“Actual Closing Date Balance Sheet” has the meaning set forth in Section 1.04(b)(i).
“Actual Closing Date Cash Payment” has the meaning set forth in Section 1.04(b)(i).
“Actual Closing Items” has the meaning set forth in Section 1.04(b)(i).
“Actual Debt” has the meaning set forth in Section 1.04(b)(i).
“Actual Redemption Payments” has the meaning set forth in Section 1.04(b)(i).
“Actual Related Party Transaction Payments” has the meaning set forth in Section 1.04(b)(i).
“Actual Restricted Distributions” has the meaning set forth in Section 1.04(b)(i).
“Actual Company Transaction Expenses” has the meaning set forth in Section 1.04(b)(i).
“Actual Working Capital” has the meaning set forth in Section 1.04(b)(i).
“Affiliate” means, with respect to any Person, (a) any other Person directly or indirectly controlling, controlled by or under common control with the first Person, (b) if such first Person is an individual, (i) any member of the immediate family (including parents, spouses, domestic partners and children, including, for such purposes, adoptive or step-parents and adopted or step-children) (“Family Members”) of such individual, (ii) any trust of which said individual is the trustee or whose principal beneficiary is such individual or one or more Family Members, and (iii) any Person who is controlled by any of such individual’s Family Members or trust, and (c) if such first Person is a trust, any trustee of such trust or any beneficiary of such trust. For the purposes of this Agreement, “control,” when used with respect to any Person, means the possession, directly or indirectly, of the power to (1) vote ten percent (10%) or more of the securities having ordinary
Annex A-1
voting power for the election of directors or managers (or comparable positions) of such Person or (2) direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Affordable Care Act” has the meaning set forth in Section 3.12(a).
“Agreement” has the meaning set forth in the preamble.
“Alliance Energy Services” means Alliance Energy Services, LLC, a Louisiana limited liability company.
“Alliance Industry Holdings” has the meaning set forth in the recitals.
“Alliance Maritime Holdings” has the meaning set forth in the recitals.
“Alliance Offshore” means Alliance Offshore, L.L.C., a Louisiana limited liability company.
“Alliance Special Ventures Holdings” has the meaning set forth in the recitals.
“Alliance Vessel Leasing” has the meaning set forth in the recitals.
“Antitrust Laws” means the HSR Act, the Sherman Act, as amended, the Clayton Act, as amended, the Federal Trade Commission Act, as amended, and any other Applicable Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade.
“Applicable COVID Relief Laws” means all requirements of (x) COVID-19 Laws and any and all rules and regulations thereof or regulatory and procedural guidance related thereto, including those applicable to any loan or similar assistance offered pursuant to such COVID-19 Laws, and (y) the Small Business Act and any other Applicable Laws and regulatory and procedural guidance or requirements related to any loan or similar assistance offered pursuant to such Applicable Laws.
“Applicable Laws” means all applicable federal, state, local or foreign laws, statutes, rules, regulations, ordinances, directives, judgments, Orders (judicial or administrative), including all common law, decrees, injunctions and writs of any Governmental Entity or any similar provisions having the force or effect of law.
“Benefit Plan” includes all “employee benefit plans” (as defined in Section 3(3) of ERISA), “multiemployer plans” (as defined in Section 3(37) of ERISA), simplified employee pension, deferred compensation, incentive compensation, stock bonus, stock option, restricted stock, cash bonus, employee stock ownership, severance pay, golden parachute, cafeteria, flexible compensation, life insurance, or vacation plans or arrangements of any kind and any other employee benefit plans, programs or arrangements maintained by any Company or any of its ERISA Affiliates.
Annex A-2
“Business” means (i) the business of providing services in support of offshore upstream and midstream industries and oil and gas production, including offshore oil field decommissioning and reclamation services, project management services, engineered solutions and turnkey asset retirement obligation liability management, offshore infrastructure and inspection, maintenance and repair services, intervention services, offshore commercial diving and heavy lift services, marine and marine crewing services, and providing platform supply vessels, and (ii) any business substantially similar to or competitive with the business conducted by any Company during the twenty-four (24) month period immediately preceding the Closing Date.
“Business Day” means any day other than: (a) a Saturday, Sunday or federal holiday or (b) a day on which commercial banks in Houston, Texas are authorized or required to be closed.
“Buy-out Agreements” has the meaning set forth in Section 6.12(a)(i).
“CAA” means the Consolidated Appropriations Act, 2021.
“CARES Act” means the Coronavirus Aid, Relief, and Economic Security Act, Pub.L. 116–136 (116th Cong.) (Mar. 27, 2020), as amended.
“Cash” means cash and cash equivalents, as determined in accordance with GAAP, plus deposits in transit to the extent there has been a reduction of receivables on account thereof, and minus outstanding checks to the extent there has been a reduction of accounts payable on account thereof.
“Closing” means the consummation of the transactions contemplated by this Agreement.
“Closing Date” has the meaning set forth in Section 2.01.
“Closing Date Cash Payment” has the meaning set forth in Section 1.02(a).
“Closing Debt” means the amount of Debt of the Companies as of immediately prior to the Closing; provided, however, that such amount shall exclude any Related Party Transaction Payments.
“Closing Company Transaction Expenses” means the amount of Company Transaction Expenses as of immediately prior to the Closing.
“Closing Working Capital” means the Working Capital as of the effective time of the Closing.
“COBRA” has the meaning set forth in Section 3.12(d).
“Code” means the Internal Revenue Code of 1986, as amended.
“Common Stock” has the meaning set forth in Section 1.05(d).
“Company” or “Companies” have the meanings set forth in the recitals.
“Company Confidential Information” has the meaning set forth in Section 3.10(b)(i).
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“Company Employees” has the meaning set forth in Section 3.15(a).
“Company Intellectual Property Contract” means any Contract to which any Company is a party or by which any Company is bound that contains any assignment or license of, or covenant not to assert or enforce, any Intellectual Property right or that otherwise relates to any Company Intellectual Property developed by, with, or for any Company or used in its business, including all IP Agreements.
“Company Transaction Expenses” means the collective amounts payable by any Company (or for which any Company could become liable to pay, including as a result of Seller’s failure to pay any such amounts paid or payable by Seller directly) for all of out-of-pocket fees and expenses incurred in connection with the preparation, negotiation, execution and consummation of the transactions contemplated hereby (excluding the Redemption Payments and the Excluded Reorganization Expenses), including (a) all fees, expenses and disbursements of counsel, accountants, investment bankers, experts and consultants to any Company, including, without limitation, those set forth on Schedule III attached hereto, (b) any retention, bonus or similar compensatory amounts payable to any employees or service providers of any Company that become due and payable by any Company as a result of the consummation of the transactions contemplated hereby, including, without limitation, amounts payable under the agreements set forth on Schedule III attached hereto (including the employer portion of any Taxes associated with any of the foregoing payments), (c) Seller’s share of fifty percent (50%) of the fees, expenses and costs of the underwriter and broker associated with the procurement and binding of the R&W Insurance Policy, (d) Seller’s share of fifty percent (50%) of the filing fees associated with the filings pursuant to the HSR Act and (e) any and all obligations of any Company in connection with the Winger Agreement and the termination thereof.
“Consent” means any consent, order, approval, authorization or other action of, or any filing with or notice to or other action with respect to, any Governmental Entity or any other Person which is required for any of the execution, delivery or performance of the Agreement or any other Transaction Document, the consummation of transactions contemplated hereby or thereby, whether such requirement arises pursuant to any Applicable Laws or Contract, including any of the foregoing which is required in order to prevent a breach of or a default under or a termination or modification of any Contract, which right of breach, default, termination or modification results from the consummation of the transactions contemplated by this Agreement.
“Contract” means any contract, agreement (including, for the avoidance of doubt, purchase orders), right, option, warrant, right of first offer or refusal, commitment, indenture, mortgage, lease, pledge, note, bond, license, permit or other investment or obligation, whether written or oral.
“Copyrights” means all existing copyrights, including all renewals and extensions thereof, existing copyright registrations and applications for registration thereof, and existing non-registered copyrights.
“COVID-19 Law” shall mean the CARES Act, the Families First Coronavirus Response Act of 2020 or any other Applicable Laws intended to address the consequences of COVID-19.
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“COVID Related Deferrals” means any Liabilities, including Tax Liabilities, or other amounts for or allocable to any period, including any taxable period (or portion thereof), ending on or prior to the Closing Date the payment of which is deferred, on or prior to the Closing Date, to a period (or portion thereof) beginning after the Closing Date pursuant to any COVID-19 Law, including the CARES Act, CAA or any other Applicable Law or executive order or Presidential Memorandum (including the Presidential Memorandum described in IRS Notice 2020-65) related to COVID-19.
“Current Representation” has the meaning set forth in Section 11.16(a).
“Debt” means with respect to any Person, at any date, without duplication, (a) all obligations of such Person for borrowed money, including all principal thereof, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services, including any “earn-out” or similar payments, except trade payables incurred in the Ordinary Course of Business, (d) all obligations of such Person, contingent or otherwise, under a letter of credit or similar instrument, whether drawn or undrawn, (e) all capitalized lease obligations, (f) all other obligations of a Person which would be required to be shown as indebtedness on a balance sheet of such Person prepared in accordance with GAAP, (g) any portion of any loan or similar assistance pursuant to any Applicable COVID Relief Law, including the PPP Loans, that is not eligible for forgiveness or otherwise will not be forgiven, (h) all performance, warranty, decommissioning, importation and surety bonds for the benefit of such Person, (i) all obligations created or arising under any conditional sale or other title retention agreement, regardless of whether the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property, (j) all indebtedness of any other Person of the type referred to in clauses (a) through (i) above directly or indirectly guaranteed by such Person or secured by any assets of such Person, whether or not such Indebtedness has been assumed by such Person, and (k) all interest, premiums, fees (including termination payments), expenses, overdrafts and penalties associated with any of the foregoing clauses (a) through (j).
“Deductible” has the meaning set forth in Section 10.04(a).
“Disclosure Schedule” means the disclosure schedule attached to this Agreement, which is arranged in sections corresponding to the numbered and lettered sections and subsections of this Agreement.
“Dispute Notice” has the meaning set forth in Section 1.04(b)(iii).
“Disputed Items” has the meaning set forth in Section 1.04(b)(iii).
“DNV Report” has the meaning set forth in Section 5.07.
“DOJ” has the meaning set forth in Section 6.04(a).
“Dollars” has the meaning set forth in Section 11.06.
“Domain Names” has the meaning set forth in Section 3.10(a)(v).
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“Dormant Entities” has the meaning set forth in the recitals.
“Earn-Out Consideration” means the amount, if positive, equal to (i) four (4), multiplied by (ii) the quotient of (A) the difference of (x) fifty percent (50%) of the aggregate sum of the 2022 EBITDA and the 2023 EBITDA, minus (y) the 2021 EBITDA, divided by (B) two (2). An illustrative example of the calculation of the Earn-Out Consideration is set forth on Exhibit A-3.
“Earn-Out Payment Date” has the meaning set forth in Section 1.05(e).
“Earn-Out Payment Notice” has the meaning set forth in Section 1.05(e).
“Earn-Out Period” has the meaning set forth in Section 1.05(i).
“Earn-Out Shares” has the meaning set forth in Section 1.05(e).
“Earn-Out Statement” has the meaning set forth in Section 1.05(a).
“EBITDA” means, as of any period of evaluation, the net income of the Companies before income taxes, net interest expense, gain or loss on extinguishment of long-term debt, net other income or expense, depreciation and amortization expense, non-cash impairment losses on goodwill and other long-lived assets and gains and losses on equity investments, in each case only to the extent income in the determination of net income, all as derived from the audited financial statements of the Companies for the applicable period of calculation; provided, however, EBITDA shall in no event include (i) any one-time financial impact resulting from the application of purchase accounting to the transactions contemplated by this Agreement, (ii) any incremental EBITDA of any business or vessel (other than a vessel that replaces a vessel of the Companies that was in class as of the Closing Date) acquired by any Company (whether pursuant to a purchase of Equity Interests, purchase of all or substantially all assets, merger, consolidation, recapitalization or other similar transaction) following the Closing Date, (iii) allocations of corporate overhead, management or similar fees of Purchaser, Helix or their respective Affiliates (excluding the Companies), and (iv) allocations of any third party accounting or legal expenses of Purchaser, Helix or their respective Affiliates (excluding the Companies) customarily incurred in connection with the respective obligations of the foregoing Persons under the Exchange Act, or the rules for listed companies of the NYSE or NASDAQ, as applicable; provided, further, that the following expenses shall be added back to earnings of the Companies in calculating EBITDA: (a) expenses or losses incurred by the Companies in connection with responding to a catastrophic event (e.g., hurricane expenses) to the extent such expenses or losses are incurred in 2022 or 2023, but solely to the extent such expenses or losses are subject to reimbursement or recovery under insurance policies, in each case, (x) as calculated net of any costs or expenses in connection with securing or obtaining such amounts or proceeds, including any applicable deductible, co-payment, or retention amount and (y) in the event such amounts or proceeds are finalized prior to the expiration of the Earn-Out Period, not to exceed the amount of proceeds with respect to such expenses or losses actually paid to such Person under such insurance policies; provided, that, for the avoidance of doubt, the foregoing shall not include insurance proceeds received with respect to expenses having occurred prior to January 1, 2022, (b) the amount of any non-cash losses of the Companies (e.g., losses from assets sold during the period of evaluation), and (c) transaction expenses of the Companies (e.g., sale or financing transaction expenses) incurred in connection with the
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transactions contemplated by this Agreement; and provided further, that any extraordinary items of income or expenses of the Companies should be excluded from the calculation of EBITDA, including without limitation, (X) gains or losses attributable to the sale of assets, (Y) income from the Sanare Receivable or (Z) cancellation of debt income. An illustrative example calculation of EBITDA using the Financial Statements for the year ended December 31, 2021 is set forth as Exhibit A-2.
“Effective Date” has the meaning set forth in the preamble.
“Environmental Matter” means any act, omission, event, occurrence, condition or circumstance in respect of any Company or any of its current or former facilities or properties, the Business or the assets or properties of any Company and relating to any Environmental Requirement, Hazardous Materials, Environmental Permits or other related matter.
“Environmental Permits” means all Permits necessary for the ownership, use and/or operation of the Companies’ facilities, locations, properties, and the Business to comply with Environmental Requirements.
“Environmental Requirements” means all Applicable Laws and obligations under Contracts concerning pollution, protection of human health or safety, protection of the environment, or the generation, treatment, storage, presence, disposal, discharge, Release, threatened Release, handling, management, reporting, labeling, investigation, monitoring or cleanup of, or exposure to or injury by any Hazardous Materials including, but not limited to, the federal Clean Water Act, Comprehensive Environmental Response, Compensation and Liability Act, the Clean Air Act, and Resource Conservation and Recovery Act and all state statutes enacted to implement these requirements of federal law and all analogous statutes and regulations enacted under federal, state or local laws.
“Equity Interests” means (a) with respect to any Person that is a corporation, any and all shares, interests, participation or other equivalents (however designated and whether or not voting) of corporate stock, including the common stock and preferred stock of such Person, (b) with respect to any Person that is a general partnership or limited partnership, any and all partnership interests or other equity interests of such Person, (c) with respect to any Person that is a limited liability company, any and all membership interests or other equity interests of such Person, and (d) with respect to any other Person (other than an individual), any and all equity interests of such Person.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that together with any Company has ever been deemed to be a “single employer” within the meaning of Section 4001 of ERISA or Section 414 of the Code.
“Estimated Closing Date Balance Sheet” has the meaning set forth in Section 1.04(a).
“Estimated Closing Date Cash Payment” has the meaning set forth in Section 1.04(a).
“Estimated Closing Items” has the meaning set forth in Section 1.04(a).
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“Estimated Debt” has the meaning set forth in Section 1.04(a).
“Estimated Redemption Payments” has the meaning set forth in Section 1.04(a).
“Estimated Related Party Transaction Payments” has the meaning set forth in Section 1.04(a).
“Estimated Restricted Distributions” has the meaning set forth in Section 1.04(a).
“Estimated Company Transaction Expenses” has the meaning set forth in Section 1.04(a).
“Estimated Working Capital” has the meaning set forth in Section 1.04(a).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Excluded Reorganization Expenses” means the collective amounts, not to exceed $50,000.00, payable by any Company for (i) all reasonable and documented out-of-pocket fees, expenses or disbursements of counsel and (ii) all out-of-pocket fees or expenses directly incurred to file any amendment or other modification to Organizational Documents of any Company with the applicable Governmental Entity, in each case, as incurred in connection with the preparation, negotiation, execution and consummation of the Reorganization, it being understood and agreed that any amount of the foregoing fees, expenses or disbursements in excess of $50,000.00 shall not constitute Excluded Reorganization Expenses for purposes of this Agreement and shall constitute Company Transaction Expenses.
“Filing Deadline” has the meaning set forth in Section 1.05(f)(ii).
“Final Closing Date Cash Payment” has the meaning set forth in Section 1.04(b)(iv).
“Final Debt” has the meaning set forth in Section 1.04(b)(iv).
“Final Redemption Payments” has the meaning set forth in Section 1.04(b)(iv).
“Final Related Party Transaction Payments” has the meaning set forth in Section 1.04(b)(iv).
“Final Restricted Distributions” has the meaning set forth in Section 1.04(b)(iv).
“Final Company Transaction Expenses” has the meaning set forth in Section 1.04(b)(iv).
“Final Working Capital” has the meaning set forth in Section 1.04(b)(iv).
“Financial Statements” has the meaning set forth in Section 3.04(a).
“Fraud” means actual fraud by a party with respect to the making of any representation or warranty by such party in this Agreement (as applicably modified by the Disclosure Schedule), which involves a knowing and intentional misrepresentation by such party of such representation or warranty with the intent of inducing another party to enter into this Agreement and upon which
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such other party has relied to its detriment (as opposed to any fraud claim based on constructive knowledge, negligent or reckless misrepresentation or a similar theory under Applicable Laws).
“FTC” has the meaning set forth in Section 6.04(b).
“Fundamental Representations” means the representations and warranties set forth in Section 3.01 (Due Organization; Qualification), Section 3.02 (Authorization; Noncontravention), Section 3.03 (Capitalization), Section 3.08 (Taxes), Section 3.21 (Broker’s or Finder’s Fee), Section 4.01 (Authorization; Noncontravention); Section 4.03 (Ownership) and Section 4.05 (Broker’s or Finder’s Fee).
“GAAP” means United States generally accepted accounting principles, applied on a consistent basis.
“GOM ES” has the meaning set forth in the recitals.
“GOM VL” has the meaning set forth in the recitals.
“Governmental Entity” means any government, governmental department, commission, board, bureau, agency, court or other instrumentality, whether foreign or domestic, of any country, nation, republic, federation or similar entity or any state, province, county, parish or municipality, jurisdiction or other political subdivision thereof.
“Hazardous Materials” means any chemicals, materials, wastes or substances that are defined, regulated, determined or identified as “hazardous substances,” “hazardous materials,” “hazardous waste,” “extremely hazardous substances,” “solid waste,” “regulated substance,” “air contaminant,” “pollutant” or “contaminant” pursuant to any Environmental Requirement, and further including any chemical, material, waste or substance that is or contains (A) petroleum, oil or any fraction thereof, (B) explosives, (C) radioactive materials (including naturally occurring radioactive materials), or (D) perfluoroalkyl and polyfluoroalkyl substances.
“Heavy Lift Holdings” has the meaning set forth in the recitals.
“Helix” has the meaning set forth in the recitals.
“Helix SEC Documents” has the meaning set forth in Section 5.06.
“Holdback Amount” and “Holdback Amounts” have the meanings set forth in Section 6.12(b).
“Holdback Deadline” has the meaning set forth in Section 6.12(c).
“Holdings” has the meaning set forth in the recitals.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and any rules and regulations promulgated thereunder.
“Indemnified Party” has the meaning set forth in Section 10.03(a).
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“Indemnifying Party” has the meaning set forth in Section 10.03(a).
“Indemnity Notice” has the meaning set forth in Section 10.03(b).
“Intellectual Property” means all Copyrights, Internet Assets, patents, Software, Trade Secrets, Trademarks, IP Agreements, and Moral Rights, and all other concepts, inventions (whether or not protected under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protected under copyright laws), publicity rights, names, know-how, algorithms, models, ideas (whether or not protected under trade secret laws), and all other intellectual and industrial property rights of any sort as they exist anywhere in the world.
“Interests” has the meaning set forth in the recitals.
“Internet Assets” means domain names, Internet Protocol addresses and other computer identifiers, websites, web pages and other similar rights and items.
“Inventory” means all inventories, raw materials, packaging materials, work in process, supplies and finished goods (including warehoused inventories and inventories covered by purchase orders), spare parts, maintenance, replacement and component parts), wherever located or related to the Business, including inventory on order for or in transit to or from any Company.
“IP Agreements” means all licenses, sublicenses, assignments, and other Contracts relating to Intellectual Property.
“Knowledge of Seller” (and any derivation thereof, whether or not capitalized) means (a) in the context of any representation or warranty set forth in Article IV, that Seller has actual knowledge, after due inquiry, of such fact or matter, and (b) in the context of any representation or warranty set forth in Article III, that Seller or Chris Winger had actual knowledge, after due inquiry, of such fact or matter, or that Eric Trosclair had actual knowledge of such fact or matter.
“Larose Lease Agreement” means that certain lease agreement, effective as of January 1, 2022, by and between Williams Properties, L.L.C. and Alliance Offshore.
“Latest Balance Sheet Date” means December 31, 2021.
“Leased Real Property” means any property of any Company under any lease, sublease, license, concession or other agreement, pursuant to which any Company holds a leasehold or sub-leasehold estate in, or is granted the right to use or occupy, any land, buildings, improvements, fixtures or other interest in real property which is used in the operation of the Business.
“Leases” has the meaning set forth in Section 3.06(b).
“Liability” or “Liabilities” means any debt, obligation, commitment, duty or liability of any nature (including STRICT LIABILITY and any unknown, undisclosed, unfixed, un-liquidated, unsecured, un-matured, un-accrued, contingent, conditional, joint, several or secondary liability).
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“Lien” means any mortgage, pledge, hypothecation, lien (statutory or otherwise), security agreement, security interest, easement, covenant, restriction or other encumbrance of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any lease having substantially the same effect as any of the foregoing and any assignment or deposit arrangement in the nature of a security device).
“Losses” means any and all losses, Liabilities, damages, fees, costs and expenses of every kind and nature (including reasonable costs of investigation, fees and expenses of attorneys, accountants, financial advisors and other experts, court costs and other expenses of litigation); provided, however, that Losses (a) shall exclude special or punitive damages, except to the extent such damages are required to be paid by Purchaser or its Affiliates after the Closing to a Third Party (including any Governmental Entity) in a Third Party Claim or (b) arising solely out of a claim for indemnification pursuant to Section 7.02, Section 10.01(c), Section 10.01(d) or Section 10.01(e) shall exclude lost profits and diminution in value damages.
“Material Adverse Effect” means (i) a material adverse effect on the business, assets, Liabilities, condition (financial or otherwise) or results of operations of the Companies (taken as a whole) or the Business, or (ii) a material adverse effect on the ability of any Company or Seller to consummate the transactions contemplated by this Agreement or perform their obligations under this Agreement or the other Transaction Documents; except with respect to clauses (i) and (ii), other than an effect arising out of or attributable to (a) general economic or political conditions, (b) conditions generally affecting the industry in which the Business operates; (c) any changes in financial or securities markets in general; (d) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (e) any action required to be taken by this Agreement or at the specific direction of Purchaser; (f) any changes in applicable Laws or accounting rules, including GAAP or Applicable COVID Relief Laws; or (g) the public announcement (including through public filings with regulatory or contracting agencies, to the extent required by Applicable Laws to effect the transactions contemplated by this Agreement), pendency or completion of the transactions contemplated by this Agreement; provided further, however, that events or changes referred to in clauses (a) through (d) and (f) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on any Company compared to other participants in the industry in which the Business operates.
“Material Contract” has the meaning set forth in Section 3.09(a).
“Material Customer” has the meaning set forth in Section 3.17(a).
“Material Supplier” has the meaning set forth in Section 3.17(b).
“Minority Equityholders” means GOM VL, GOM ES, and Priority Energy Holdings, collectively.
“Moral Rights” means any right to object to any distortion or other modification of a work, and any similar right, existing under the law of any country, or under any treaty.
“Multiemployer Plan” has the meaning set forth in Section 3.12(b).
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“NASDAQ” means the National Association of Securities Dealers Automated Quotations.
“Notice” has the meaning set forth in Section 11.03.
“NYSE” means The New York Stock Exchange.
“Operational Cap” has the meaning set forth in Section 10.04(b)(i).
“Order” means any order, judgment, injunction, ruling, or award issued, made, entered or rendered by any court, administrative agency or other Governmental Entity or by any arbitrator.
“Ordinary Course of Business” means the ordinary course of business of an entity, consistent with past custom and practice both in respect of nature, frequency and magnitude.
“Organizational Document” means (a) with respect to a corporation, its articles or certificate of incorporation and bylaws (including any amendments thereto), (b) with respect to a partnership, its partnership agreement (including any amendments thereto), (c) with respect to a limited liability company, its articles of organization or certificate of formation and operating agreement or limited liability company agreement (including any amendments thereto), (d) with respect to a trust, the trust agreement or indenture (including any amendments thereto) and (e) with respect to any other entity, the documents governing the organization and operation thereof.
“Outside Date” has the meaning set forth in Section 9.01(e).
“Owned Real Property” has the meaning set forth in Section 3.06(a).
“Party” and “Parties” has the meaning set forth in the preamble.
“Payoff Letters” has the meaning set forth in Section 1.03(a)(ii).
“Permit” means any permit, license, registration, identification number, franchise, consent, certificate, confirmation, permission, endorsement, waiver, certification or other authorization or approval issued, granted, given or otherwise made available by or under the authority of any Governmental Entity or pursuant to any Applicable Laws, including the relevant application therefor.
“Permitted Distributions” means (a) a one-time distribution from the Companies to Seller of an amount equal to $1,716,885.00; (b) distribution from the Companies to Seller with respect to the satisfaction of the Pregeant and Chouest Redemption Payment; and (c) distributions from the Companies to Seller of amounts received by the Companies in connection with the Sanare Receivable, less any costs or expenses of the Companies in connection with any amounts so received (provided, however, that, if the Companies receive any payments in connection with the Sanare Receivable following the Closing Date, Seller shall have a right to all such payments, and Purchaser shall remit all such payments to Seller within five (5) business days following receipt of such payment by the Companies).
“Permitted Liens” means (a) statutory Liens for current Taxes not yet due and payable or which are being properly contested in appropriate proceedings and for which appropriate reserves
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have been established on the books of a Person, (b) mechanics’, carriers’, workers’, repairers’ and other similar liens imposed by law arising or incurred in the Ordinary Course of Business for obligations that are (i) not yet due and payable or (ii) being contested in good faith by appropriate proceedings and for which there are adequate reserves on the books of a Person, (c) in the case of leases of vehicles, rolling stock and other personal property, encumbrances that do not materially impair the operation of the Business at the facility at which such leased equipment or other personal property is located, (d) easements, covenants, rights-of-way, restrictions of record and other similar encumbrances or charges on the Real Property that do not secure any monetary obligation and do not interfere with the operation of the Business in the Ordinary Course of Business, (e) Liens in favor of any landlord or lessor under leases of real or personal property arising from the provisions of such leases, (f) pledges or deposits made in the Ordinary Course of Business in connection with workers’ compensation, unemployment insurance and other types of social security, (g) deposits to secure the performance of bids, contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the Ordinary Course of Business, (h) zoning regulations and restrictive covenants, conditions, easements, or other restrictions of record which are not violated by the current use or occupancy of the Real Property or the operation of the Business thereon and that do not detract in any material respect from the value of the property and do not materially and adversely affect, impair or interfere either individually or in the aggregate with the use of any property affected thereby, (i) licenses or other rights granted in connection with intellectual property rights, (j) Liens set forth on Schedule IV that will be released on or prior to the Closing, including, without limitation, any Liens securing monetary obligations required to be paid and cancelled by the Seller on or before the Closing, and (k) with respect to vessels owned by the Companies:
(i)Liens for crew’s wages (1) for fifteen (15) days after the termination of a voyage, but only so long as, and to the extent that, such are discharged in the Ordinary Course of Business consistent with prudent industry practices, or (2) which shall then be contested in good faith by appropriate action promptly initiated and diligently conducted, if such reserve as shall be required by GAAP shall have been made therefor and so long as such deferment in payment shall not subject such vessels to sale, forfeiture or loss,
(ii)Liens for general average (1) which are unclaimed, (2) for thirty (30) days after having been claimed, or (3) which shall then be contested in good faith by appropriate action promptly initiated and diligently conducted, if such reserve as shall be required by GAAP shall have been made therefor and so long as such deferment in payment shall not subject such vessels to sale, forfeiture or loss,
(iii)Liens for salvage, whether voluntary or contract, (1) which are unclaimed, (2) for thirty (30) days after having been claimed, or (3) which shall then be contested in good faith by appropriate action promptly initiated and diligently conducted, if such reserve as shall be required by GAAP shall have been made therefor and so long as such deferment in payment shall not subject such vessels to sale, forfeiture or loss,
(iv)Liens for the wages of a stevedore when employed directly by a Company, or the operator, master or agent of such vessels (1) to the extent that, such are discharged in the Ordinary Course of Business consistent with prudent industry practices, and apply to amounts that are not
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due and payable as of the date hereof, or (2) which shall then be contested in good faith by appropriate action promptly initiated and diligently conducted, if such reserve as shall be required by GAAP shall have been made therefor and so long as such deferment in payment shall not subject such vessels to sale, forfeiture or loss,
(v)Liens for repairs or with respect to any changes made in such vessels (1) to the extent that, such are discharged in the Ordinary Course of Business consistent with prudent industry practices, and apply to amounts that are not due and payable as of the date hereof, or (2) which shall then be contested in good faith by appropriate action promptly initiated and diligently conducted, if such reserve as shall be required by GAAP shall have been made therefor and so long as such deferment in payment shall not subject such vessels to sale, forfeiture or loss,
(vi)Liens for damages arising out of a maritime tort (1) which are unclaimed, (2) which are fully covered by insurance and for which the insurers have not issued a reservation of rights letter, or (3) which shall then be contested in good faith by appropriate action promptly initiated and diligently conducted, if such reserve as shall be required by GAAP shall have been made therefor and so long as such deferment in payment shall not subject such vessels to sale, forfeiture or loss, and
(vii)Liens for necessaries, or in connection with any other obligation giving rise to lien rights not included in (i) through (v) above, (1) to the extent that, such are discharged in the Ordinary Course of Business consistent with prudent industry practices, and apply to amounts that are not due and payable as of the date hereof, or (2) which shall then be contested in good faith by appropriate action promptly initiated and diligently conducted, if such reserve as shall be required by GAAP shall have been made therefor and so long as such deferment in payment shall not subject such vessels to sale, forfeiture or loss; and
(viii)Liens of any charterer or subcharterer of such vessels (1) which are unclaimed, (2) to the extent that, such are discharged in the Ordinary Course of Business consistent with prudent industry practices, and apply to amounts that are not due and payable as of the date hereof, or (3) which shall then be contested in good faith by appropriate action promptly initiated and diligently conducted, if such reserve as shall be required by GAAP shall have been made therefor.
“Person” means an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or any Governmental Entity.
“Personal Data” or “Personal Information” shall have the meaning of such terms or like terms set forth in each of the Applicable Laws that describes, covers or defines data that identifies or can be used to identify individuals.
“Post-Closing Representation” has the meaning set forth in Section 11.16(a).
“PPP Loans” means (i) that certain Paycheck Protection Program Loan by JPMorgan Chase Bank, N.A. to Alliance Energy Services, LLC in the principal amount of $2,946,242.00, which amount was forgiven in full on August 11, 2021, (ii) that certain Paycheck Protection Program Loan by JPMorgan Chase Bank, N.A. to Alliance Offshore, L.L.C. in the principal amount of $3,302,525.00, which amount was forgiven in full on August 11, 2021, (iii) that certain Paycheck
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Protection Program Loan by JPMorgan Chase Bank, N.A. to Triton Diving Services, LLC in the principal amount of $1,772,532.00, which amount was forgiven in full on July 30, 2021, and (iv) the related documents executed and delivered in connection therewith.
“Pre-Closing Date Tax Period” means any Tax period (or a portion thereof) ending on or before the Closing Date.
“Pregeant and Chouest Redemption Payments” has the meaning set forth in Section 3.04(d).
“Priority Energy Holdings” has the meaning set forth in the recitals.
“Priority Holdback Amount” has the meaning set forth in Section 6.12(b).
“Proceeding” shall mean any claim, action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), investigation, inquiry, audit, examination or hearing commenced, brought, conducted or heard by or before any Governmental Entity or any arbitrator.
“Purchase Price” has the meaning set forth in Section 1.02.
“Purchase Price Cap” has the meaning set forth in Section 10.04(b)(ii).
“Purchase Price Deficit” has the meaning set forth in Section 1.04(c)(i).
“Purchase Price Excess” has the meaning set forth in Section 1.04(c)(ii).
“Purchaser” has the meaning set forth in the preamble.
“Purchaser Closing Statement” has the meaning set forth in Section 1.04(b)(i).
“Purchaser Indemnified Parties” means Purchaser and its Affiliates (which, for the avoidance of doubt, includes each Company from and after the Closing) and their respective officers, directors, managers, shareholders, members, partners, employees, agents, Affiliates, attorneys and their representatives.
“R&W Insurance Policy” has the meaning set forth in Section 6.11.
“Real Property” has the meaning set forth in Section 3.06(b).
“Redemption Payments” means the collective amounts paid or payable by any Company (or for which any of them could become liable to pay) in connection with the Reorganization, including, without limitation, amounts paid or payable with respect to the termination, redemption or repurchase of the agreements, warrants, or Equity Interests of any Company as described on Schedule I attached hereto; provided, however, that the Redemption Payments shall not include any of the Excluded Reorganization Expenses.
“Registered Company Intellectual Property” has the meaning set forth in Section 3.10(a)(i).
Annex A-15
“Related Parties” means any Company, on the one hand, and Seller, any other Company, any of the directors, partners, managers, employees, officers or equityholders of the foregoing, or any of the respective Affiliates of the foregoing, on the other hand.
“Related Party Balances” means all payables, receivables, balances, Debt or amounts between or among any Related Parties, including all interest, premiums, fees (including termination payments), expenses, overdrafts and penalties associated with any of the foregoing, but excluding any payables of any Company owed under or pursuant to the Larose Lease Agreement.
“Related Party Transaction Payments” means the collective amounts paid or payable by any Company (or for which any of them could become liable to pay) with respect to the Related Party Balances on or after the Latest Balance Sheet Date.
“Release” shall mean any releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, disposing, migrating or dumping of Hazardous Materials into the air, water, groundwater, soil or improvements, whether intentional or unintentional, foreseen or unforeseen.
“Released Person” has the meaning set forth in Section 11.15.
“Releasing Person” has the meaning set forth in Section 11.15.
“Reorganization” has the meaning set forth in the recitals.
“Reorganization Documents” has the meaning set forth in Section 6.12(a).
“Restricted Distributions” means any declaration or payment of any dividends or any distributions or other payments with respect to any of the Equity Interests of any Company, but excluding (i) the Permitted Distributions, and (ii) the Redemption Payments.
“Restricted Period” has the meaning set forth in Section 6.09(c)(i).
“Restricted Territory” means anywhere within the geographic locations set forth on Schedule II attached hereto, so long as Purchaser or one of its Affiliates (which, for the avoidance of doubt, includes each Company from and after the Closing) carries on the Business within such geographic locations.
“Retained Communications” has the meaning set forth in Section 11.16(b).
“Sanare Receivable” means any amounts owed by Sanare Energy Partners, LLC to the Companies in connection with the account receivable of Sanare Energy Partners, LLC in the approximate amount of One Million One Hundred Thousand and No/100 Dollars ($1,100,000.00), which amount was written off previously by the Companies in its financial statements as bad debt.
“SEC” has the meaning set forth in Section 1.05(f)(ii).
“Secondary Buy-out Agreement” has the meaning set forth in Section 6.12(c).
Annex A-16
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Seller” has the meaning set forth in the preamble.
“Seller Indemnified Parties” means the Seller and his Affiliates and their respective officers, directors, managers, shareholders, members, partners, employees, agents, Affiliates, attorneys and their representatives.
“Service Liability Claim” has the meaning set forth in Section 3.24(a).
“Software” means any computer software programs, Source Code, object code, scripts, data and documentation relating thereto, formulae and algorithms that relate to or are otherwise material to the operation of the Business.
“Source Code” means the source code for software and all related compiler command files, build scripts, scripts relating to the operation and maintenance of such application, application programming interface (API), graphical user interface (GUI), object libraries, all relevant instructions on building the object code of such application, and all documentation relating to the foregoing, such that collectively the foregoing will be sufficient to enable an individual possessing reasonable skill and expertise in computer software and information technology to build, load and operate the machine-executable object code of such application, to maintain and support such application and to effectively use all functions and features of such software.
“Specific Cap” has the meaning set forth in Section 10.04(b)(iii).
“Squadron” means Squadron Medical Finance Solutions LLC, a Delaware limited liability company.
“Squadron Holdback Amount” has the meaning set forth in Section 6.12(b).
“Staff” has the meaning set forth in Section 1.05(f)(ii).
“Straddle Period” has the meaning set forth in Section 7.03.
“Subsidiary” means, with respect to any Person, (a) any corporation fifty percent (50%) or more of whose stock of any class or classes having by the terms thereof voting power to elect a majority of the directors or managers (or comparable positions) of such corporation (irrespective of whether or not at the time of determination stock of any class or classes of such corporation has or might have voting power by reason of the happening of any contingency) is at the time owned by such Person, directly or indirectly through Subsidiaries, and (b) any partnership, limited liability company, association, joint venture, trust or other entity in which such Person, directly or indirectly through Subsidiaries, is either a general partner, has a fifty percent (50%) or greater equity interest at the time or otherwise owns a controlling interest.
“Target Working Capital” shall mean an amount equal to $20,000,000.00.
Annex A-17
“Tax” (and, with correlative meaning, “Taxes,” “Taxable” and “Taxing”) means any net income, capital gains, gross income, gross receipts, sales, use, transfer, ad valorem, franchise, margin, profits, license, capital, capital stock, withholding, payroll, estimated, employment, unemployment, excise, goods and services, severance, stamp, occupation, premium, property, social security, disability, environmental (including Code Section 59A), alternative or add-on, value added, service, service use, wealth, net worth, registration, windfall profits or other tax or customs duties or amount imposed by any Governmental Entity, or any interest, any penalties, additions to tax or additional amounts incurred or accrued under Applicable Law with respect to Taxes or properly assessed or charged by any Governmental Entity.
“Tax Return” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule, amendment or attachment thereto, required or permitted to be submitted to a Governmental Entity or Third Party.
“Termination Fee” has the meaning set forth in Section 9.01(f).
“Third Party Claims” means any Proceeding initiated by a Third Party.
“Third Party” means any Person that is not (a) a Party or (b) an Affiliate of a Party.
“Trade Secrets” means any trade secrets and other confidential and proprietary information, including, but not limited to, unpatented inventions, research records, processes, procedures, formulae, know-how, blue prints, designs, plans, inventions, databases and confidential business information.
“Trademarks” means all trade names, trademarks, service marks, trade dress, brand names, designs, jingles, slogans, logos, or corporate names, whether registered or unregistered, and all registrations and applications thereof (including, in each case, the goodwill associated therewith).
“Transaction Documents” means this Agreement, the Employment Agreement, and each other agreement, document, certificate or instrument delivered pursuant hereto or thereto.
“Transfer Taxes” has the meaning set forth in Section 7.01.
“Triton Diving Services” means Triton Diving Services, LLC, a Louisiana limited liability company.
“Uncollected Accounts Receivable” has the meaning set forth in Section 1.04(b)(i).
“Unresolved Disputed Items” has the meaning set forth in Section 1.04(b)(iv).
“U.S. Coastwide Trade” has the meaning set forth in Section 5.05.
“Voluntary Disclosure Proceedings” has the meaning set forth in Section 7.08.
“VWAP” has the meaning set forth in Section 1.05(e).
“WARN” has the meaning set forth in Section 3.15(c).
Annex A-18
“Warrants” means collectively, (i) that certain Warrant to Purchase Units of Membership Interests, issued by Alliance Maritime Holdings to Squadron on June 8, 2021, (ii) that certain Warrant to Purchase Units of Membership Interests, issued by Alliance Industry Holdings to Squadron on June 8, 2021, (iii) that certain Warrant to Purchase Units of Membership Interests, issued by Whitney Maritime Holdings to Squadron on June 8, 2021, (iv) that certain Warrant to Purchase Units of Membership Interests, issued by Whitney Clare Holdings to Squadron on June 8, 2021, and (v) that certain Warrant to Purchase Units of Membership Interests, issued by Heavy Lift Holdings to Squadron on August 31, 2021, in each case, including all amendments, supplements, restatements, or other modifications thereto.
“Whitney Clare Holdings” has the meaning set forth in the recitals.
“Whitney Maritime Holdings” has the meaning set forth in the recitals.
“Winger Holdback Amount” has the meaning set forth in Section 6.12(b).
“Winger Parties” has the meaning set forth in Section 6.12(b).
“WKSI” has the meaning set forth in Section 1.05(f)(i).
“Working Capital” means, as of any given date, an amount (which may be positive or negative) equal to the current assets of the Companies as of such date minus the current liabilities of the Companies as of such date; provided, however, that (a) current assets shall (x) include Cash and (y) not include (i) any Related Party Balances, (ii) any deferred Taxes or (iii) any inventory to the extent aggregate inventory equals or exceeds $1,000,000, and (b) current liabilities shall not include (i) any Debt to the extent such Debt is paid off at or prior to the Closing, (ii) Company Transaction Expenses to the extent paid at or prior to the Closing, or (iii) any deferred Taxes (other than COVID-related deferred payroll Taxes). Working Capital, current assets and current liabilities shall be calculated in accordance with the illustrative example set forth on Exhibit A-1, and to the extent not addressed in Exhibit A-1, in accordance with GAAP.
Annex A-19
