As filed with the Securities and Exchange Commission on June 2, 2022
Registration No. 333-257281
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-1 ON JUNE 27, 2001
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DIAMOND OFFSHORE DRILLING, INC.
(Exact
(Exact Name of Registrant as Specified in itsIts Charter)
| Delaware | 76-0321760 | |
| (State or Other Jurisdiction Incorporation or Organization) | (I.R.S. Employer Identification Number) |
15415 KATY FREEWAY
HOUSTON, TEXASKaty Freeway
Houston, Texas 77094
(281) 492-5300
(Address,
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant'sRegistrant’s Principal Executive Offices)
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WILLIAM C. LONG, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
DIAMOND OFFSHORE DRILLING, INC.
David L. Roland, Esq.
Senior Vice President, General Counsel and Secretary
Diamond Offshore Drilling, Inc.
15415 KATY FREEWAY
HOUSTON, TEXASKaty Freeway, Suite 100
Houston, Texas 77094
(281) 492-5300
(Name,
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
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Copy to:
SHELTON
Shelton M. VAUGHAN, ESQ.
WEIL, GOTSHAL & MANGESVaughan, Esq.
Duane Morris LLP
700 LOUISIANA, SUITE 1600
HOUSTON, TEXAS 77002
1330 Post Oak Blvd., Suite 800
Houston, Texas 77056
(713) 546-5000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable402-3900
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ]
box: ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X]
box: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] _____________
☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] _____________
☐
If delivery ofthis Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the prospectus is expected to be madeCommission pursuant to Rule 434,
please462(e) under the Securities Act, check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of computing the amount of the registration
feesecurities pursuant to Rule 457(o)413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended.
(2) This fee is calculatedamended, or until this Registration Statement shall become effective on the basis of the offering price of the debentures.
(3) Includes 9,382,988 shares of common stock issuable upon conversion of the
debentures at the rate of 20.3978 shares of common stock for each $1,000
principal amount of the debentures. Pursuant to Rule 416 undersuch date as the Securities Act, such number of shares of common stock registered hereby
shall include an indeterminate number of shares of common stock thatand Exchange Commission, acting pursuant to said Section 8(a), may determine.
Explanatory Note
This Pre-Effective Amendment No. 2 to Form S-1 on Form S-3 is being filed by Diamond Offshore Drilling, Inc. (or the Company) to convert the Registration Statement on Form S-1 (File No. 333-257281) filed by the Company with the Securities and Exchange Commission on June 22, 2021, as amended by Amendment No. 1 thereto filed by the Company on August 27, 2021, into a registration statement on Form S-3.
The information in this prospectus is not complete and may be issuedchanged. A registration statement relating to these securities has been filed with the Securities and Exchange Commission. The selling stockholders may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in connection with a stock split, stock dividend, recapitalizationany state or similar event.
(4) Pursuantother jurisdiction where the offer or sale is not permitted.
Subject to Rule 457(i), there is no additional filing fee with respectcompletion, dated June 2, 2022
Prospectus
Diamond Offshore Drilling, Inc.
20,229,065 Shares of Common Stock
This prospectus relates to the sharesoffer and sale by the selling stockholders identified in this prospectus of common stock issuable upon conversion of the debentures
because no additional consideration will be received in connection with the
exercise of the conversion privilege.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING SECURITYHOLDERS MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN
OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
SUBJECT TO COMPLETION, DATED JUNE 27, 2001
PROSPECTUS
(DIAMOND OFFSHORE DRILLING LOGO)
DIAMOND OFFSHORE DRILLING, INC.
1 1/2% CONVERTIBLE SENIOR DEBENTURES DUE 2031
THE DEBENTURES
- - Aggregate principal amount: $460,000,000.
- - Common stock into which the debentures are convertible: initially 9,382,988
shares, subjectup to conversion rate adjustments.
- - Issue price: 100% on April 11, 2001. This prospectus will be used by selling
securityholders to resell debentures and the shares of common stock issuable
upon conversion of the debentures.
- - Interest: 1.50% per year payable semiannually in arrears.
- - Conversion rate: 20.397820,229,065 shares of our common stock, par value $0.0001 per $1,000 principal
amountshare (which we refer to collectively as the Shares). We are not selling any Shares and we will not receive any proceeds from the sale of debentures, subjectthe Shares by the selling stockholders. We are registering the offer and sale of the Shares pursuant to adjustment.
- - Maturity date:registration rights we have granted under a registration rights agreement dated as of April 15, 2031.
CONTINGENT INTEREST
- -23, 2021. We have agreed to bear all of the expenses incurred in connection with the registration of the Shares. The selling stockholders will pay contingent interest duringor assume brokerage discounts or commissions and similar charges, if any, six-month period beginning after
April 15, 2008 ifincurred in the average market price of a debenture during a measurement
period preceding that six-month period equals 120% or moresale of the principal
amountShares.
Our registration of the debentureShares covered by this prospectus does not mean that the selling stockholders will offer or sell any of the Shares. The Shares to which this prospectus relates may be offered and we pay a regular cash dividend during that
six-month period.
- - The amount of contingent interest payable per debenture for each quarter will
equal 50% of regular cash dividends, if any, that we pay per share of our
common stock multipliedsold from time to time directly by the conversion rate.
CONVERSION
- - Holders can convertselling stockholders or alternatively through broker-dealers or agents. The selling stockholders will determine at what price they may sell the debentures into our common stockShares offered by this prospectus. Such sales may be made at anyfixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices, as further described in the section of this prospectus entitled “Plan of Distribution” beginning on or
beforepage 25. For a list of the maturity date.
REDEMPTION
- - We haveselling stockholders, see the option to redeem the debentures at any time on or after April 15,
2008.
REPURCHASE
- - Holders have the option on April 15, 2008, or when there is a change of
control of Diamond Offshore, to require us to repurchase their debentures.
- - section entitled “Selling Stockholders.”
We may chooseamend or supplement this prospectus from time to paytime by filing amendments or supplements as required. You should read and carefully consider and evaluate this entire prospectus, including the repurchase price in cashinformation incorporated by reference into this prospectus, and any amendments or shares of our common
stock or a combination of cash and shares of our common stock.
THE DEBENTURES AND COMMON STOCK OFFERED IN THIS PROSPECTUS INVOLVE A HIGH
DEGREE OF RISK. CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE 5.
supplements before you make your investment decision.
Our common stock is listed on Thethe New York Stock Exchange and trades under the symbol "DO."
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OF THIS PROSPECTUS. ANY CONTRARY REPRESENTATION IS A CRIMINAL OFFENSE.
Prospectus dated“DO.” On June 1, 2022, the last reported sale price of our common stock was $8.07 per share, as reported on the New York Stock Exchange.
Our principal office is located at 15415 Katy Freeway, Houston, Texas 77094. Our telephone number is (281) 492-5300.
Investing in the Shares involves significant risks. See “Risk Factors” beginning on page 9 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2001
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Plan of | 25 | |||
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This prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission pursuant to which the selling stockholders named herein may, from time to time, offer and sell or otherwise dispose of the Shares covered by this prospectus. You should not assume that the information contained in this prospectus is accurate on any date subsequent to the date set forth on the front cover of this prospectus or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus is delivered or Shares are sold or otherwise disposed of on a later date. It is important for you to read and consider all information contained in this prospectus, including the documents incorporated by reference herein, in making your investment decision. You should also read and consider the information in the documents to which we have referred you under the caption “Where You Can Find More Information” in this prospectus.
We have not authorized anyone to provide any information or to make any representation other than those contained or incorporated by reference in this prospectus. You must not rely upon any information or representation not contained or incorporated by reference in this prospectus. This prospectus does not constitute an offer to sell or the solicitation of an offer to buy any of our securities other than the Shares covered hereby, nor does this prospectus constitute an offer to sell or the solicitation of an offer to buy any Shares in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
For investors outside the United States: we have not, and the selling stockholders have not, taken any action to permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offer and sale of the Shares and the distribution of this prospectus outside the United States.
We are not making any representation to any purchaser of the Shares regarding the legality of an investment in the Shares by such purchaser. You should not consider any information in this prospectus to be legal, business or tax advice. You should consult your own attorney, business advisor or tax advisor for legal, business and tax advice regarding an investment in the Shares.
This prospectus contains forward-looking statements that are subject to a number of risks and uncertainties, many of which are beyond our control. Please read “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements.”
As used in this prospectus generally, the words “we,” “us,” “our” and “Diamond Offshore” refer to Diamond Offshore Drilling, Inc., a Delaware corporation, and its direct or indirect subsidiaries, unless the context otherwise requires, and “our Board of Directors” refers to the board of directors of Diamond Offshore Drilling, Inc.
i
As previously disclosed, Diamond Offshore Drilling, Inc. (or the Company) and certain of its subsidiaries (or, together with the Company, the Debtors) commenced voluntary cases (or, collectively, the Chapter 11 Cases) under chapter 11 of title 11 of the United States Code (or the Bankruptcy Code) in the United States Bankruptcy Court for the Southern District of Texas (or the Bankruptcy Court) and filed the Joint Chapter 11 Plan of Reorganization of Diamond Offshore Drilling, Inc. and Its Debtor Affiliates on January 22, 2021 with the Bankruptcy Court, which was subsequently amended on February 24, 2021 and February 26, 2021 (or the Plan). On March 23, 2021, the Debtors filed the Plan Supplement for Second Amended Joint Chapter 11 Plan of Reorganization of Diamond Offshore Drilling, Inc. and Its Debtor Affiliates, Docket No. 1157, with the Bankruptcy Court, which was subsequently amended on April 6, 2021 and April 22, 2021 (or the Plan Supplement).
On April 8, 2021, the Bankruptcy Court entered an order, Docket No. 1231, confirming the Plan (or the Confirmation Order). The Plan, as confirmed, is attached to the Confirmation Order. The Plan and Confirmation Order were filed with the U.S. Securities and Exchange Commission (or the SEC) as Exhibits 2.1 and 99.1 to the registration statement of which this prospectus is a part.
On April 23, 2021 (or the Effective Date), the Plan became effective in accordance with its terms and the Debtors emerged from chapter 11 reorganization.
On the Effective Date, in connection with the effectiveness of, and pursuant to the terms of, the Plan and the Confirmation Order, the Company’s common stock outstanding immediately before the Effective Date was canceled and is of no further force or effect, and the new organizational documents of the Reorganized Company (as defined below) became effective, authorizing the issuance of shares of common stock representing 100% of the equity interests in the Reorganized Company (or the New Diamond Common Shares). Pursuant to the Warrant Agreement (or the Warrant Agreement), dated the Effective Date, among the Company, Computershare Inc., a Delaware corporation, and Computershare Trust Company, N.A., a federally chartered trust company, as warrant agent, which provides for the issuance of five-year warrants with no Black Scholes protection (or the Emergence Warrants) to purchase an aggregate of 7.00% of the New Diamond Common Shares, measured at the time of the exercise, subject to dilution by shares issuable pursuant to the Company’s management incentive plan, the Company issued an aggregate of 7,526,894 of Emergence Warrants on the Effective Date to holders of existing shares of common stock in the amounts, and on the terms, set forth in the Plan and the Plan Supplement. Thus, the Company, as reorganized on the Effective Date in accordance with the Plan (or the Reorganized Company), issued the New Diamond Common Shares, the Emergence Warrants, and the 9.00%/11.00%/13.00% Senior Secured First Lien PIK Toggle Notes due 2027 (or the First Lien Notes) issued by Diamond Foreign Asset Company, a Cayman Islands exempted company limited by shares, and Diamond Finance, LLC (or the Issuers), which are jointly and severally irrevocably and unconditionally guaranteed on a senior secured basis by the Company, the Issuers and certain subsidiaries of the Company.
On the Effective Date, the Company entered into a registration rights agreement (or the Registration Rights Agreement) with certain parties who received New Diamond Common Shares under the Plan (or the RRA Shareholders). The RRA Shareholders exercised their right to require the Company to file a shelf registration statement and on June 22, 2021, the Company filed a registration statement, as subsequently amended, to register
the Shares owned by the RRA Shareholders. The Company will generally pay all registration expenses in connection with its obligations under the Registration Rights Agreement, regardless of whether a registration statement is filed or becomes effective. The registration rights granted in the Registration Rights Agreement are subject to customary indemnification and contribution provisions, as well as customary restrictions such as blackout periods. The Company is filing the registration statement on Form S-3 of which this prospectus forms a part pursuant to the foregoing obligation. The foregoing description of the Registration Rights Agreement is not complete and is qualified in its entirety by reference to the Registration Rights Agreement, which is filed as Exhibit 4.4 to the registration statement of which this prospectus is a part and is incorporated herein by reference.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any accompanying prospectus supplement and the documentsinformation incorporated by reference in this prospectus contain both historicalmay include “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and forward-looking statements.Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. All statements other than statements of historical fact are, or may be deemed to be, forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, or the Securities Act, and Section 21E of the Securities Exchange
Act of 1934, or the Exchange Act.statements. Forward-looking statements include, the
information concerning possiblewithout limitation, any statement that may project, indicate or assumedimply future results, events, performance or achievements, and may contain or be identified by the words “expect,” “intend,” “plan,” “predict,” “anticipate,” “estimate,” “believe,” “should,” “could,” “would,” “may,” “might,” “will,” “will be,” “will continue,” “will likely result,” “project,” “forecast,” “budget” and similar expressions. In addition, any statement concerning future financial performance (including, without limitation, future revenues, earnings or growth rates), ongoing business strategies or prospects, and possible actions taken by or against us, which may be provided by management, are also forward-looking statements as so defined. These types of operationsstatements are based on current expectations about future events and inherently are subject to a variety of assumptions, risks and uncertainties, many of which are beyond our company, including statements about the following subjects:
- business strategy
- growth opportunities
- competitive position
- market outlook
- expected financial position
- expected results of operations
- future cash flows
- future dividends
- financing plans
- budgets for capital and other expenditures
- timing and cost of completion of capital projects
- plans and objectives of management
- performance of contracts
- outcomes of legal proceedings
- compliance with applicable laws
- adequacy of insurance
- future uses of and requirements for financial resources
- expenditures, delivery dates and drilling contracts related to the
deepwater upgrade of the Ocean Baroness and other conversion or upgrade
projects
Forward-looking statements in this prospectus or incorporated by reference
are identifiable by use of the following words and other similar expressions,
among others:
- "anticipate"
- "believe"
- "budget"
- "could"
- "estimate"
- "expect"
- "forecast"
- "intend"
- "may"
- "might"
- "plan"
- "predict"
- "project"
- "should"
The factors discussed below under "Risk Factors" and in the documents we
incorporate by reference into this prospectus could affect our future results of
operations andcontrol, that could cause thoseactual results to differ materially from those expected, projected or expressed in theforward-looking statements. Factors that could impact these areas and our overall business and financial performance and cause actual results to differ from these forward-looking statements includedinclude, but are not limited to, the risk factors discussed elsewhere in this prospectus, orany accompanying prospectus supplement and the documents incorporated by reference.reference in this prospectus. These factors include, among others, risks and uncertainties associated with the following:
those described under “Risk Factors” in this prospectus, and in Item 1A of our Annual Report on Form 10-K for the fiscal year ended December 31, 2021 filed with the SEC on March 7, 2022, as amended by our Annual Report on Form 10-K/A filed with the SEC on May 2, 2022;
risks that our assumptions and analyses in the Plan are incorrect;
the potential adverse effects of the Chapter 11 Cases on our liquidity, results of operations, access to capital resources or business prospects;
the impact of the COVID-19 pandemic, including new variants of the virus, or future epidemics or pandemics on our business, including the potential for worker absenteeism, facility closures, work slowdowns or stoppages, supply chain disruptions, additional costs and liabilities, delays, our ability to recover costs under contracts, insurance challenges, and potential impacts on access to capital, markets and the fair value of our assets;
general economic and business conditions casualty losses, industry fleet capacity, and trends, including recessions, inflation, and adverse changes in the level of international trade activity;
worldwide supply and demand for oil and natural gas;
changes in foreign and domestic oil and gas exploration, development and production activity,
competition, activity;
oil and natural gas price fluctuations and related market expectations;
the ability of the Organization of Petroleum Exporting Countries, and 10 other oil producing countries, including Russia and Mexico, or OPEC+, to set and maintain production levels and pricing, and the level of production in non-OPEC+ countries;
policies of various governments regarding exploration and development of oil and gas reserves;
inability to obtain contracts for our rigs that do not have contracts;
inability to reactivate cold-stacked rigs;
cancellation or renegotiation of contracts included in our reported contract backlog;
advances in exploration and development technology;
the worldwide political and military environment, including, for example, in oil-producing regions and locations where our rigs are operating or are in shipyards;
casualty losses;
operating hazards inherent in drilling for oil and gas offshore;
the risk of physical damage to rigs and equipment caused by named windstorms in the U.S. Gulf of Mexico;
industry fleet capacity;
market conditions in the offshore contract drilling industry, including, without limitation, dayrates and utilization levels;
competition;
changes in foreign, political, social and economic conditions,
conditions;
risks of international operations, compliance with foreign laws and taxation policies and seizure, expropriation, nationalization, deprivation, malicious damage or other loss of possession or use of equipment and assets;
risks of potential contractual liabilities pursuant to our various drilling contracts in effect from time to time;
customer or supplier bankruptcy, liquidation or other financial difficulties;
the ability of customers and suppliers to meet their obligations to us and our subsidiaries;
collection of receivables;
foreign exchange and currency fluctuations and regulations, and the inability to repatriate income or capital;
risks of war, military operations, other armed hostilities, sabotage, piracy, cyber-attack, terrorist acts and embargoes, including the conflict in Ukraine;
changes in offshore drilling technology, which could require significant capital expenditures in order to maintain competitiveness;
reallocation of drilling budgets away from offshore drilling in favor of other priorities such as renewable energy or other land-based projects;
regulatory initiatives and compliance with governmental regulations including, without limitation, regulations pertaining to climate change, greenhouse gases, carbon emissions or energy use;
compliance with and liability under environmental laws and regulations;
uncertainties surrounding deepwater permitting and exploration and development activities;
potential changes in accounting policies by the Financial Accounting Standards Board, SEC, or regulatory agencies for our industry which may cause us to revise our financial accounting and/or disclosures in the future, and which may change the way analysts measure our business or financial performance;
development and increasing adoption of alternative fuels;
customer preferencespreferences;
risks of litigation, tax audits and contingencies and the impact of compliance with judicial rulings and jury verdicts;
cost, availability, limits and adequacy of insurance;
invalidity of assumptions used in the design of our controls and procedures and the risk that material weaknesses may arise in the future;
business opportunities that may be presented to and pursued or rejected by us;
the results of financing efforts;
adequacy and availability of our sources of liquidity;
risks resulting from our indebtedness;
public health threats;
negative publicity;
impairments of assets; and
various other matters, many of which are beyond our control.
You
Given these risks and uncertainties, investors should not place undue reliance on forward-looking statements. EachWe expressly disclaim any obligation or undertaking to release publicly any updates or revisions to any forward-looking statement speaks only asto reflect any change in our expectations or beliefs with regard to the statement or any change in events, conditions or circumstances on which any forward-looking statement is based. In addition, in certain places in this prospectus, any accompanying prospectus supplement and the information incorporated by reference in this prospectus, we may refer to reports published by third parties that purport to describe trends or developments in energy production or drilling and exploration activity. While we believe that these reports are reliable, we have not independently verified the information included in such reports. We specifically disclaim any responsibility for the accuracy and completeness of the date of the particular
statement,such information and we undertake no obligation to publicly update or revise any
forward-looking statements.
iii
5
such information.
WHERE YOU CAN FIND MORE INFORMATION
We are subjecthave filed with the SEC a registration statement on Form S-3 (including the exhibits, schedules and amendments thereto) under the Securities Act to register with the SEC the Shares offered in this prospectus. This prospectus, which constitutes a part of the registration statement, does not contain all of the information set forth in the registration statement and the exhibits and schedules filed with it. For further information about us and the Shares, we refer you to the informational requirementsregistration statement and the exhibits and schedules filed with it and the documents incorporated by reference therein. Statements contained in this prospectus as to the contents of any contract, agreement or any other document are summaries of the Exchange Act,material terms of this contract, agreement or other document and are not necessarily complete and each such statement is qualified in accordance withall respects by reference to the Exchange Act,full text of such contract, agreement or other document filed as an exhibit to the registration statement.
We file annual, quarterly, and specialcurrent reports, proxy statements and other information with the SecuritiesSEC. Our SEC filings are available to the public over the Internet at the SEC’s website at www.sec.gov.
We also make available free of charge on our internet website at www.diamondoffshore.com our Annual Reports on Form 10-K, our Quarterly Reports on Form 10-Q, our Current Reports on Form 8-K and Exchange
Commission,any amendments to those reports, as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. You can inspect and copy the registration statementInformation contained on Form S-3 of whichour website is not incorporated by reference into this prospectus is aand you should not consider information contained on our website as part as well as reports, proxy
statements and other informationof this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” specified documents that we file with the SEC, and obtain copies of
these materials at the prescribed rates, at the SEC's Public Reference Room at
450 Fifth Street, N.W., Washington, D.C. 20549. You can call the SEC at
1-800-SEC-0330 for information regarding the operation of the Public Reference
Room. The SEC also maintains an Internet site at http://www.sec.gov that
contains reports, proxy and information statements, and other information
regarding registrants, like us, that file electronically.
This prospectus provides you with a general description of the debentures
and common stock being registered. This prospectus is part of a registration
statement that we have filed with the SEC. To see more detail, you should read
the exhibits and schedules filed with, or incorporated by reference into, our
registration statement.
The SEC allows us to "incorporate by reference" into this prospectus the
information we file with the SEC. Thiswhich means that we can disclose important information to you without actually including the specific information in this prospectus by referring you to those documents.other documents on file with the SEC. The information weincorporated by reference is an important part of this prospectus. If information in incorporated documents conflicts with information in this prospectus, you should rely on the most recent information. If information in an incorporated document conflicts with information in another incorporated document, you should rely on the most recent incorporated document.
We incorporate by reference is considered a partthe following documents that we have filed with the SEC (File No. 1-13926) pursuant to the Exchange Act (excluding such documents or portions thereof that have been “furnished” but are not deemed “filed” under the Exchange Act in accordance with the Exchange Act and applicable SEC rules and regulations):
| • | Annual Report on Form 10-K for the fiscal year ended December 31, 2021 filed on March 7, 2022, as amended by our Annual Report on Form 10-K/A filed on May 2, 2022; |
| • | Quarterly Report on Form 10-Q for the quarter ended March 31, 2022 filed on May 10, 2022; |
| • | Current Reports on Form 8-K filed on January 3, 2022, January 24, 2022, April 27, 2022, May 2, 2022 and May 11, 2022 ; and |
| • | The description of our common stock contained in our registration statement on Form 8-A filed with the SEC on March 29, 2022, as we may update that description from time to time. |
We also incorporate by reference into this prospectus and later
informationall documents that we subsequently file with the SEC will automatically update and supersede this
information. We incorporate by reference our documents listed below and any
future filings we make with the SEC under SectionsSection 13(a), 13(c), 14 andor 15(d) of the Exchange Act, until this offering is completed:
- Annual Report on Form 10-K for the year ended December 31, 2000;
- Quarterly Report on Form 10-Q for the quarter ended March 31, 2001;
- Current Report on Form 8-K filedincluding all such documents we may file with the SEC on March 7, 2001;
- Current Report on Form 8-K filed withafter the SEC on April 6, 2001;
- Current Report on Form 8-K filed withdate of the SEC on April 11, 2001;initial registration statement of which this prospectus forms a part and - The description of our common stock contained in Amendment No. 1prior to the Registration Statement on Form 8-A filed with the SEC on October 10,
1995.
You may request these documents in writing or by telephone. We will provide
to you, at no cost, a copyeffectiveness of any or all information incorporated by reference
in the registration statement of which this prospectus forms a part, prior to the termination of the offering of the Shares registered pursuant to such registration statement. These documents may include Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy
statements. We are not incorporating by reference any information furnished under Items 2.02 or 7.01 (or corresponding information furnished under Item 9.01 or included as an exhibit) in any past or future Current Report on Form 8-K that we may file with the SEC, unless otherwise specified in such Current Report.
We will provide without charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral request, a part.copy of any or all of the foregoing documents incorporated herein by reference (other than exhibits unless such exhibits are specifically incorporated by reference in such documents). Requests for such documents should be directed to our Investor Relations Department at our principal offices
which are located at to:
Diamond Offshore Drilling, Inc.
15415 Katy Freeway, Suite 100
Houston, Texas 77094. You may contact
our77094
Attention: Investor Relations Department by calling us at
Telephone: (281) 492-5300.
You should rely on the
This summary highlights information incorporated by reference or providedcontained elsewhere in this prospectus or any prospectus supplement. We have not authorized anyone else
to provide you with different information. The selling securityholders are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of the document.
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6
SUMMARY
You should read this summary together with the more detailed information
regarding us, the 1 1/2% Convertible Senior Debentures Due 2031, or debentures,
and the common stock issuable upon conversion of the debentures appearing
elsewhere, and incorporated by reference in this prospectus, is not complete, and does not contain all of the information that you should consider before making your investment decision. Important information is incorporated by reference into this prospectus. All selling
securityholders must deliver aYou should carefully read the entire prospectus, to purchasers at or priorincluding the documents incorporated by reference herein, which are described under “Incorporation of Certain Information by Reference” and “Where You Can Find More Information.” You should also read and carefully consider, among other things, the information presented and incorporated by reference under the sections entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements” and the consolidated financial statements and the notes thereto before making an investment decision.
Our Company
We provide contract drilling services to the timeenergy industry around the globe with a fleet of any sale of15 floater rigs (four owned drillships, eight owned semisubmersibles and three managed rigs), including one warm-stacked semisubmersible rig, the debentures or common stock issuable upon conversion of the
debentures.
DIAMOND OFFSHORE DRILLING, INC.
We are a leading global offshore oil and gas drilling contractor. Our
fleet, which is comprised of 30Ocean GreatWhite, two cold-stacked semisubmersible rigs, 14 jack-up rigsthe Ocean Valiant and the Ocean Monarch, and one drillship, is one of the world's largest.
cold-stacked managed rig.
We drill in the waters ofoffshore North America, South America, Europe, Africa, Asia and Australia. We offer comprehensive drilling services to the global energy industry.
Risk Factors
Investing in the Shares involves significant risks. Before making an investment decision, you should carefully consider the risks described and incorporated by reference into this prospectus under “Risk Factors” and elsewhere in this prospectus, any prospectus supplement or amendment, our most recent Annual Report on Form 10-K and our other filings with the SEC that are incorporated into this prospectus in evaluating an investment in the Shares. If any of the risks were to actually occur, they may materially harm our business and our financial condition and results of operations. In this event, the price of our common stock, par value $0.0001 per share, or Common Stock, could decline significantly and you could lose some or all of your investment.
Reorganization and Emergence from Bankruptcy
We were incorporatedemerged from bankruptcy under chapter 11 of the Bankruptcy Code on April 23, 2021. Upon our emergence from bankruptcy, we adopted fresh start accounting. Accordingly, because fresh start accounting rules apply, our financial condition and results of operations following emergence from the Chapter 11 Cases may not be comparable to the financial condition or results of operations reflected in 1989. our historical financial statements. The lack of comparable historical financial information may discourage investors from purchasing our Common Stock.
Corporate Information
Our principal executive offices are located at 15415 Katy Freeway, Houston, Texas 77094, and our telephone number at that location is (281) 492-5300. As used Our website address is www.diamondoffshore.com. Neither our website nor any information contained on our website is part of, nor incorporated by reference in, this prospectus.
THE OFFERING
Issuer | Diamond Offshore Drilling, Inc., a Delaware corporation. |
Common Stock the selling stockholders are offering | 20,229,065 shares of Common Stock. |
Common Stock outstanding | 100,074,818 shares of Common Stock as of May 2, 2022. |
Selling stockholders | Certain holders of our securities prior to our emergence from bankruptcy, including investment funds and other entities. See “Selling Stockholders” for further discussion. |
Use of proceeds | We will not receive any proceeds from the sale of Shares by the selling stockholders in this offering. See “Use of Proceeds.” |
Risk factors | Investing in the Shares involves substantial risks. You should read carefully the “Risk Factors” section of this prospectus and the risk factors incorporated by reference into this prospectus for a discussion of factors that you should carefully consider before deciding to invest in the Shares. |
Trading Market and Ticker Symbol | Our Common Stock is listed on the New York Stock Exchange under the symbol “DO.” |
An investment in the Shares involves a significant degree of risk. Before you invest in the Shares you should carefully consider the specific risk factors set forth below, the risks described elsewhere in this prospectus "we" means Diamond
Offshore Drilling, Inc., a Delaware corporation, and its subsidiaries, unless
the context indicates otherwise.
THE OFFERING
Securities Offered.................. $460,000,000 aggregate principal amountrisks described under “Risk Factors” and elsewhere in any applicable prospectus supplement, our most recent Annual Report on Form 10-K, subsequent Quarterly Reports on Form 10-Q and other reports and documents we file with the SEC after the date of 1 1/2% Convertible Senior Debentures
Due 2031. Each debenture was issued at
athis prospectus that are incorporated by reference herein, together with all of the other information included in this prospectus, any prospectus supplement and the documents incorporated by reference herein, in evaluating an investment in the Shares. If any of the risks discussed in the foregoing documents were to occur, our business, financial condition, results of operations and cash flows could be materially adversely affected. If that occurs, the price of $1,000.00 per debenture.
Maturity Date....................... April 15, 2031.
Interest............................ 1 1/2% per yearthe Shares could decline materially and you could lose some or all of your investment. Please read “Cautionary Note Regarding Forward-Looking Statements” and “Incorporation of Certain Information by Reference.”
The risks included in this prospectus and the documents incorporated by reference into this prospectus are not the only risks we face. We may experience additional risks and uncertainties not currently known to us, or as a result of developments occurring in the future. Conditions that we currently deem to be immaterial may also materially and adversely affect our business, financial condition, cash flows and results of operations.
Risks Related to the Shares and this Offering
The market price of our Common Stock may be volatile and may decline, and you may not be able to resell our Common Stock at prices equal to or greater than the price you paid.
The trading price of our Common Stock could fluctuate significantly and may decline for many reasons. Numerous factors, including many over which we have no control, may have a significant impact on the principal
amount, payable semiannuallymarket price of our Common Stock. These factors include, among other things:
our operating and financial performance and prospects;
our ability to repay our debt;
investor perceptions of us and the industry and markets in arrears
on April 15which we operate;
the public reaction to our press releases, our other public announcements and October 15our filings with the SEC;
future sales, or the availability for sale, of each
year, beginning October 15, 2001.
Conversion Rights................... You have equity or equity-related securities;
changes in earnings estimates or buy/sell recommendations by analysts;
strategic actions by our competitors;
changes in applicable laws and regulations;
changes in accounting principles;
limited trading volume of our Common Stock;
general financial, domestic, economic and other market conditions; and
the optionrealization of any risks described under this “Risk Factors” section or those incorporated by reference.
In the event of a drop in the market price of our Common Stock, you could lose a substantial part or all of your investment in our Common Stock.
Sales of our Common Stock by existing stockholders, or the perception that these sales may occur, especially by directors or significant stockholders of the Company, may cause the price of our Common Stock to convertdecline.
If our existing stockholders, in particular our directors or other affiliates, sell substantial amounts of our Common Stock or other securities, or are perceived by a public market as intending to sell, the debentures intoprice of our common stock at any
time on or before the maturity date,
unless the debentures have been
previously redeemed or purchased.
You can convert the debentures into
common stock at a conversion rate
Common Stock could decline. In addition, sales of 20.3978these shares for each $1,000
principal amount. The conversion rate
will be subjectof Common Stock could impair our ability to adjustment if
certain events occur. Instead of
deliveringraise capital, should we wish to do so. Up to 20,229,065 shares of our common stockCommon Stock may be sold pursuant to this prospectus by the selling stockholders, which represent approximately 20.2% of our outstanding Common Stock as of May 2, 2022. We cannot predict the timing or amount of future sales of the Shares by selling stockholders pursuant to this prospectus, but such sales, or the perception that such sales could occur, may adversely affect prevailing market prices for our Common Stock.
Our Common Stock is an equity interest and therefore subordinated to our indebtedness.
In the event of our liquidation, dissolution or winding up, our Common Stock would rank below all secured debt claims against us. As a result, holders of our Common Stock will not be entitled to receive any payment or other distribution of assets upon conversionour liquidation, dissolution or winding up until after all of our obligations to our secured debt holders have been satisfied.
Because we currently have no plans to pay cash dividends or other distributions on our Common Stock, you may not receive any debentures,return on investment unless you sell your Common Stock for a price greater than that which you paid for it.
We currently do not expect to pay any cash dividends or other distributions on our Common Stock in the foreseeable future. Any future determination to pay cash dividends or other distributions on our Common Stock will be at the sole discretion of our Board of Directors and, if we
may elect to pay you cash for your
debenturessuch dividends in an amount basedthe future, we may reduce or discontinue entirely the payment of such dividends at any time. Any future dividends will be at the discretion of our Board of Directors after taking into account various factors it deems relevant, including our financial position, earnings, earnings outlook, capital spending plans, outlook on current and future market conditions and business needs and contractual obligations. In addition, restrictive covenants in certain debt instruments to which we are, or may be, a party, limit our ability to pay dividends or our ability to receive dividends from our operating companies, and may negatively impact the
average sale price of our common stock
for the five consecutive trading days
immediately following either:
- the date of our notice of our
election to deliver cash, which we
must give within two business days of
receivingCommon Stock. As a conversion notice, unless
we have earlier given notice of
redemption as described in this
prospectus; or
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7
- the conversion date, if we have given
notice of redemption specifying we
intend to deliver cash upon
conversion thereafter.
The conversion rateresult, you may be adjusted for
certain reasons, but will not be
adjusted for accrued interest (whether
regular or contingent). You will not receive any cash payment representing
accrued regular or contingent interest
upon conversion, except upon conversion
of debentures calledreturn on an investment in our Common Stock unless you sell our Common Stock for redemption.
Instead, accrued interest will be
deemed paid by the shares of common
stock you receive on conversion. The
debentures are initially convertible
into 9,382,988 shares of our common
stock. See "Description of the
Debentures -- Conversion Rights."
Ranking............................. The debentures are unsecured and
unsubordinated obligations and rank
equal in right of payment to all our
existing and future unsecured and
unsubordinated indebtedness. However,
the debentures are effectively
subordinated to all existing and future
obligations of our subsidiaries. As of
March 31, 2001, Diamond Offshore
Drilling, Inc. had approximately $810.4
million of total indebtedness
outstanding. As of March 31, 2001, our
subsidiaries had approximately $56.1
million of outstanding obligations.
Contingent Interest................. We will pay contingent interest to the
holders of debentures during any
six-month period from April 16 to
October 15 and from October 16 to April
15, beginning April 16, 2008, if the
average market price of a debenture for
the five trading days ending on the
second trading day immediately
preceding the relevant six-month period
equals 120% or more of the principal
amount of the debenture and we pay a
regular cash dividend during that
six-month period. Notwithstanding the
above, if we declare a dividend for
which the record date falls before the
first day of that six-month period but
the payment date falls within that
six-month period, then the five trading
day period for determining the average
market price of a debenture will be the
five trading days ending on the second
trading day immediately preceding the
record date.
The amount of contingent interest
payable per debenture in respect of any
quarterly period will equal 50% of
regular cash dividends, if any, that we
pay per share on our common stock
during that quarterly period multiplied
by the number of shares of common stock
issuable upon conversion of a
debenture.
Contingent interest, if any, will
accrue and be payable to holders of
debentures as of the record date for
the related common stock dividend. We
will pay that
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8
contingent interest on the payment date
of the related common stock dividend.
Regular cash interest will continue to
accrue at the rate of 1 1/2% per year
on the principal amount of the
debentures whether or not we pay any
contingent interest. See "Description
of the Debentures -- Contingent
Interest."
Optional Redemption by Diamond
Offshore............................ We may redeem all or a portion of the
debentures for cash at any time on or
after April 15, 2008 at a price equalgreater than that which you paid for it.
Our ability to 100% of the principal amount of the
debentures to be redeemed plus accrued
and unpaid interest to, but excluding,
the redemption date. You may convert
your debentures after they are called
for redemption at any time prior to the
close of business on the business day
immediately preceding the redemption
date. Our notice of redemption will
inform you of our election to deliver
shares of our common stock or to pay
cash in lieu of delivery of the shares
with respect to any debentures
converted before the redemption date.
See "Description of the
Debentures -- Redemption of Debentures
at Our Option."
Original Issue Discount............. You agree to treat the debentures as
debt instruments subject to the United
States federal income tax contingent
payment debt regulations. You should be
aware that, even if we do not pay any
contingent interest on the debentures,
you will be required to include in your
gross income for United States federal
income tax purposes an amount of
interest in excess of regular cash
interest. This imputed interest, also
referred to as original issue discount,
will accrue at a rate equal to 6 1/2%
per year, computed on a semiannual bond
equivalent basis, which represents the
yield on our noncontingent,
nonconvertible, fixed-rate debt with
terms otherwise similar to the
debentures. The rate at which the
original issue discount will accrue for
United States federal income tax
purposes will exceed the stated yield
of 1 1/2% for the regular cash
interest. If the actual contingent
interest we pay differs from the amount
projected by us, adjustments will be
made to the amounts included in your
income.
You will also recognize gain or loss on
the sale, exchange, conversion or
redemption of a debenture in an amount
equal to the difference between the
amount realized on the sale, exchange,
conversion or redemption, including the
fair market value of any common stock
received upon conversion or otherwise,
and your adjusted tax basisraise capital in the debenture. Any gain recognized by you
onfuture may be limited, which could make us unable to fund our capital requirements.
Our business and operations may consume resources faster than we anticipate. In the sale, exchange, conversion or
redemptionfuture, we may need to raise additional funds through the issuance of a debenture generally
will be ordinary interest income; any
loss will be
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9
ordinary loss to the extent of the
interest previously included in income
and, thereafter, capital loss. See
"Certain United States Federal Income
Tax Considerations."
Sinking Fund........................ None.
Purchase of Debentures by Us at the
Option of the Holder................ You may require us to purchase all or a
portion of your debentures on April 15,
2008 at a price equal to 100% of the
principal amount of the debentures to
be purchased plus accrued and unpaid
interest to, but excluding, the
purchase date. We may choose to pay the
purchase price in cash, shares of
common stocknew equity securities, debt or a combination of cashboth. Additional financing may not be available on favorable terms or at all. If adequate funds are not available on acceptable terms, we may be unable to fund our capital requirements. If we issue new secured debt securities, the secured debt holders would have rights senior to holders of Common Stock to make claims on our assets, and the terms of any additional debt could restrict our operations, including our ability to pay dividends on our Common Stock. If we issue additional equity securities, existing stockholders may experience dilution. Our Third Amended and Restated Certificate of Incorporation permits our Board of Directors to issue preferred stock which could have rights and preferences senior to those of our Common Stock. Because our decision to issue securities in any future offering will depend on market conditions and other factors beyond our control, we cannot predict or estimate the amount, timing or nature of our future offerings. Thus, our security holders bear the risk of our future securities offerings reducing the market price of our Common Stock or other securities, diluting their interest or being subject to rights and preferences senior to their own.
Anti-takeover provisions in our organizational documents could delay or prevent a change of control.
Certain provisions of our Third Amended and Restated Certificate of Incorporation and our Second Amended and Restated Bylaws may have an anti-takeover effect and may delay, defer or prevent a merger, acquisition, tender offer, takeover attempt or other change of control transaction that a stockholder might
consider in its best interest, including those attempts that might result in a premium over the market price for the shares of common stock. After
receiving noticeCommon Stock held by our stockholders. These provisions provide for, among other things:
a classified Board of Directors;
the ability of our choice, you may
withdraw your election. We may also add
purchase datesBoard of Directors to issue, and determine the rights, powers and preferences of, one or more series of preferred stock;
advance notice for nominations of directors by stockholders and for stockholders to include matters to be considered at our annual meetings;
limitations on which you may require
us to purchase allconvening special stockholder meetings; and
the availability for issuance of additional shares of Common Stock.
These anti-takeover provisions could discourage, delay or prevent a portion of your
debentures. See "Description of the
Debentures -- Purchase of Debentures by
Us at the Option of the Holder."
Change in Control................... Upontransaction involving a change in control of the Company, including actions that our stockholders may deem advantageous, or negatively affect the price of the Common Stock and our other securities. These provisions could also discourage proxy contests and make it more difficult for you may
requireand other stockholders to elect directors of your choosing and to cause us to purchasetake other corporate actions you desire. See “Description of Capital Stock.”
The exercise of all or a portionany number of outstanding Emergence Warrants or the issuance of stock-based awards may dilute your debentures for cash at a price
equalholding of shares of our Common Stock.
At the Effective Date and pursuant to 100%the Plan, we issued 100,000,019 shares of Common Stock and 7,526,894 Emergence Warrants. The Emergence Warrants have an exercise period of five years and are exercisable into 7% of the principal amountNew Diamond Common Shares measured at the time of the debenturesexercise, subject to dilution by the awards issued pursuant to the Company’s 2021 Long-Term Stock Incentive Plan, or the Stock Incentive Plan. The Emergence Warrants are initially exercisable for one New Diamond Common Share per Emergence Warrant at an exercise price of $29.22 per Emergence Warrant (as may be purchased plus
accruedadjusted from time to time pursuant to the Warrant Agreement). Additionally, at the Effective Date an aggregate of up to 11,111,111 shares of Common Stock were initially available for grant to directors, officers and unpaid interestselected employees of or consultants to but
excluding, the dateCompany or its subsidiaries pursuant to awards under the Stock Incentive Plan. Equity awards under the Stock Incentive Plan, the exercise of purchase. See
"Descriptionequity awards and warrants, and the sale of shares of our Common Stock underlying any such awards or warrants, could have an adverse effect on the market for our Common Stock, including the price that an investor could obtain for their shares. Investors may experience dilution upon the exercise of the Debentures -- Changewarrants or the grant or exercise of equity awards under the Stock Incentive Plan, or awards that may be granted or issued pursuant to the Stock Incentive Plan in Control Permits
Purchase of Debentures by Us at the Optionfuture.
The selling stockholders will receive all of the Holder."
Usenet proceeds from the sale of Proceeds.....................the Shares that may be sold from time to time pursuant to this prospectus. We will not receive any of the proceeds from the sale of the debentures orShares by the underlying common stock by any selling securityholders.
Trading............................. The common stock is listed on The New
York Stock Exchange under the symbol
"DO."
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RISK FACTORS
Except for the historical information in this prospectus, the matters
contained in this prospectus include forward-looking statementsstockholders that involve
risks and uncertainties. The following factors, among others, could cause actual
resultsmay be sold from time to differ materially from those contained in forward-looking statements
made intime pursuant to this prospectus. The following risksWe have agreed to pay certain fees and uncertainties are not the only
ones we face. If anyexpenses of the following risks actually occur, our business,
financial condition and operating results could be adversely affected. As a
result,selling stockholders incurred in connection with the trading priceregistration of the debentures and our common stock could decline
and you could lose part or all of your investment.
OUR BUSINESS DEPENDS ON THE LEVEL OF ACTIVITY IN THE OIL AND GAS INDUSTRY, WHICH
IS SIGNIFICANTLY AFFECTED BY VOLATILE OIL AND GAS PRICES.
Our business depends onShares for sale by the level of activity in offshore oil and gas
exploration, development and production in markets worldwide. Oil and gas
prices, market expectations of potential changes in these prices and a variety
of political and economic factors significantly affect this level of activity.
Oil and gas prices are extremely volatile and are affectedselling stockholders.
This prospectus relates to the resale, from time to time, by numerous factors,
including:
- worldwide demand for oil and gas;
- the ability of the Organization of Petroleum Exporting Countries,
commonly called OPEC, to set and maintain production levels and pricing;
- the level of production in non-OPEC countries;
- the policies of the various governments regarding exploration and
development of their oil and gas reserves;
- advances in exploration and development technology; and
- the political environment of oil-producing regions.
THE LEVEL OF ACTIVITY IN THE OFFSHORE CONTRACT DRILLING INDUSTRY HAS BEEN SLOW
TO RECOVER, WHICH HAS ADVERSELY AFFECTED OUR DAYRATES AND RIG UTILIZATION.
During 2000, oil and natural gas prices remained significantly above
historical averages. However, market recovery for various classes of equipment
within the offshore contract drilling industry has been inconsistent as oil
producers have been cautious to invest in future production due to their
uncertainty as to whether the high level of product prices would continue. As a
result, surplus rig capacity continues to exist, particularlyselling stockholders included in the lower
specification semisubmersible market, resulting in a continued highly
competitive market for contract drilling services. Astable below, which we refer to collectively as the selling stockholders, of June 11, 2001, threeup to an aggregate of our second generation semisubmersibles were cold-stacked and not being marketed,
one semisubmersible was in the shipyard being upgraded and one additional
semisubmersible was stacked and available for work. Depending on market
conditions at the time when other units currently under contract become
available, we may be required during 200120,229,065 shares of Common Stock, subject to stack additional units or we may be
required to enter into lower-rate renewal contracts.
OUR INDUSTRY IS HIGHLY COMPETITIVE AND CYCLICAL, WITH INTENSE PRICE COMPETITION,
AND HAS BEEN SLOW TO RECOVER FROM DECREASED RIG DEMAND AND INCREASED RIG
AVAILABILITY.
The offshore contract drilling industry is highly competitive with numerous
industry participants, none of which at the present time has a dominant market
share. Some of our competitors may have greater resources than we do.
Drilling contracts are traditionally awarded on a competitive bid basis.
Intense price competition is often the primary factor in determining which
qualified contractor is awarded a job, although rig availability and the quality
and technical capability of service and equipment may also be considered.
Our industry has historically been cyclical. There have been periods of
high demand, short rig supply and high dayrates, followed by periods of lower
demand, excess rig supply and low dayrates. The industry
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11
experienced a period of significantly lower demand during 1999any appropriate adjustment as a result of reduced spending for exploration and development by our customers in response to
dramatically lower crude oil prices during 1998. In addition, rig availability
increased as a result of contract expirations and construction byany subdivision, split, combination or other drilling
contractors of new rigs that are competing with our rigs. Periods of excess rig
supply intensify the competition in the industry and often result in rigs being
idled for long periods of time. Although oil and natural gas prices have since
recovered and remained significantly above historical averages during 2000 and
the first five months of 2001, market recovery for various classes of equipment
within the offshore drilling industry has been inconsistent due to uncertainty
among oil producers as to whether the high level of product prices would
continue.
OUR DRILLING CONTRACTS MAY BE TERMINATED DUE TO EVENTS BEYOND OUR CONTROL.
Our customers may terminate somereclassification of our term drilling contracts ifCommon Stock. We are registering the drilling unit is destroyed or lost or if drilling operations are suspended for a
specified period of time as a result of a breakdown of major equipment or, in
some cases, due to other events beyond the control of either party. In reaction
to depressed market conditions, our customers may also seek renegotiation of
firm drilling contracts to reduce their obligations.
RIG CONVERSIONS, UPGRADES OR NEWBUILDS MAY BE SUBJECT TO DELAYS AND COST
OVERRUNS.
From time to time we may undertake to add new capacity through conversions
or upgrades to rigs or through new construction. These projects are subject to
risks of delay or cost overruns inherent in any large construction project
resulting from numerous factors, including the following:
- shortages of equipment, materials or skilled labor;
- unscheduled delays in the delivery of ordered materials and equipment;
- unanticipated cost increases;
- weather interferences;
- difficulties in obtaining necessary permits or in meeting permit
conditions;
- design and engineering problems; and
- shipyard failures.
OUR BUSINESS INVOLVES NUMEROUS OPERATING HAZARDS.
Our operations are subjectShares pursuant to the usual hazards inherent in drilling for
oil and gas offshore, suchRegistration Rights Agreement, as blowouts, reservoir damage, loss of production,
loss of well control, punchthroughs, craterings or fires.described under “Explanatory Note.” The occurrence of
these events could result in the suspension of drilling operations, damage to or
destruction of the equipment involved and injury or death to rig personnel.
Operations alsoselling stockholders may be suspended because of machinery breakdowns, abnormal
drilling conditions, failure of subcontractors to perform or supply goods or
services or personnel shortages. In addition, offshore drilling operators are
subject to perils peculiar to marine operations, including capsizing, grounding,
collision and loss or damage from severe weather. Damage to the environment
could also result from our operations, particularly through oil spillage or
extensive uncontrolled fires. We may also be subject to damage claims by oil and
gas companies.
Although we maintain insurance in the areas in which we operate, pollution
and environmental risks generally are not fully insurable. Our insurance
policies and contractual rights to indemnity may not adequately cover our
losses, and we do not have insurance coverage or rights to indemnity for all
risks. If a significant accident or other event occurs and is not fully covered
by insurance or contractual indemnity, it could adversely affect our financial
position and results of operations.
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12
OUR INTERNATIONAL OPERATIONS INVOLVE ADDITIONAL RISKS NOT ASSOCIATED WITH
DOMESTIC OPERATIONS.
We operate in various regions throughout the world that may expose us to
political and other uncertainties, including risks of:
- war and civil disturbances;
- expropriation of property or equipment;
- the inability to repatriate income or capital; and
- changing taxation policies.
International contract drilling operations are subject to various laws and
regulations in countries in which we operate, including laws and regulations
relating to:
- the equipping and operation of drilling units;
- currency conversions and repatriation;
- oil and gas exploration and development;
- taxation of offshore earnings and earnings of expatriate personnel; and
- use of local employees and suppliers by foreign contractors.
Governments in some foreign countries have become increasingly active in
regulating and controlling the ownership of concessions and companies holding
concessions, the exploration for oil and gas and other aspects of the oil and
gas industries in their countries. In addition, government action, including
initiatives by OPEC, may continue to cause oil price volatility. In some areas
of the world, this governmental activity has adversely affected the amount of
exploration and development work done by major oil companies and may continue to
do so. In addition, some foreign governments favor or effectively require the
awarding of drilling contracts to local contractors or require foreign
contractors to employ citizens of, or purchase supplies from, a particular
jurisdiction. These practices may adversely affect our ability to compete.
FLUCTUATIONS IN EXCHANGE RATES COULD RESULT IN LOSSES TO US.
Another risk inherent in our international operations is the possibility of
currency exchange losses where revenues are received and expenses are paid in
nonconvertible currencies. We may also incur losses as a result of an inability
to collect revenues because of a shortage of convertible currency available to
the country of operation.
FAILURE TO RETAIN HIGHLY SKILLED PERSONNEL COULD HURT OUR OPERATIONS.
We require highly skilled personnel to operate and provide technical
services and support for our drilling units. To the extent demand for drilling
services and the size of the worldwide industry fleet increase, shortages of
qualified personnel could arise, creating upward pressure on wages.
GOVERNMENTAL LAWS AND REGULATIONS MAY ADD TO OUR COSTS OR LIMIT OUR DRILLING
ACTIVITY.
Our operations are affected from time to time in varying degreesoffer and sell pursuant to this prospectus any or all of the Shares owned by governmental laws and regulations. them but make no representation that any of the Shares will be offered for sale.
The drilling industry is dependent on demand
for services from the oil and gas exploration industry and, accordingly, is
affected by changing tax and other laws relatinginformation provided below with respect to the energy business
generally. We may be requiredselling stockholders has been furnished to make significant capital expenditures to comply
with governmental laws and regulations. It is also possible that these laws and
regulations may in the future add significantly to our operating costsus by or may
significantly limit drilling activity.
7
13
COMPLIANCE WITH OR BREACH OF ENVIRONMENTAL LAWS CAN BE COSTLY AND COULD LIMIT
OUR OPERATIONS.
In the United States, regulations controlling the discharge of materials
into the environment, requiring removal and cleanup of materials that may harm
the environment or otherwise relating to the protectionon behalf of the environment applyselling stockholders and is current as of May 2, 2022. We have not sought to someverify such information.
To our knowledge, none of the selling stockholders has, or has had within the past three years, any position, office or other material relationship with us or any of our operations. For example,predecessors or affiliates, other than their ownership of shares of our company, as an operator of mobile
offshore drilling units in navigable United States waters and some offshore
areas, may be liable for damages and costs incurredCommon Stock, except in connection with oil
spills(i) the Registration Rights Agreement, (ii) the Plan and (iii) the Plan Support Agreement, dated as of January 22, 2021, or the Plan Support Agreement, by and among the Debtors, certain holders of the Company’s former senior notes and certain holders of claims under the Company’s former revolving credit facility and the Backstop and Private Placement Agreement, dated as of January 22, 2021, by and among the Debtors and the financing parties thereto, the form of which is included in the Plan Support Agreement.
The table sets forth:
the names of the selling stockholders;
the number of shares of Common Stock beneficially owned by the selling stockholders prior to the sale of the Shares covered by this prospectus;
the number of shares of Common Stock beneficially owned by the selling stockholders following the sale of the Shares covered by this prospectus, based on the assumption that all Shares will be sold in the offering; and
the ownership of the selling stockholders as a percentage of the outstanding Common Stock of the Company after this offering, based on the assumption that all Shares will be sold in the offering.
Selling Stockholder | Shares of Common Stock Beneficially Owned Prior to the Offering(1) | Shares of Common Stock That May Be Offered Hereby | Shares of Common Stock Beneficially Owned After the Offering(2) | Percentage of Total Outstanding After the Offering | ||||||||||||
Avenue Energy Opportunities Fund II AIV, L.P.(3) | 15,072,132 | 4,486,454 | 10,585,678 | 10.6 | % | |||||||||||
Certain funds and accounts for which Pacific Investment Management Company LLC serves as investment manager(4) | 8,524,421 | 3,763,485 | 4,760,936 | 4.8 | % | |||||||||||
Certain funds and accounts for which Capital Research & Management Company serves as investment adviser(5) | 8,334,085 | 2,348,182 | 5,985,903 | 6.0 | % | |||||||||||
Samuel Terry Asset Management Pty Ltd As Trustee For Samuel Terry Absolute Return Fund(6) | 7,786,885 | 3,122,608 | 4,664,277 | 4.7 | % | |||||||||||
KL Special Opportunities Master Fund | 2,528,026 | 1,235,999 | 1,292,027 | 1.3 | % | |||||||||||
Selling Stockholder | Shares of Common Stock Beneficially Owned Prior to the Offering(1) | Shares of Common Stock That May Be Offered Hereby | Shares of Common Stock Beneficially Owned After the Offering(2) | Percentage of Total Outstanding After the Offering | ||||||||||||
Certain funds and accounts for which AllianceBernstein L.P. serves as investment manager(8) | 4,328,995 | 759,342 | 3,569,653 | 3.6 | % | |||||||||||
The Mangrove Partners Master Fund, | 852,863 | 852,863 | — | * | ||||||||||||
Kore Fund LTD(10) | 1,846,578 | 494,271 | 1,352,307 | 1.4 | % | |||||||||||
MFP Partners, L.P.(11) | 1,685,196 | 416,422 | 1,268,774 | 1.3 | % | |||||||||||
Empyrean Capital Overseas Master Fund, Ltd.(12) | 1,630,146 | 1,630,146 | — | * | ||||||||||||
Spark Quantitative Master Fund L.P.(13) | 1,338,926 | 240,647 | 1,098,279 | 1.1 | % | |||||||||||
JKJ Special Situations Fund, LP(14) | 850,484 | 260,755 | 589,729 | * | ||||||||||||
Certain funds and accounts for which Acer Tree Investment Management LLP serves as investment adviser(15) | 464,294 | 114,730 | 349,564 | * | ||||||||||||
Storm Fund II – Storm Bond Fund(16) | 76,872 | 76,872 | — | * | ||||||||||||
Oceanic Hedge Fund(17) | 184,138 | 60,564 | 123,574 | * | ||||||||||||
Namco Realty LLC(18) | 291,654 | 29,402 | 262,252 | * | ||||||||||||
Ponderus Invest AB(19) | 284,058 | 48,358 | 235,700 | * | ||||||||||||
Altana Funds(20) | 222,926 | 36,507 | 186,419 | * | ||||||||||||
Shaw Family 2008 Trust(21) | 59,668 | 59,668 | — | * | ||||||||||||
VV Capital Partners, LP(22) | 132,608 | 8,797 | 123,811 | * | ||||||||||||
Telecom AS(23) | 24,115 | 24,115 | — | * | ||||||||||||
Dendera Capital Fund, LP(24) | 28,995 | 28,995 | — | * | ||||||||||||
Camaca AS(25) | 75,541 | 15,541 | 60,000 | * | ||||||||||||
Elcano Funds(26) | 102,396 | 18,404 | 83,992 | * | ||||||||||||
Toluma Funds(27) | 10,244 | 10,244 | — | * | ||||||||||||
Sjavarsyn(28) | 9,713 | 9,713 | — | * | ||||||||||||
Certain funds and accounts for which Ironsides Partners LLC serves as investment manager(29) | 12,546 | 12,546 | — | * | ||||||||||||
Egil Wickstrand Iverson(30) | 14,705 | 7,171 | 7,534 | * | ||||||||||||
FuglesangDahl AS and Olav Grande(31) | 14,936 | 14,936 | — | * | ||||||||||||
Odeon Capital Group LLC(32) | 28,860 | 28,860 | — | * | ||||||||||||
Alexander J. Keoleian(33) | 23,414 | 4,208 | 19,206 | * | ||||||||||||
AS Anakonda(34) | 2,464 | 2,464 | — | * | ||||||||||||
Svein Erik Nordang(35) | 1,149 | 1,149 | — | * | ||||||||||||
Vendetta AS(36) | 2,490 | 2,490 | — | * | ||||||||||||
Petter Haugen(37) | 718 | 718 | — | * | ||||||||||||
Andreas Thorendahl(38) | 2,000 | 718 | 1,282 | * | ||||||||||||
Jens Harr(39) | 478 | 478 | — | * | ||||||||||||
Eirik Underthun(40) | 8,854 | 243 | 8,611 | * | ||||||||||||
| * | Less than 1% |
| (1) | The number of shares of Common Stock beneficially owned by each selling stockholder is determined under rules promulgated by the SEC including on the basis of voting or investment power with respect to the shares of Common Stock. Under Rule 13d-3 under the Exchange Act, beneficial ownership includes any shares of Common Stock to which the individual or entity has sole or shared voting power or investment power and includes any shares as to which the individual or entity has the right to acquire beneficial |
| ownership within 60 days of May 2, 2022, through the exercise of any warrant, stock option or other right. The inclusion in this table of such shares of Common Stock, however, does not constitute an admission that the named security holder is a direct or indirect beneficial owner of such shares of Common Stock. Percentage of beneficial ownership is based on 100,074,818 shares of Common Stock outstanding as of May 2, 2022. We believe, based on information supplied by the selling stockholders, that unless otherwise indicated, each of the selling stockholders has sole voting and investment power with respect to the shares of Common Stock reported as beneficially owned by it. |
| (2) | Represents the shares of Common Stock that will be held by the selling stockholder after completion of this offering based on the assumptions that: (a) all Shares registered for sale by the registration statement of which this prospectus is a part will be sold by or on behalf of the selling stockholder; and (b) no other securities will be acquired prior to completion of this offering by the selling stockholder. The selling stockholders may sell all, some or none of the Shares offered pursuant to this prospectus and may sell some or all of their Common Stock pursuant to an exemption from the registration requirements of the Securities Act, including under Rule 144 promulgated thereunder or any successor rule. |
| (3) | Based on information provided by Avenue Energy Opportunities Fund II AIV, L.P., or AEOF II. Avenue Capital Management II, L.P., as the investment manager of AEOF II, and Marc Lasry may be deemed to have or to share voting and dispositive power over the shares of Common Stock owned by AEOF II. The address for AEOF II is 11 West 42nd Street, 9th Floor, New York, New York, 10036. |
| (4) | According to information provided by Pacific Investment Management Company, LLC, or PIMCO, the number of shares of Common Stock beneficially owned prior to the offering consists of 8,524,421 shares of Common Stock which includes (i) 50,195 shares of Common Stock owned by PIMCO Funds: Global Investors Series plc, US High Yield Bond Fund, (ii) 57,365 shares of Common Stock owned by PIMCO Funds: PIMCO High Yield Fund, (iii) 30,504 shares of Common Stock owned by PIMCO Funds: PIMCO Diversified Income Fund, (iv) 2,289,599 shares of Common Stock owned by PIMCO Tactical Opportunities Master Fund Ltd., (v) 28,681 shares of Common Stock owned by PIMCO Funds: Global Investors Series plc, Global High Yield Bond Fund, (vi) 7,170 shares of Common Stock owned by PIMCO Funds: PIMCO High Yield Spectrum Fund, (vii) 34,561 shares of Common Stock owned by PIMCO ETF Trust: PIMCO 0-5 Year High Yield Corporate Bond Index Exchange-Traded Fund, (viii) 5,996,562 shares of Common Stock owned by PIMCO Global Credit Opportunity Master Fund LDC, (ix) 1,434 shares of Common Stock owned by University Health Systems of Eastern Carolina, Inc., (x) 5,463 shares of Common Stock owned by Koch Financial Assets V, LLC, (xi) 287 shares of Common Stock owned by Public Service Company of New Mexico and (xii) 22,600 shares of Common Stock owned by PIMCO ETFs plc, PIMCO US Short-Term High Yield Corporate Bond Index UCITS ETF, or, collectively, the PIMCO Funds. |
The number of Shares that may be offered hereby consists of 3,763,485 shares of Common Stock which includes (i) 50,195 shares of Common Stock owned by PIMCO Funds: Global Investors Series plc, US High Yield Bond Fund, (ii) 57,365 shares of Common Stock owned by PIMCO Funds: PIMCO High Yield Fund, (iii) 30,504 shares of Common Stock owned by PIMCO Funds: PIMCO Diversified Income Fund, (iv) 978,725 shares of Common Stock owned by PIMCO Tactical Opportunities Master Fund Ltd., (v) 28,681 shares of Common Stock owned by PIMCO Funds: Global Investors Series plc, Global High Yield Bond Fund, (vi) 7,170 shares of Common Stock owned by PIMCO Funds: PIMCO High Yield Spectrum Fund, (vii) 34,561 shares of Common Stock owned by PIMCO ETF Trust: PIMCO 0-5 Year High Yield Corporate Bond Index Exchange-Traded Fund, (viii) 2,546,500 shares of Common Stock owned by PIMCO Global Credit Opportunity Master Fund LDC, (ix) 1,434 shares of Common Stock owned by University Health Systems of Eastern Carolina, Inc., (x) 5,463 shares of Common Stock owned by Koch Financial Assets V, LLC, (xi) 287 shares of Common Stock owned by Public Service Company of New Mexico and (xii) 22,600 shares of Common Stock owned by PIMCO ETFs plc, PIMCO US Short-Term High Yield Corporate Bond Index UCITS ETF. PIMCO, in its capacity as investment manager, adviser or sub-adviser, exercises sole or shared voting or dispositive power over the shares of Common Stock owned by the PIMCO Funds. The address for each of the PIMCO Funds is c/o Pacific Investment Management Company LLC, 650 Newport Center Drive, Newport Beach, California 92660.
| (5) | According to information provided by Capital Research and Management Company, or CRMC, the number of shares of Common Stock beneficially owned prior to the offering consists of 8,334,085 shares of Common Stock which includes (i) 4,200,930 shares of Common Stock owned by American High-Income Trust, (ii) 187,562 shares of Common Stock owned by Capital Income Builder, (iii) 87,700 shares of Common Stock owned by Capital Group Global High Income Opportunities (LUX), or CGGHIO, (iv) 359 shares of Common Stock owned by Capital Group US High Yield Fund (LUX), or CGUY, (v) 3,297,643 shares of Common Stock owned by The Income Fund of America, (vi) 232 shares of Common Stock owned by American Funds Multi-Sector Income Fund, (vii) 333,458 shares of Common Stock owned by American Funds Insurance Series – Asset Allocation Fund, (viii) 110,972 shares of Common Stock owned by American Funds Insurance Series – American High-Income Trust, (ix) 49,038 shares of Common Stock owned by American Funds Insurance Series – Capital World Bond Fund and (x) 66,191 shares of Common Stock owned by Capital World Bond Fund, or, collectively, the CRMC Funds. |
The number of Shares that may be offered hereby consists of 2,348,182 shares of Common Stock which weincludes (i) 1,092,958 Shares owned by American High-Income Trust, (ii) 187,562 Shares owned by Capital Income Builder, (iii) 16,564 Shares owned by CGGHIO, (iv) 359 Shares owned by CGUY, (v) 856,478 Shares owned by The Income Fund of America, (vi) 232 Shares owned by American Funds Multi-Sector Income Fund, (vii) 86,354 Shares owned by American Funds Insurance Series – Asset Allocation Fund, (viii) 28,784 Shares owned by American Funds Insurance Series – American High-Income Trust, (ix) 12,700 Shares owned by American Funds Insurance Series – Capital World Bond Fund and (x) 66,191 shares of Common Stock owned by Capital World Bond Fund. CRMC, as investment adviser to each of the CRMC Funds, may be deemed to have or to share voting and dispositive power with respect to the Common Stock owned by the CRMC Funds. David A. Daigle, as portfolio manager, has voting and investment power over the shares of Common Stock held by CGGHIO and Shannon Ward, as portfolio manager, has voting and investment power over the shares of Common Stock held by CGUY. The address for each of the CRMC Funds is Capital Research and Management Company, 333 South Hope Street, Los Angeles, California 90071.
| (6) | Based on information provided by Samuel Terry Asset Management Pty Ltd As Trustee For Samuel Terry Absolute Return Fund, or STAM. Frederick Raymond Woollard and Nigel Graham Burgess, as directors of STAM, may be deemed to share voting and dispositive power with respect to the shares of Common Stock owned by STAM. The address for STAM is 120B Underwood Street, Paddington NSW, 2021, Australia. |
| (7) | Based on information provided by KL Special Opportunities Master Fund Ltd, or KLSOMF. Massi Khadjenouri, Jan Lernout and Jamie Sherman, in their capacities as members of Kite Lake Capital Management (UK) LLP, the investment manager of KLSOMF, and John Lewis, Grant Jackson and Jan Manlee, the directors of KLSOMF, may be deemed to have voting and investment power over shares of Common Stock owned by KLSOMF. The address for KLSOMF is c/o Kite Lake Capital Management (UK) LLP, One Knightsbridge Green, London, SWIX 7QA. |
| (8) | According to information provided by AllianceBernstein L.P., the number of shares of Common Stock beneficially owned prior to the offering consists of 4,328,995 shares of Common Stock which includes (i) 845,334 shares of Common Stock owned by AB High Income Fund, Inc., (ii) 130,664 shares of Common Stock owned by AB Bond Fund, Inc. – AB Income Fund, (iii) 6,492 shares of Common Stock owned by AB Bond Fund, Inc. – AB High Yield Portfolio, (iv) 20,488 shares of Common Stock owned by The AB Portfolios – AB All Market Total Return Portfolio, (v) 134,770 shares of Common Stock owned by AllianceBernstein Global High Income Fund, Inc., (vi) 18,109 shares of Common Stock owned by AB SICAV I – All Market Income Portfolio, (vii) 3,002,103 shares of Common Stock owned by AB FCP I – Global High Yield Portfolio, (viii) 1,240 shares of Common Stock owned by AB SICAV I – Global Income Portfolio, (ix) 21,908 shares of Common Stock owned by AB SICAV I – US High Yield Portfolio, (x) 78,607 shares of Common Stock owned by Teachers’ Retirement System of Louisiana and (xi) 69,280 shares of Common Stock owned by AB Collective Investment Trust Series – AB US High Yield Collective Trust, or, collectively, the AllianceBernstein Funds. |
The number of Shares that may be offered hereby consists of 759,342 shares of Common Stock which includes (i) 148,609 Shares owned by AB High Income Fund, Inc., (ii) 22,730 Shares owned by AB Bond
Fund, Inc. – AB Income Fund, (iii) 1,142 Shares owned by AB Bond Fund, Inc. – AB High Yield Portfolio, (iv) 3,643 Shares owned by The AB Portfolios – AB All Market Total Return Portfolio, (v) 23,444 Shares owned by AllianceBernstein Global High Income Fund, Inc., (vi) 3,169 Shares owned by AB SICAV I – All Market Income Portfolio, (vii) 526,435 Shares owned by AB FCP I – Global High Yield Portfolio, (viii) 218 Shares owned by AB SICAV I – Global Income Portfolio, (ix) 3,891 Shares owned by AB SICAV I – US High Yield Portfolio, (x) 13,807 Shares owned by Teachers’ Retirement System of Louisiana and (xi) 12,254 Shares owned by AB Collective Investment Trust Series – AB US High Yield Collective Trust. AllianceBernstein L.P., as investment manager to the AllianceBernstein Funds, may be deemed to have or to share voting and dispositive power with respect to the Common Stock owned by the AllianceBernstein Funds. The address for each of the AllianceBernstein Funds is 1345 Avenue of the Americas, New York, New York 10105.
| (9) | Based on information provided by The Mangrove Partners Master Fund, Ltd., or MPMF. Beneficial ownership is also claimed by (i) Mangrove Partners, which serves as the investment manager of MPMF, and (ii) Nathaniel August, who is the principal of Mangrove Partners. The business address for Mangrove Partners Master Fund, Ltd. is c/o Mangrove Partners, 645 Madison Avenue, 14th Floor, New York, NY 10022. |
| (10) | Based on information provided by Kore Fund LTD, or KF. J. Gary Kosinski, as investment manager of KF, may be deemed to have sole voting and dispositive power over the shares of Common Stock owned by KF. The address for KF is 1501 Corporate Drive, Suite 120, Boynton Beach, Florida 33426. |
| (11) | Based on information provided by MFP Partners, L.P., or MFPP. MFP Investors LLC, the general partner of MFPP, or MFP Investors, and Jennifer Cook Price, managing director of MFPP and MFP Investors, may be deemed to share voting and dispositive power over the shares of Common Stock owned by MFPP. The address for MFPP is 909 Third Ave., 33rd FL, New York, New York 10022. |
| (12) | Based on information provided by Empyrean Capital Overseas Master Fund, Ltd, or ECOMF. Empyrean Capital Partners, LP, serves as investment manager to ECOMF, and has voting and investment control of the shares held by ECOMF. Empyrean Capital, LLC serves as general partner of Empyrean Capital Partners, LP. Amos Meron is the managing member of Empyrean Capital, LLC, and as such may be deemed to have voting and dispositive control of the shares of Common Stock owned by ECOMF. The address for each of ECOMF, Empyrean Capital Partners, LP, Empyrean Capital, LLC and Amos Meron is c/o Empyrean Capital Partners, LP, 10250 Constellation Blvd., Suite 2950, Los Angeles, California 90067. |
| (13) | Based on information provided by Spark Quantitative Master Fund L.P., or SQMF. Spark Investment Management Ltd. and Spark Investment Management LLC are the general partner and investment manager of SQMF, respectively. Peter Laventhol is a director of Spark Investment Management Ltd. and the manager of Spark Investment Management LLC and, in such capacity, has sole voting and dispositive power with respect to the shares of Common Stock held directly by SQMF. As a result, Peter Laventhol has shared beneficial ownership (along with Spark Investment Management Ltd., Spark Investment Management LLC and SQMF) of the shares of Common Stock held directly by SQMF. The address for SQMF is 150 East 58th Street, Floor 26, New York, New York 10155. |
| (14) | Based on information provided by JKJ Special Situations Fund, LP, or JSSF. Broadbill Investment Partners LLC, as investment advisor of JSSF, and Jeffrey F. Magee, Jr. and Kurt Lageschulte, each as a managing member of Broadbill Investment Partners, LLC, may be deemed to have or to share voting and dispositive power over the shares of Common Stock owned by JSSF. The address for JSSF is 157 Columbus Avenue, 5th Floor, New York, New York 10023. |
| (15) | According to the information provided by Acer Tree Investment Management LLP, the number of shares of Common Stock beneficially owned prior to the offering consists of 464,294 shares of Common Stock which includes (i) 301,790 shares of Common Stock owned by Acer Tree Funds ICAV sub Fund Acer Tree Credit Opportunities Fund and (ii) 162,504 shares of Common Stock owned by Acer Tree Funds ICAV sub Fund Acer Tree Credit Opportunities Private Fund, or, collectively, the Acer Funds. The number of Shares that may be offered hereby consists of 114,730 shares of Common Stock which includes (i) 74,574 shares of Common Stock owned by Acer Tree Funds ICAV sub Fund Acer Tree Credit Opportunities Fund and (ii) 40,156 shares of Common Stock owned by Acer Tree Funds ICAV sub Fund Acer Tree Credit Opportunities Private Fund. Cabot Square Capital LLP, as investment manager, Acer Tree Investment |
| Management LLP, as investment adviser, and Elizabeth Beasley, Elaine Keegan and Robert Galione, each as director, share voting and dispositive power over the shares of Common Stock owned by the Acer Funds. Jaime Vieser has shared voting and dispositive power over the shares of Common Stock owned by Acer Tree Funds ICAV sub Fund Acer Tree Credit Opportunities Private Fund. The mailing address for each of the Acer Funds is One Connaught Place, London, W2 2ET, United Kingdom, the legal address being 5th Floor, The Exchange George’s Dock IFSC, Dublin 1, Ireland. |
| (16) | Based on information provided by Storm Fund II – Storm Bond Fund, or SBF. Storm Capital Management is the investment manager of SBF and Morten Venold is the responsible portfolio manager at the investment manager. In addition, Morten Astrup is the executive chairman of Storm Fund II – Storm Bond Fund and reserves the right to be involved in the daily investment management of the Fund and to take an active part in the investment decision making process. Together they form the portfolio management team, and may be deemed to share voting and dispositive power over the shares of Common Stock owned by SBF. The address for SBF is 1c, rue Gabriel Lippmann, 5365 Munsbach, Luxembourg. |
| (17) | Based on information provided by Oceanic Hedge Fund, or OHF. Oceanic Investment Management Limited is the investment manager of OHF. Alf Cato Brahde may be deemed a beneficial owner with voting and investment power over the shares held by OHF. The address for OHF is Oceanic Hedge Fund, 3rd Floor, St. Georges Court, Upper Church Street, Douglas, Isle of Man, IM1 1EE, United Kingdom. |
| (18) | Based on information provided by Namco Realty LLC. Igal Namdar, the CEO of Namco Realty LLC, may be deemed to have voting and dispositive power over the shares held by Namco Realty LLC. The address for Namco Realty LLC is 150 Great Neck Road, Suite 304, Great Neck, New York 11021. |
| (19) | Based on information provided by Ponderus Invest AB. Tapira Investment AB owns 97% of Ponderus Invest AB. Peter Edwall, the sole owner of Tapira Investment AB, may be deemed to have voting and dispositive power over the shares held by Ponderus Invest AB. The address for Ponderus Invest AB is c/o Fearnley Securities, P.O. Box 1158, Sentrum, N – 0107 Oslo, Norway. |
| (20) | According to the information provided by Altana Distressed Opportunities Fund SLP and Crescent 3 LTD, the number of shares of Common Stock beneficially owned prior to the offering consists of 222,926 shares of Common Stock which includes (i) 184,656 shares of Common Stock owned by Altana Distressed Opportunities Fund SLP and (ii) 38,270 shares of Common Stock owned by Crescent 3 LTD, or, collectively, the Altana Funds. The number of Shares that may be offered hereby consists of 36,507 shares of Common Stock which includes (i) 26,933 shares of Common Stock owned by Altana Distressed Opportunities Fund SLP and (ii) 9,574 shares of Common Stock owned by Crescent 3 LTD. Lee Robinson, as the beneficial owner of Crescent 3 LTD, and as the controlling shareholder of Altana Wealth SARL, the general partner of Altana Distressed Opportunities Fund SLP, has dispositive power over the shares of Common Stock owned by the Altana Funds. The address for each of the Altana Funds is c/o Altana Wealth SAM, 33 Avenue St Charles, 98000 Monaco. |
| (21) | Based on information provided by Steven Shaw, trustee of the Shaw Family 2008 Trust. Mr. Shaw, as trustee, has sole voting and dispositive power with respect to the shares of Common Stock owned by the Shaw Family 2008 Trust. The address for the Shaw Family 2008 Trust is 2211 Broadway Apt. 8L, New York, New York 10024. |
| (22) | Based on information provided by VV Capital Partners, LP, or VVCP. VV Capital GP, LLC, the general partner of VVCP, or VVCGP, and Venkat Venkatraman, managing member of VVCGP, may be deemed to share voting and dispositive power with respect to the shares of Common Stock owned by VVCP. The address for VVCP is 277 Park Street, Newton, Massachusetts 02458. |
| (23) | Based on information provided by Telecom AS. Kenneth Bern, owner and Chairman of the Board of Telecom AS, controls 100% of Telecom AS. Mr. Bern may be deemed to have voting and dispositive power over the shares of Common Stock held by Telecom AS. The address for Telecom AS is c/o Fearnley Securities, P.O. Box 1158, Sentrum, N – 0107 Oslo, Norway. |
| (24) | Based on information provided by Dendera Capital Fund, LP, or DCF. Geoffrey Arens, as managing partner of DCF, has sole voting and dispositive power over the shares of Common Stock owned by DCF. The address for DCF is 270 Lafayette Street, Suite 502, New York, New York 10012. |
| (25) | Based on information provided by Camaca AS. Herman Flinder, the sole owner of Camaca AS, may be deemed to have voting and dispositive power over the shares of Common Stock held by Camaca AS. The address for Camaca AS is c/o Fearnley Securities, P.O. Box 1158, Sentrum, N – 0107 Oslo, Norway. |
| (26) | According to the information provided by Elcano Special Situations SICAV, SA and Elcano High Yield Opportunities SIL, SA, the number of shares of Common Stock beneficially owned prior to the offering consists of 102,396 shares of Common Stock which includes (i) 69,335 shares of Common Stock owned by Elcano Special Situations SICAV, SA and (ii) 33,061 shares of Common Stock owned by Elcano High Yield Opportunities SIL, SA, or, collectively, the Elcano Funds. The number of Shares that may be offered hereby consists of 18,404 shares of Common Stock which includes (i) 12,462 shares of Common Stock owned by Elcano Special Situations SICAV, SA and (ii) 5,942 shares of Common Stock owned by Elcano High Yield Opportunities SIL, SA. Marc Battle de Balle Mercade has voting and dispositive power over the shares of Common Stock owned by the Elcano Funds. The address for Elcano Special Situations SICAV, SA is C/ Ortega Y Gasset, 7, Madrid 28006, Spain and the address for Elcano High Yield Opportunities SIL, SA is C/ Serrano, 37, 28001, Madrid, Spain. |
| (27) | According to the information provided by Skips AS Tudor, Toluma AS and Toluma Kreditt AS, the number of shares of Common Stock beneficially owned prior to the offering consists of 10,244 shares of Common Stock which includes (i) 2,872 shares of Common Stock owned by Skips AS Tudor, (ii) 2,872 shares of Common Stock owned by Toluma AS and (iii) 4,500 shares of Common Stock owned by Toluma Kreditt AS, or, collectively, the Toluma Funds, all of which may be offered hereby. Thomas Wilhelmsen, as Chairman of each of the Toluma Funds, has voting and dispositive power over the shares of Common Stock owned by the Toluma Funds. The address for each of the Toluma Funds is Strandveien 20, No -1366, Lysaker, Norway. |
| (28) | Based on information provided by Sjavarsyn. Bjarni Armannsson, the sole owner of Sjavarsyn, may be deemed to have voting and dispositive power over the shares of Common Stock held by Sjavarsyn. The address for Sjavarsyn is c/o Fearnley Securities, P.O. Box 1158, Sentrum, N – 0107 Oslo, Norway. |
| (29) | According to the information provided by Ironsides Strategic Income Trust and Ironsides Energy LLC, the number of shares of Common Stock beneficially owned prior to the offering consists of 12,546 shares of Common Stock which includes (i) 9,651 shares of Common Stock owned by Ironsides Strategic Income Trust and (ii) 2,895 shares of Common Stock owned by Ironsides Energy LLC, or, collectively, the Ironsides Funds, all of which may be offered hereby. Ironsides Partners LLC is the investment manager for each of the Ironsides Funds. Robert Knapp, President and CIO of Ironsides Energy LLC, may be deemed to have sole voting and dispositive power over the shares held by the Ironsides Funds. The mailing address for each of the Ironsides Funds is c/o Ironsides Partners LLC, One Mifflin Place, Suite 400, Cambridge, Massachusetts 02138. |
| (30) | Based on information provided by Egil Wickstrand Iversen. Mr. Iversen has sole voting and dispositive power with respect to the shares of Common Stock owned by him. The address for Mr. Iversen is c/o Fearnley Securities, P.O. Box 1158, Sentrum, N – 0107 Oslo, Norway. |
| (31) | According to the information provided by FuglesangDahl AS and Olav Grande, the number of shares of Common Stock beneficially owned prior to the offering consists of 14,936 shares of Common Stock which includes (i) 7,721 shares of Common Stock owned by FuglesangDahl AS and (ii) 7,215 shares of Common Stock owned by Olav Grande, all of which may be offered hereby. Mr. Grande has dispositive power over the shares of Common Stock owned by FuglesangDahl AS and by him. The address for each of FuglesangDahl AS and Mr. Grande is c/o Fearnley Securities, P.O. Box 1158, Sentrum, N – 0107 Oslo, Norway. |
| (32) | Based on information provided by Odeon Capital Group LLC, or OCG. Evan Schwartzberg and Mat Van Alstyne, as owners of OCG, may be deemed to have voting and dispositive power over the shares of Common Stock held by OCG. OCG is a registered broker-dealer. The address for OCG is 750 Lexington Avenue, 27th Floor, New York, New York 10022. |
| (33) | Based on information provided by Alexander J. Keoleian. Mr. Keoleian has sole voting and dispositive power with respect to the shares of Common Stock owned by him. The address for Mr. Keoleian is 6901 Stoneridge Dr., North Richland Hills, Texas 76182. |
| (34) | Based on information provided by AS Anakonda. Thomas Leskovsky, the sole owner of AS Anakonda, has sole voting and dispositive power over the shares of Common Stock held by Anakonda AS. The mailing address for AS Anakonda is c/o Fearnley Securities, P.O. Box 1158, Sentrum, N – 0107 Oslo, Norway. |
| (35) | Based on information provided by Svein Erik Nordang. Mr. Nordang has sole voting and dispositive power with respect to the shares of Common Stock owned by him. The address for Mr. Nordang is c/o Fearnley Securities, P.O. Box 1158, Sentrum, N – 0107 Oslo, Norway. |
| (36) | Based on information provided by Vendetta AS. Øivind Ekeland, the CEO of Vendetta AS, has sole voting and dispositive power over the shares of Common Stock held by Vendetta AS. The mailing address for Vendetta AS is c/o Fearnley Securities, P.O. Box 1158, Sentrum, N – 0107 Oslo, Norway. |
| (37) | Based on information provided by Petter Haugen. Mr. Haugen has sole voting and dispositive power with respect to the shares of Common Stock owned by him. The address for Mr. Haugen is c/o Fearnley Securities, P.O. Box 1158, Sentrum, N – 0107 Oslo, Norway. |
| (38) | Based on information provided by Andreas Thorendahl. Mr. Thorendahl has sole voting and dispositive power with respect to the shares of Common Stock owned by him. The address for Mr. Thorendahl is c/o Fearnley Securities, P.O. Box 1158, Sentrum, N – 0107 Oslo, Norway. |
| (39) | Based on information provided by Jens Harr. Mr. Harr has sole voting and dispositive power with respect to the shares of Common Stock owned by him. The address for Mr. Harr is c/o Fearnley Securities, P.O. Box 1158, Sentrum, N – 0107 Oslo, Norway. |
| (40) | Based on information provided by Eirik Underthun. Mr. Underthun has sole voting and dispositive power with respect to the shares of Common Stock owned by him. The address for Mr. Underthun is Midtaasen 14c, 1166, Oslo, Norway. |
Broker-Dealers
Certain selling stockholders are held responsible. Laws and regulations protecting the
environment have become more stringent in recent years,affiliates of registered broker-dealers. Odeon Capital Group LLC is a registered broker-dealer and may in some cases
impose "strict liability," renderingbe deemed to be an underwriter with respect to its Shares. To our knowledge, each selling stockholder that is a broker-dealer or an affiliate of a broker-dealer had no agreements or understandings, directly or indirectly, with any person liable for environmental damage
without regard to negligence or fault ondistribute the part of that person. These laws and
regulations may expose us to liability for the conduct of or conditions caused
by others or for acts that were in compliance with all applicable lawsShares at the time they were performed. of its acquisition of the Shares.
The applicationfollowing description of these requirements or the adoption
of new requirements could have a material adverse effect on our financial
position and results of operations.
OUR HOLDING COMPANY STRUCTURE RESULTS IN SUBSTANTIAL STRUCTURAL SUBORDINATION
AND MAY AFFECT OUR ABILITY TO MAKE PAYMENTS ON THE DEBENTURES.
The debentures are obligations exclusivelycertain terms of our company. We are a holding
companycapital stock and accordingly, substantially all operations are conducted by our
subsidiaries. As a result, our cash flow and our ability to service our debt,
including the debentures, is dependent upon the earningsrelated provisions of our subsidiaries. In
addition, we are dependent on the distribution of earnings, loans or other
payments by our subsidiaries to us.
Our subsidiaries are separateThird Amended and distinct legal entities. Our subsidiaries
have no obligation to pay any amounts due on the debentures or to provide us
with funds for our payment obligations, whether by dividends, distributions,
loans or other payments. In addition, any payment of dividends, distributions,
loans or advances by our subsidiaries to us could be subject to statutory or
contractual restrictions. Payments to us by our subsidiaries will also be
contingent upon their earnings and business considerations.
Our right to receive any assets of any of our subsidiaries upon their
liquidation or reorganization, and therefore the right of the holders of the
debentures to participate in those assets, will be effectively subordinated to
the claims of that subsidiary's creditors, including trade creditors. In
addition, even if we were a creditor of any of our subsidiaries, our rights as a
creditor would be subordinate to any security interest in the assets of our
subsidiaries and any indebtedness of our subsidiaries senior to that held by us.
WE MAY NOT HAVE THE ABILITY TO RAISE THE FUNDS NECESSARY TO FINANCE THE CHANGE
IN CONTROL PURCHASE OR THE PURCHASE AT THE OPTION OF THE HOLDER.
Upon the occurrence of certain specific kinds of change in control events
and on the April 15, 2008 purchase date, holders of debentures will have the
right to require us to purchase their debentures. However, it is possible that
we will not have sufficient funds at such time to make the required purchase of
debentures or that restrictions in credit agreements that we may enter into or
instruments governing other issuances or incurrences of indebtedness will not
allow such purchases. See "Description of the Debentures -- Purchase of
Debentures by Us at the Option of the Holder" and "-- Change in Control Permits
Purchase of Debentures by Us at the Option of the Holder."
WE ARE CONTROLLED BY A SOLE STOCKHOLDER, WHICH COULD RESULT IN POTENTIAL
CONFLICTS OF INTEREST.
Loews Corporation, which we refer to as Loews, beneficially owns 52.5% of
our outstanding shares of common stock and is in a position to control actions
that require the consent of stockholders, including the election of directors,
amendment of our Restated Certificate of Incorporation, and any merger or sale of
substantially all of our assets. In addition, three officers of Loews serve on
our Board of Directors. One of those, James S. Tisch, the Chief Executive
Officer and Chairman of the Board of our company, is also a director of Loews.
We have also entered into a services agreement and a registration rights
agreement with Loews and we may in the future enter into other agreements with
Loews.
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Loews and its subsidiaries (other than us) and we are generally engaged in
businesses sufficiently different from each other as to make conflicts as to
possible corporate opportunities unlikely. However, it is possible that Loews
may in some circumstances be in direct or indirect competition with us,
including competition with respect to certain business strategies and
transactions that we may propose to undertake. In addition, potential conflicts
of interest exist or could arise in the future for such directors with respect
to a number of areas relating to the past and ongoing relationships of Loews and
us, including tax and insurance matters, financial commitments and sales of
common stock pursuant to registration rights or otherwise. Although the affected
directors may abstain from voting on matters in which our interests and those of
Loews are in conflict so as to avoid potential violations of their fiduciary
duties to stockholders, the presence of potential or actual conflicts could
affect the process or outcome of Board deliberations, and we have not adopted
any policies, procedures or practices to reduce or avoid these conflicts. We
cannot assure you that these conflicts of interest will not materially adversely
affect us.
THE SALE OF SHARES AVAILABLE FOR FUTURE SALE COULD HURT OUR COMMON STOCK PRICE.
Subject to some restrictions and applicable laws, Loews is free to sell any
and all of the shares of our common stock that it owns. We cannot predict the
effect, if any, that future sales of common stock, or the availability of common
stock for future sale, may have on the market price of our common stock
prevailing from time to time. Sales of substantial amounts of common stockCOI, and Second Amended and Restated Bylaws, or the perception that such sales might occur could adversely affect prevailing
market prices for our common stock. In connection with the initial public
offering of our common stock, we entered intoBylaws, is only a registration rights agreement
with Loews that provides Loews with rights to have the shares of common stock
owned by Loews registered by us under the Securities Act in order to permit the
unrestricted public sale of such shares.
THERE IS CURRENTLY NO TRADING MARKET FOR THE DEBENTURES.
The debentures comprise a new issue of securities for which there is
currently no public market. If the debentures are traded after their initial
issuance, they may trade at a discount from their initial offering price,
depending on prevailing interest rates, the market for similar securities, our
performancesummary and other factors. To the extent that an active trading market for
the debentures does not develop, the liquidity and trading prices for the
debentures may be harmed. We do not currently intend to apply to list the
debentures on any securities exchange or public market.
THE AMOUNT YOU MUST INCLUDE IN YOUR INCOME FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES WILL EXCEED THE AMOUNT OF CASH INTEREST YOU RECEIVE.
The debentures will be characterized as indebtedness of ours for United
States federal income tax purposes. Accordingly, you will be required to
include, in your gross income, interest with respect to the debentures. The
debentures will constitute contingent payment debt instruments. As a result, you
will be required to include in your gross income each year amounts of interest
in excess of the cash yield to maturity of the debentures. You will recognize
gain or loss on the sale, purchase by us at your option, conversion or
redemption of a debenture in an amount equal to the difference between the
amount realized on the sale, purchase by us at your option, conversion or
redemption, including the fair market value of any common stock received upon
conversion or otherwise, and your adjusted tax basis in the debenture. Any gain
recognized by you on the sale, purchase by us at your option, conversion or
redemption of a debenture generally will be ordinary interest income; any loss
will be ordinary loss to the extent of the interest previously included in
income and, thereafter, capital loss. A summary of the United States federal
income tax consequences of ownership of the debentures is described in this
prospectus under the heading "Certain United States Federal Income Tax
Considerations."
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USE OF PROCEEDS
We will not receive any proceeds from the sale by the selling
securityholders of the debentures or the shares of common stock issuable upon
conversion of the debentures.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for each of the periods shown is as
follows:
YEAR ENDED DECEMBER 31,
QUARTER ENDED ------------------------------------
MARCH 31, 2001 2000 1999 1998 1997 1996
-------------- ---- ----- ----- ----- -----
Ratio of earnings to fixed
charges......................... 7.18 4.97 15.64 37.57 28.94 31.56
For all periods presented, we have computed the ratio of earnings to fixed
charges on a total enterprise basis. Earnings represent income from continuing
operations plus income taxes and fixed charges. Fixed charges include (i)
interest, whether expensed or capitalized, (ii) amortization of debt issuance
costs, whether expensed or capitalized, and (iii) one-third of rent expense,
which we believe represents the interest factor attributable to rent.
DESCRIPTION OF CAPITAL STOCK
Diamond Offshore Drilling, Inc. is a Delaware corporation. The following
summary does not purport to be completecomplete. It is qualified in its entirety by reference to, and should be read in conjunction with, the full text of the COI and Bylaws, which have been filed as exhibits to the registration statement of which this prospectus is subject in all respects toa part, and the applicable provisions of the Delaware General Corporation Law, or DGCL,the DGCL. For more information on how you can obtain the COI and our
Restated Certificate of Incorporation. Our companythe Bylaws, see “Where You Can Find More Information.” We urge you to read the COI and Bylaws in their entirety.
General
The COI provides that the Company is presently authorized to issue 500,000,000800,000,000 shares of commoncapital stock, consisting of 750,000,000 shares of Common Stock, par value $0.01$0.0001 per share, and 25,000,00050,000,000 shares of preferred stock, par value $0.01$0.0001 per share,share. As of May 2, 2022, the rightsCompany had outstanding an aggregate of 100,074,818 shares of Common Stock and preferencesno shares of which may be established from time to time by our Boardpreferred stock. All outstanding shares of Directors.
the Company’s Common Stock are duly authorized, validly issued, fully paid and nonassessable.
Common Stock
Voting Rights
Subject to such preferential rights as may be granted by ourthe Company’s Board of Directors in connection with the future issuance of our preferred stock, holders of common stockCommon Stock are entitled to one vote for each share held. Holdersheld on all matters on which stockholders generally are not entitled to cumulative voting for the purpose of electing directors and have no
preemptivevote. Except as otherwise required by law or similar right to subscribe for, or to purchase, any shares of
common stock or other securities we may issueprovided in the future. Accordingly,COI, at any annual or special meeting of stockholders, the holders of more than 50% in voting powershares of Common Stock shall have the right to vote on all matters properly submitted to a vote of the shares of common stock voting
generally for the election of directors will be able to elect all of our
directors. At June 1, 2001, Loews beneficially owned 52.5% of the outstanding
shares of common stockstockholders.
Conversion, Redemption and was in a position to control actions that require the
consent of stockholders, including the election of directors, amendment of our
Restated Certificate of Incorporation and any mergers or any sale of
substantially all of our assets.
Preemptive Rights
Holders of shares of common stockCommon Stock have no exchange, conversion or preemptive rights and such shares of common stock are not subject to redemption. All
outstanding shares of common stock are, and upon issuance and full payment of
the purchase price therefor the shares of common stock issuable upon conversion
of the debentures offered hereby will be, duly authorized, validly issued, fully
paid and nonassessable.
Liquidation Rights
Subject to the prior rights if any, of holdersand preferences of any outstanding class orthen-outstanding series of preferred stock, having a preference in relationthe event of any liquidation, dissolution or winding up of the Company, the funds and assets of the Company that may be legally distributed to the commonCompany’s stockholders will be distributed among the holders of the then outstanding shares of Common Stock pro rata in accordance with the number of shares of Common Stock held by each such holder.
Dividend Rights
Subject to the rights of any then-outstanding series of preferred stock, as to distributions upon the dissolution, liquidation and
winding-up of our company and as to dividends, holders of shares of common stock
are entitled to share ratably in all assets of our company that remain after
payment in full of all of our debtsCommon Stock may receive dividends when, as and liabilities, and to receive ratably such
dividends, if any, as may be declared by our Board of Directors from time to
time out of funds and other property legally available therefor.
Our Board of Directors is authorized, without further action by our
stockholders, to issuein accordance with applicable law.
No Sinking Fund
The shares of preferred stock in one or more series. Common Stock have no sinking fund provisions.
Preferred Stock
The Board has discretion to determine the rights, preferences, privileges and
limitationsfollowing description of each series, including voting rights, dividend rights, conversion
rights, redemption privileges and liquidation preferences. Satisfaction of any
dividend preference of outstanding shares of preferred stock would reduce the
amount of funds available for the payment of dividends on
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shares of common stock. In some circumstances, the issuance of shares of
preferred stock could adversely affect the voting powercertain general terms of the holders of commonpreferred stock and may render more difficult or tend to discourage a merger, tender offer
or proxy contest, the assumption of control by a holder of a large block of our
securities or the removal of incumbent management.
We are subject to Section 203 of the DGCL. In general, Section 203 will
prevent an "interested stockholder," which is defined generally as a person
owning 15% or more of a corporation's outstanding voting stock, of our company
from engaging in a "business combination" with us for three years following the
date that person became an interested stockholder, unless:
- before that person became an interested stockholder, our Board of
Directors approved the business combination in question, or the
transaction which resulted in such person becoming an interested
stockholder;
- upon consummation of the transaction that resulted in the interested
stockholder becoming such, the interested stockholder owns at least 85%
of our voting stock outstanding at the time the transaction commenced,
excluding stock held by directors who are also officers of our company
and by employee stock plans that do not provide employees with rights to
determine confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer; or
- following the transaction in which that person became an interested
stockholder, the business combination is approved by our Board of
Directors and authorized at a meeting of stockholders by the affirmative
vote of the holders of not less than 66 2/3% of our outstanding voting
stock not owned by the interested stockholder.
Under Section 203, the restrictions described above do not apply to certain
business combinations proposed by an interested stockholder following the
announcement (or notification) of one of certain extraordinary transactions
involving our company and a person who had not been an interested stockholder
during the preceding three years or who became an interested stockholder with
the approval of our Board of Directors, and which transactions are approved or
not opposed by a majority of the members of our Board of Directors then in
office who were directors prior to any person becoming an interested stockholder
during the previous three years or were recommended for election or elected to
succeed such directors by a majority of such directors. Section 203 does not
apply to Loews because it has been more than three years since Loews became an
interested stockholder.
Our common stock is listed on The New York Stock Exchange and trades under
the symbol "DO."
The transfer agent and registrar for the common stock is Mellon Investor
Services, L.L.C., whose principal offices are located at 44 Wall Street, New
York, New York 10005.
DESCRIPTION OF THE DEBENTURES
We issued the debentures pursuant to the indenture dated as of February 4,
1997, between us and The Chase Manhattan Bank, as trustee, as supplemented by a
third supplemental indenture dated as of April 11, 2001 governing the
debentures. We refer to the principal indenture, as so supplemented, as the
"indenture."
The following summary does not purport to be complete and is subject to, and is qualified in its entirety by reference to all of the provisions of the
debentures and the indenture. We urge you to read the indenture, the form of the
debentures and the registration rights agreement, which you may obtain from us
upon request. As used in this description, all references to "our company" or to
"we," "us" or "our" mean Diamond Offshore Drilling, Inc., excluding, unless
otherwise expressly stated or the context otherwise requires, its subsidiaries.
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GENERAL
The debentures:
- will be issued only in registered form without coupons in denominations
of $1,000 and any integral multiple of $1,000 above that amount;
- will be limited to $460,000,000 aggregate principal amount;
- will mature on April 15, 2031; and
- will accrue interest at a rate of 1 1/2% per year from April 11, 2001 or
from the most recent interest payment date to which interest has been
paid or duly provided, payable semiannually in arrears on April 15 and
October 15 of each year, beginning October 15, 2001.
Interest will be paid to the person in whose name a debenture is registered
at the close of business on the April 1 or October 1, as the case may be,
immediately preceding the relevant interest payment date. Interest on the
debentures will be computed on the basis of a 360-day year composed of twelve
30-day months.
If any interest payment date, maturity date, redemption date or purchase
date of a debenture falls on a day that is not a business day, the required
payment of principal and interest will be made on the next succeeding business
day as if made on the date that the payment was due and no interest will accrue
on that payment for the period from and after that interest payment date,
maturity date, redemption date or purchase date, as the case may be, to the date
of that payment on the next succeeding business day. The term "business day"
means, with respect to any debenture, any day other than a Saturday, a Sunday or
a day on which banking institutions in The City of New York are authorized or
required by law, regulation or executive order to close.
The debentures are redeemable prior to maturity only on or after April 15,
2008, as described below under "-- Redemption of Debentures at Our Option," and
do not have the benefit of a sinking fund. Principal of and interest on the
debentures will be payable at the office of the paying agent, which initially
will be an office or agency of the trustee, or an office or agency maintained
for such purpose, in the Borough of Manhattan, The City of New York. The
debentures may be presented for conversion at the office of the conversion
agent, and for registration of transfer or exchange at the office of the
registrar, each such agent initially being the trustee. No service charge will
be made for any registration of transfer or exchange of debentures, but we may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
The debentures are debt instruments subject to the United States federal
income tax contingent payment debt regulations. The debentures were issued with
original issue discount for United States federal income tax purposes. Even if
we do not pay any contingent interest on the debentures, holders will be
required to include in their gross income for United States federal income tax
purposes an amount of interest in excess of regular cash interest. The rate at
which the original issue discount will accrue will exceed the stated yield of
1 1/2% for the regular cash interest described above. See "Certain United States
Federal Income Tax Considerations."
Each holder agrees in the indenture to treat the debentures, for United
States federal income tax purposes, as "contingent payment debt instruments" and
to be bound by our application of the Treasury regulations that govern
contingent payment debt instruments, including our determination that the rate
at which interest will be deemed to accrue for federal income tax purposes will
be 6 1/2%, which we have determined to be the rate comparable to the fixed rate
at which we would borrow on a noncontingent, nonconvertible debt security.
Accordingly, each holder will be required to accrue interest on a constant yield
to maturity basis at that rate, with the result that a holder will recognize
taxable income significantly in excess of cash received while the debentures are
outstanding. In addition, a holder will recognize ordinary income upon a
conversion of a debenture into our common stock. However, the proper United
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States federal income tax treatment of a holder of a debenture is uncertain in
various respects. See "Certain United States Federal Income Tax Considerations."
Maturity, conversion, purchase by us at the option of a holder or
redemption of a debenture will cause interest, regular and contingent, if any,
to cease to accrue on such debenture. We may not reissue a debenture that has
matured or been converted, purchased by us at the option of a holder, redeemed
or otherwise cancelled, except for registration of transfer, exchange or
replacement of such debenture.
RANKING OF DEBENTURES
The debentures are unsecured and unsubordinated obligations. The debentures
rank equal in right of payment to all of our existing and future unsecured and
unsubordinated indebtedness. However, we are a holding company and the
debentures will be effectively subordinated to all existing and future
obligations of our subsidiaries. See "Risk Factors -- Our holding company
structure results in substantial structural subordination and may affect our
ability to make payments on the debentures."
As of March 31, 2001, we had approximately $810.4 million of total
indebtedness outstanding. As of March 31, 2001, our subsidiaries had
approximately $56.1 million of outstanding obligations.
CONVERSION RIGHTS
You have the right to convert debentures, in multiples of $1,000 principal
amount, into shares of our common stock. You may convert a debenture into shares
of common stock at any time before the close of business on April 15, 2031. If a
debenture has been called for redemption, you will be entitled to convert the
debenture only until the close of business on the business day immediately
preceding the date of redemption. A debenture for which a holder has delivered a
purchase notice or a change in control purchase notice requiring us to purchase
the debenture may be converted only if such notice is withdrawn in accordance
with the indenture.
The initial conversion rate is 20.3978 shares of common stock for each
$1,000 principal amount of debentures, subject to adjustment upon the occurrence
of the events described below. We will pay for any fractional share an amount of
cash based on the sale price (as defined below) of the common stock on the
trading day immediately preceding the conversion date.
Our delivery to the holder of the fixed number of shares of common stock
into which the debenture is converted, together with any cash payment for
fractional shares, or cash in lieu thereof, will be deemed to satisfy our
obligation to pay:
- the principal amount of the debenture;
- the accrued regular cash interest attributable to the period from the
most recent interest payment date (or, if no interest payment date has
occurred, from April 11, 2001), to the conversion date; and
- the accrued contingent interest, if any, attributable to the most recent
accrual date.
If debentures are converted after the record date for the payment of
regular interest or, if contingent interest is payable to holders of debentures
during any particular six-month period, after the accrual date for such
contingent interest, holders of such debentures at the close of business on the
record or accrual date, as the case may be, will receive the regular or
contingent interest payable on such debentures on the corresponding interest
payment date notwithstanding the conversion. In such case, the debentures upon
surrender must be accompanied by funds equal to the amount of regular or
contingent interest payable on the principal amount of the debentures so
converted, unless such debentures have been called for redemption, in which case
no such payment shall be required.
A certificate for the number of full shares of common stock into which any
debenture is converted, together with any cash payment for fractional shares,
will be delivered through the conversion agent as soon as practicable following
the conversion date. For a discussion of the United States federal income tax
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treatment of a holder receiving shares of common stock upon conversion, see
"Certain United States Federal Income Tax Considerations -- Sale, Exchange,
Conversion or Redemption."
In lieu of delivery of shares of our common stock upon notice of conversion
of any debentures (for all or any portion of the debentures), we may elect to
pay holders surrendering debentures an amount in cash per debenture equal to the
average sale price of our common stock for the five consecutive trading days
immediately following (a) the date of our notice of our election to deliver cash
as described below if we have not given notice of redemption, or (b) the
conversion date, in the case of conversion following our notice of redemption
specifying that we intend to deliver cash upon conversion, in either case
multiplied by the conversion rate in effect on that date. We will inform the
holders through the trustee no later than two business days following the
conversion date of our election to deliver shares of our common stock or to pay
cash in lieu of delivery of the shares, unless we have already informed holders
of our election in connection with our optional redemption of the debentures as
described under "-- Redemption of Debentures at Our Option." If we elect to
deliver all of such payment in shares of our common stock, the shares will be
delivered through the conversion agent no later than the fifth business day
following the conversion date. If we elect to pay all or a portion of such
payment in cash, the payment, including any delivery of our common stock, will
be made to holders surrendering debentures no later than the tenth business day
following the applicable conversion date. If an event of default, as described
under "-- Events of Default; Waiver and Notice" below (other than a default in a
cash payment upon conversion of the debentures), has occurred and is continuing,
we may not pay cash upon conversion of any debentures (other than cash for
fractional shares).
To convert a debenture, a holder must:
- complete and manually sign the conversion notice on the back of the
debenture (or complete and manually sign a facsimile of such notice) and
deliver such notice to the conversion agent;
- surrender the debenture to the conversion agent;
- if required, furnish appropriate endorsements and transfer documents; and
- if required, pay all transfer or similar taxes.
The indenture provides that the date on which all of the requirements for
delivery of a debenture for conversion have been satisfied is the "conversion
date."
The conversion rate will be subject to adjustment upon the following
events:
- dividends or distributions on our common stock payable in shares of our
common stock;
- subdivisions or combinations of our common stock;
- issuances to all or substantially all holders of shares of our common
stock of rights or warrants that allow such holders to purchase shares of
our common stock (or securities convertible into shares of our common
stock) for a period expiring within 60 days of the record date for
determination of the holders entitled to receive such rights or warrants
at a price per share (or having a conversion price per share) less than
the current market price per share on such record date;
- distributions to all or substantially all holders of shares of our common
stock of any shares of capital stock (other than dividends or
distributions of common stock on common stock described above), any debt
or other assets (excluding distributions of rights and warrants described
above and all-cash distributions);
- distributions to all or substantially all holders of shares of our common
stock consisting solely of cash in an aggregate amount that, together
with (1) any cash and the fair market value of any other consideration
payable in respect of any tender offer by us or any of our subsidiaries
for shares of common stock consummated within the 12 months preceding the
date we declare such distribution not triggering a conversion rate
adjustment and (2) all other cash distributions to all or substantially
all holders of shares of our common stock made within the 12 months
preceding such
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date of declaration not triggering a conversion rate adjustment, exceeds
an amount equal to 12.5% of the market capitalization of our shares of
common stock on the business day immediately preceding such date of
declaration; and
- purchases of shares of common stock pursuant to a tender offer made by us
or any of our subsidiaries involving aggregate consideration that,
together with (1) any cash and the fair market value of any other
consideration payable in respect of any tender offer by us or any of our
subsidiaries for shares of common stock consummated within the 12 months
preceding the expiration date of such tender offer not triggering a
conversion rate adjustment and (2) all cash distributions to all or
substantially all holders of shares of our common stock made within the
12 months preceding such expiration date not triggering a conversion rate
adjustment, exceeds an amount equal to 12.5% of the market capitalization
of our shares of common stock on such expiration date.
If we were to adopt a stockholders rights plan under which we issue rights
providing that each share of common stock issued upon conversion of the
debentures at any time prior to the distribution of separate certificates
representing such rights will be entitled to receive such rights, there shall
not be any adjustment to the conversion rate as a result of:
- the issuance of the rights;
- the distribution of separate certificates representing the rights;
- the exercise or redemption of such rights in accordance with any rights
agreement; or
- the termination or invalidation of the rights.
We may increase the conversion rate as permitted by law for at least 20
days, so long as the increase is irrevocable during the period. We are not
required to adjust the conversion rate until adjustments greater than 1% have
occurred.
In the event of:
- a taxable distribution to holders of shares of our common stock which
results in an adjustment of the conversion rate; or
- an increase in the conversion rate at our discretion,
the holders of the debentures may, in certain circumstances, be deemed to have
received a distribution subject to federal income tax as a dividend. See
"Certain United States Federal Income Tax Considerations -- Constructive
Dividends."
In the event:
- certain reclassifications of shares of our common stock occur;
- we are a party to a consolidation or merger pursuant to which the shares
of our common stock would be converted into cash, securities or other
property; or
- we sell or convey all or substantially all of our property and assets to
any person,
at the effective time of the transaction, the right to convert a debenture into
shares of common stock will be changed into a right to convert it into the kind
and amount of cash, securities or other property of ours or another person which
the holder would have received if the holder had converted the holder's
debentures immediately prior to the transaction. This assumes that a holder of
debentures would not have exercised any rights of election as to the
consideration receivable in connection with the transaction. If such transaction
also constitutes a change in control, the holder will be able to require us to
purchase all or a portion of such holder's debentures as described under
"-- Change in Control Permits Purchase of Debentures by Us at Option of the
Holder."
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In the event that we were a party to such a transaction as described above,
each debenture would become convertible into the cash, securities or other
property receivable by a holder of the number of shares of common stock into
which such debenture was convertible immediately prior to such transaction. This
change could substantially lessen or eliminate the value of the conversion
privilege associated with the debentures in the future. For example, if we were
acquired in a cash merger, each debenture would become convertible solely into
cash and would no longer be convertible into securities whose value would vary
depending on our future prospects and other factors.
CONTINGENT INTEREST
Subject to the accrual and record date provisions described below, we will
pay contingent interest to the holders of debentures during any six-month period
from April 16 to October 15 and from October 16 to April 15, commencing April
16, 2008, if the average market price of a debenture for the five trading days
ending on the second trading day immediately preceding the relevant six-month
period equals 120% or more of the principal amount of such debenture and we pay
a regular cash dividend during such six-month period. Notwithstanding the above,
if we declare a dividend for which the record date falls prior to the first day
of a six-month period but the payment date falls within such six-month period,
then the five trading day period for determining the average market price of a
debenture will be the five trading days ending on the second trading day
immediately preceding such record date.
The amount of contingent interest payable per debenture in respect of any
quarterly period will equal 50% of regular cash dividends, if any, paid by us
per share on our common stock during that quarterly period multiplied by the
number of shares of common stock issuable upon conversion of a debenture.
Contingent interest, if any, will accrue and be payable to holders of
debentures as of the record date for the related common stock dividend. Such
interest will be paid on the payment date of the related common stock dividend.
Regular cash interest will continue to accrue at the rate of 1 1/2% per year on
the principal amount of the debentures whether or not contingent interest is
paid.
Regular cash dividends are quarterly or other periodic cash dividends on
our common stock as declared by our Board of Directors as part of its cash
dividend payment practices and that are not designated by them as extraordinary
or special or other nonrecurring dividends. There can be no assurance that we
will pay regular cash dividends or as to the regularity or amount of any
dividends we may pay from time to time.
The market price of a debenture on any date of determination means the
average of the secondary market bid quotations per debenture obtained by the bid
solicitation agent for $10 million principal amount of debentures at
approximately 4:00 p.m., New York City time, on such determination date from
three unaffiliated securities dealers we select, provided that if:
- at least three such bids are not obtained by the bid solicitation agent,
or
- in our reasonable judgment, the bid quotations are not indicative of the
secondary market value of the debentures,
then the market price of the debentures will equal (a) the then applicable
conversion rate of the debentures multiplied by (b) the average sale price of
our common stock on the five trading days ending on such determination date,
appropriately adjusted.
The bid solicitation agent will initially be The Chase Manhattan Bank. We
may change the bid solicitation agent, but the bid solicitation agent will not
be our affiliate. The bid solicitation agent will solicit bids from securities
dealers that are believed by us to be willing to bid for the debentures.
Upon determination that holders of the debentures will be entitled to
receive contingent interest which may become payable during a relevant six-month
period, on or prior to the start of such six-month period, we will issue a press
release and publish such information on our Web site on the World Wide Web or
through such other public medium as we may use at that time.
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REDEMPTION OF DEBENTURES AT OUR OPTION
Prior to April 15, 2008, the debentures will not be redeemable at our
option. Beginning on April 15, 2008, we may redeem the debentures for cash at
any time as a whole, or from time to time in part, at a price equal to 100% of
the principal amount of the debentures to be redeemed plus accrued and unpaid
interest to, but excluding, the date of redemption. We will give not less than
15 days' nor more than 60 days' notice of redemption by mail to holders of the
debentures. The notice of redemption will inform the holders of our election to
deliver shares of our common stock or to pay cash in lieu of delivery of the
shares with respect to any debentures converted prior to the redemption date.
If we decide to redeem fewer than all of the outstanding debentures, the
trustee will select the debentures to be redeemed in principal amounts of $1,000
or integral multiples of $1,000. In this case, the trustee may select the
debentures by lot, pro rata, or by another method the trustee considers fair and
appropriate.
If the trustee selects a portion of your debentures for partial redemption
and you convert a portion of your debentures, the converted portion will be
deemed to be the portion selected for redemption.
PURCHASE OF DEBENTURES BY US AT THE OPTION OF THE HOLDER
You have the right to require us to purchase your debentures on April 15,
2008. We will be required to purchase, at a purchase price equal to 100% of the
principal amount thereof plus accrued and unpaid interest to, but excluding, the
purchase date, any outstanding debenture for which a written purchase notice has
been properly delivered by the holder to the paying agent and not withdrawn,
subject to certain additional conditions. We may also add dates on which you may
require us to purchase all or a portion of your debentures. However, we cannot
assure you that we will add any purchase dates. You may submit your debentures
for purchase to the paying agent at any time from the opening of business on the
date that is 20 business days prior to the purchase date until the close of
business on the purchase date. Also, our ability to satisfy our purchase
obligations may be affected by the factors described in "Risk Factors" under the
heading "We may not have the ability to raise the funds necessary to finance the
change in control purchase or the purchase at the option of the holder."
We may, at our option, elect to pay the purchase price in cash or shares of
common stock, or any combination thereof. For a discussion of the tax treatment
of a holder receiving cash, shares of common stock or any combination thereof,
see "Certain United States Federal Income Tax Considerations -- Sale, Exchange,
Conversion or Redemption."
We will be required to give notice on a date not less than 20 business days
prior to the purchase date to all holders at their addresses shown in the
register of the registrar, and to beneficial owners as required by applicable
law, stating among other things:
- whether we will pay the purchase price of the debentures in cash or
shares of common stock or any combination thereof, and specifying the
percentages of each;
- if we elect to pay in shares of common stock the method of calculating
the market price of the common stock; and
- the procedures that holders must follow to require us to purchase their
debentures.
Your purchase notice electing to require us to purchase your debentures
must state:
- if certificated debentures have been issued, the debenture certificate
numbers, or if not, must comply with appropriate DTC procedures;
- the portion of the principal amount of debentures to be purchased, in
integral multiples of $1,000;
- that we are to purchase the debentures pursuant toCOI, the applicable provisions of the debenturesDGCL and the indenture;certificate of designation that relates to the particular series of preferred stock.
The Company may issue preferred stock in one or more series from time to time, with each such series to consist of such number of shares and 17
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-to have such powers, designations, preferences and relative, participating, optional or other rights, and the qualifications, limitations or restrictions thereof, if any, as shall be stated in the event we elect, pursuantresolution or resolutions providing for the issuance of such series adopted by our Board of Directors.
It is not possible to state the notice that we are required to
give, to payactual effect of the purchase price inissuance of any shares of commonpreferred stock in whole or in
part, butupon the purchase price is ultimately to be paid to the holder
entirely in cash because anyrights of the conditions to paymentCompany’s shares of Common Stock until the Board of Directors determines the specific rights of the purchase
price or portionholders of any series of preferred stock of the purchaseCompany. However, these effects might include, among others:
restricting dividends on the Common Stock;
diluting the voting power of the Common Stock;
impairing the liquidation rights of the Common Stock; and
delaying or preventing a change of control of the Company.
Anti-Takeover Considerations
Some provisions of Delaware law, the COI and the Bylaws summarized below could make certain change of control transactions more difficult, including acquisitions of the Company by means of a tender offer, proxy contest or otherwise, as well as removal of the incumbent directors. These provisions may have the effect of preventing changes in management. It is possible that these provisions would make it more difficult to accomplish or deter transactions that a stockholder might consider in its best interest, including those attempts that might result in a premium over the market price infor shares of common stock is not
satisfied priorthe Common Stock.
Number, Election and Removal of Directors
The Board of Directors consists of eight members, which may be increased from time to the close of business on the purchase date, as
described below, whether the holder elects:
1. to withdraw the purchase notice as to some or alltime by resolution adopted by a majority of the debentures
to which it relates; or
2. to receive cash in respectBoard. The directors of the entire purchase price for all
debentures or portions of debentures subject to such purchase notice.
If you fail to indicate your choiceCompany are classified with respect to the election describedtime for which they severally hold office into three classes, designated as Class I, Class II and Class III. Each class of directors consists, as nearly as possible, of one third of the total number of directors constituting the whole Board. The initial Class I directors served for a term that expired at the first annual meeting of the stockholders following the Effective Date, which was held on January 21, 2022; the initial Class II directors will serve for a term expiring at the second annual meeting of the stockholders following the Effective Date; and the initial Class III directors will serve for a term expiring at the third annual meeting of the stockholders following the Effective Date. At each annual meeting of stockholders of the Company beginning with the first annual meeting of stockholders following the Effective Date that was held on January 21, 2022, the successors of the class of directors whose term expires at that meeting will be elected to hold office for a term expiring at the annual meeting of stockholders held in the final bullet point above, youthird year following the year of their election. Each director will hold office until his or her successor is duly elected and qualified or until his or her earlier death, resignation, disqualification or removal.
Subject to the rights of any then-outstanding series of preferred stock, the Board of Directors or any individual director may be deemed to have elected to receive
cash in respectremoved from office at any time, but only for cause and only by the affirmative vote of the entire purchase price for all debentures subject to the
purchase notice in these circumstances. Forholders of at least a discussionmajority of the tax treatment of
a holder receiving cash instead of shares of common stock, see "Certain United
States Federal Income Tax Considerations -- Sale, Exchange, Conversion or
Redemption."
You may withdraw any purchase notice by a written notice of withdrawal
delivered to the paying agent prior to the close of business on the purchase
date. The notice of withdrawal must state:
- the principal amount of the withdrawn debentures;
- if certificated debentures have been issued, the certificate numbers of
the withdrawn debentures, or if not, must comply with appropriate DTC
procedures; and
- the principal amount, if any, of debentures that remain subject to your
purchase notice.
If we elect to pay the purchase price, in whole or in part, in shares of
common stock, the number of shares to be delivered by us will be equal to the
portion of the purchase price to be paid in shares of common stock divided by
the market price of one share of common stock. We will pay cash based on the
market price for all fractional shares in the event we elect to deliver shares
of common stock in payment, in whole or in part, of the purchase price.
The "market price" means the average of the sale prices of the common stock
for the five trading day period ending on the third business day (if the third
business day prior to the purchase date is a trading day or, if not, then on the
last trading day prior to the third business day) prior to the purchase date,
appropriately adjusted to take into account the occurrence, during the period
commencing on the first of such trading days during such five trading day period
and ending on such purchase date, of certain events with respect to the common
stock that would result in an adjustment of the conversion rate.
The "sale price" of the common stock on any date means the closing sale
price per share (or if no closing sale price is reported, the average of the bid
and ask prices or, if more than one in either case, the average of the average
bid and the average ask prices) on such date as reported in composite
transactions for the principal United States securities exchange on which the
common stock is traded or, if the common stock is not listed on a United States
national or regional securities exchange, as reported by the National
Association of Securities Dealers Automated Quotation System or by the National
Quotation Bureau Incorporated.
Because the market price of the common stock is determined prior to the
purchase date, holders of debentures bear the market risk with respect to the
value of the common stock to be received from the date such market price is
determined to the purchase date. We may pay the purchase price or any portion of
the purchase price in shares of common stock only if the information necessary
to calculate the market price is published in a daily newspaper of national
circulation.
Upon determination of the actual number of shares of common stock to be
issued for each $1,000 principal amount of debentures in accordance with the
foregoing provisions, we will publish such information on our Web site on the
World Wide Web or through such other public medium as we may use at that time.
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Our right to purchase debentures, in whole or in part, with shares of
common stock is subject to our satisfying various conditions, including:
- the listing of such shares of common stock on the principal United States
securities exchange on which the common stock is then listed or, if not
so listed, on Nasdaq;
- the registration of the shares of common stock under the Securities Act
and the Exchange Act, if required; and
- any necessary qualification or registration under applicable state
securities law or the availability of an exemption from such
qualification and registration.
If such conditions are not satisfied with respect to a holder prior to the
close of business on the purchase date, we will pay the purchase price of the
debentures of the holder entirely in cash. See "Certain United States Federal
Income Tax Considerations -- Sale, Exchange, Conversion or Redemption." We may
not change the form or components or percentages of components of consideration
to be paid for the debentures once we have given the notice that we are required
to give to holders of debentures, except as described in the first sentence of
this paragraph.
Our ability to purchase debentures with cash may be limited by the terms of
our then existing borrowing agreements. The indenture prohibits us from
purchasing debentures for cash in connection with the holders' purchase right if
any event of default under the indenture has occurred and is continuing, except
a default in the payment of the purchase price with respect to the debentures.
A holder must either effect book-entry transfer or deliver the debentures
to be purchased, together with necessary endorsements, to the office of the
paying agent after delivery of the purchase notice to receive payment of the
purchase price. You will receive payment in cash on the purchase date or the
time of book-entry transfer or the delivery of the debenture. If the paying
agent holds money or securities sufficient to pay the purchase price of the
debenture on the business day following the purchase date, then, immediately
after the purchase date:
- the debenture will cease to be outstanding;
- interest will cease to accrue; and
- all other rights of the holder will terminate.
This will be the case whether or not book-entry transfer of the debenture
is made or whether or not the debenture is delivered to the paying agent.
We will comply with the provisions of Rule 13e-4, Rule 14e-1 and any other
tender offer rules under the Exchange Act that may be applicable at the time. We
will file Schedule TO or any other schedule under the Exchange Act required in
connection with any offer by us to purchase the debentures at your option.
CHANGE IN CONTROL PERMITS PURCHASE OF DEBENTURES BY US AT THE OPTION OF THE
HOLDER
In the event of a change in control, you will have the right, at your
option, subject to the terms and conditions of the indenture, to require us to
purchase for cash any or all of your debentures in integral multiples of $1,000
principal amount. We will purchase the debentures at a price equal to 100% of
the principal amount of the debentures to be purchased plus accrued and unpaid
interest to, but excluding, the change in control purchase date.
We will be required to purchase the debentures as of the date that is 35
business days after the occurrence of such change in control (a "change in
control purchase date").
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A change in control occurs in the following situations:
- any person or group after the first issuance of debentures becomes the
beneficial owner of our voting stock representing more than 50% of the
total voting power of all of our classesthe then outstanding shares of voting stock of the Company entitled to vote in the election of directors.
Calling of Special Meeting of Stockholders
The COI provides that special meetings of stockholders may be called only by or at the direction of the majority of the Board of Directors, the Chairperson of the Board of Directors or the Chief Executive Officer or President of the Company. Stockholders of the Company do not have the right to call special meetings.
Amendments to the Bylaws
The Bylaws may be altered, amended or repealed by the Board of Directors. The Bylaws may also be altered, amended or repealed by the affirmative vote of at least two-thirds of the voting power of all of the then outstanding shares of voting stock of the Company entitled to vote generally in the election of directors.
Other Limitations on Stockholder Actions
Advance notice is required for stockholders to nominate directors or to submit proposals for consideration at meetings of stockholders. These procedures provide that notice of stockholder proposals must be timely given in writing to the membersSecretary of ourthe Company prior to the meeting at which the action is to be taken. Generally, to be timely, notice of stockholder proposals relating to an annual meeting must be received at the principal executive offices not less than 90 days nor more than 120 days prior to the date of the one-year anniversary of the immediately preceding annual meeting of stockholders. The Bylaws specify in detail the requirements as to form and content of all stockholder notices. These requirements may preclude stockholders from bringing matters before the stockholders at an annual or special meeting. The Bylaws also describe certain criteria for when stockholder-requested meetings need not be held.
Newly Created Directorships and Vacancies on the Board of Directors (but
specifically excluding Loews and its subsidiaries);
Subject to the rights of any then-outstanding series of preferred stock, any vacancies on the Board of Directors or - we consolidate with or merge with or into another person (other than a
Subsidiary), we sell, convey, transfer or lease our properties and assets
substantially as an entirety tonewly created directorships resulting from any person (other than a Subsidiary), or
any person (other than a Subsidiary) consolidates with or merges with or
into our company, and our outstanding common stock is reclassified into,
exchanged for or converted intoincrease in the right to receive any other property
or security, provided that nonenumber of these circumstancesdirectors will be a change
in control iffilled by the persons that beneficially own our voting stock
immediately prior to a transaction beneficially own, in substantially the
same proportion, shares withvote of a majority of the total voting powerdirectors then in office, even though less than a quorum, or by a sole remaining director (other than any directors elected by the separate vote of all
outstanding voting securitiesone or more then-outstanding series of preferred stock), and will not be filled by the surviving or transferee person that
are entitled to vote generally instockholders.
Authorized but Unissued Shares
Under Delaware law, the election of that person's Board of
Directors;
unless, in each case, at least 50% of the consideration, other than cash
payments for fractional shares, consists ofCompany’s authorized but unissued shares of voting common stockCommon Stock are available for future issuance without stockholder approval. The Company may use these additional shares of the
person that are, or upon issuance will be, traded onCommon Stock for a national securities
exchange or approved for trading on an established automated over-the-counter
trading market in the United States.
Within 15 business days after the occurrencevariety of a change in control, we are
obligatedcorporate purposes, including future public offerings to mail to the trusteeraise additional capital, acquisitions and to all holdersemployee benefit plans. The existence of debentures at their
addresses shown in the registerauthorized but unissued shares of the registrar and to beneficial owners as
required by applicable law a notice regarding the change in control, stating,
among other things:
- the events causing a change in control;
- the date of such change in control;
- the last date on which the purchase right may be exercised;
- the change in control purchase price;
- the change in control purchase date;
- the name and address of the paying agent and the conversion agent;
- the conversion rate and any adjustments to the conversion rate;
- that debentures with respect to which a change in control purchase notice
is given by the holder may be converted only if the change in control
purchase notice has been withdrawn in accordance with the terms of the
debentures and the indenture; and
- the procedures that holders must follow to exercise these rights.
To exercise this right, you must deliver a written notice to the paying
agent prior to the close of business on the business day before the change in
control purchase date. The required purchase notice upon a change in control
must state:
- if certificated debentures have been issued, the debenture certificate
numbers, or if not, must comply with appropriate DTC procedures;
- the portion of the principal amount of debentures to be purchased, in
integral multiples of $1,000; and
- that we are to purchase such debentures pursuant to the applicable
provisions of the debentures and the indenture.
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You may withdraw any change in control purchase notice by a written notice
of withdrawal delivered to the paying agent prior to the close of business on
the business day before the change in control purchase date. The notice of
withdrawal must state:
- the principal amount of the withdrawn debentures, in integral multiples
of $1,000;
- if certificated debentures have been issued, the certificate numbers of
the withdrawn debentures, or if not, must comply with appropriate DTC
procedures; and
- the principal amount, if any, of debentures that remain subject to your
change in control purchase notice.
A holder must either effect book-entry transfer or deliver the debentures
to be purchased, together with necessary endorsements, to the office of the
paying agent after delivery of the change in control purchase notice to receive
payment of the change in control purchase price. You will receive payment in
cash on the change in control purchase date or the time of book-entry transfer
or the delivery of the debenture. If the paying agent holds money or securities
sufficient to pay the change in control purchase price of the debenture on the
business day following the change in control purchase date, then, immediately
after the change in control purchase date:
- the debenture will cease to be outstanding;
- interest will cease to accrue; and
- all other rights of the holder will terminate.
This will be the case whether or not book-entry transfer of the debenture
is made or whether or not the debenture is delivered to the paying agent.
We will comply with the provisions of Rule 13e-4, Rule 14e-1 and any other
tender offer rules under the Exchange Act that may be applicable at the time. We
will file Schedule TO or any other schedule under the Exchange Act required in
connection with any offer by us to purchase the debentures at your option.
The change in control purchase feature of the debentures may in certain
circumstances makeCommon Stock could render more difficult or discourage a takeover of us. The change in
control purchase feature, however, is not the result of our knowledge of any
specific effort:
- to accumulate shares of common stock;
-an attempt to obtain control of usthe Company by means of a merger,proxy contest, tender offer, solicitationmerger or otherwise; or
- by managementotherwise.
Exclusive Forum
The COI provides that, unless the Company consents in writing to adopt a seriesthe selection of anti-takeover provisions.
Instead,an alternative forum, the termsCourt of Chancery of the change in control purchase feature resulted from
negotiations betweenState of Delaware, or the initial purchaserCourt of Chancery (or, if the debentures and us.
We could, inCourt of Chancery lacks jurisdiction over such action or proceeding, then the future, enter into certain transactions, including certain
recapitalizations, that would not constitute a change in control with respect to
the change in control purchase feature of the debentures but that would increase
the amount of our (or our subsidiaries') outstanding indebtedness.
No debentures may be purchased by us at the option of holders upon a change
in control if there has occurred and is continuing an event of default with
respect to the debentures, other than a default in the payment of the change in
control purchase price with respect to the debentures.
For purposes of defining a change of control:
- the term "person" and the term "group" have the meanings given by
Sections 13(d) and 14(d) of the Exchange Act or any successor provisions;
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- the term "group" includes any group actingfederal district court for the purpose of acquiring,
holding or disposing of securities within the meaning of Rule 13d-5(b)(1)
under the Exchange Act or any successor provision; and
- the term "beneficial owner" is determined in accordance with Rules 13d-3
and 13d-5 under the Exchange Act or any successor provision, except that
a person will be deemed to have beneficial ownership of all shares that
person has the right to acquire irrespective of whether that right is
exercisable immediately or only after the passage of time.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
The indenture provides that we may not consolidate with or merge into any
other entity or convey or transfer our properties and assets substantially as an
entirety to any entity, unless:
- the successor or transferee entity is a corporation or partnership
organized under the laws of the United States or any State or the District of Columbia;
-Delaware or other state courts of the successor or transferee entity, if other than us, expressly assumes
by a supplemental indenture executedState of Delaware), and deliveredany appellate court therefrom shall, to the trustee, in
form satisfactoryfullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action, suit or proceeding brought on behalf of the Company, (ii) any action, suit or proceeding asserting a claim of breach of a fiduciary duty owed by any director, officer or stockholder of the Company to the trustee, the due and punctual payment of the
principal of, any premium on and any interest on, all the outstanding
debentures and the performance of every covenant in the indenture to be
performedCompany or observed by us and provides for conversion rights in
accordance with applicable provisions of the indenture;
- immediately after giving effect to the transaction, no Event of Default,
as defined in the indenture, and no event which, after noticeCompany’s stockholders, (iii) any action, suit or lapse of
time or both, would become an Event of Default, has happened and is
continuing; and
- we have delivered to the trustee an officers' certificate and an opinion
of counsel, each in the form required by the indenture and stating that
such consolidation, merger, conveyance or transfer and such supplemental
indenture comply with the foregoing provisions relating to such
transaction.
In case of any such consolidation, merger, conveyance or transfer, the
successor entity will succeed to and be substituted for us as obligor on the
debentures, with the same effect as if it had been named in the indenture as our
company.
COVENANTS
The indenture contains certain covenants that will be applicable (unless
waived or amended) so long as any of the debentures are outstanding.
In the following discussion, when we refer to our "drilling rigs and
drillship," we mean any drilling rig or drillship (or the stock or indebtedness
of any Subsidiary owning such a drilling rig or drillship) that we or one of our
Subsidiaries leases as lessee, or owns greater than a 50% interest in, that our
Board of Directors deems of material importance to us and that has a net book
value greater than 2% of Consolidated Net Tangible Assets. When we refer to
"Consolidated Net Tangible Assets," we mean the total amount of our assets (less
reserves and other properly deductible items) after deducting current
liabilities (other than those that are extendable at our option to a date more
than 12 months after the date the amount is determined), goodwill and other
intangible assets shown in our most recent consolidated balance sheet prepared
in accordance with generally accepted accounting principles.
Limitation on Liens. In the indenture, we have agreed that we will not
create, assume or allow to exist any debt secured by a lien upon any of our
drilling rigs or drillship, unless we secure the debentures equally and ratably
with the debt secured by the lien. This covenant has exceptions that permit:
- liens already existing on the date the debentures are issued;
- liens on property existing at the time we acquire the property or liens
on property of a corporation or other entity at the time it becomes a
Subsidiary;
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- liens securing debt incurred to finance the acquisition, completion of
construction and commencement of commercial operation, alteration, repair
or improvement of any property, if the debt was incurred prior to, at the
time of or within 12 months after that event, and to the extent that debt
is in excess of the purchase price or cost, recourse on the debt is only
against that property;
- liens securing intercompany debt;
- liens in favor of a governmental entity to secure either:
1. payments under any contract or statute; or
2. industrial development, pollution control or similar indebtedness;
- liens imposed by law such as mechanic's or workmen's liens;
- governmental liens under contracts for the sale of products or services;
- liens under workers compensation laws or similar legislation;
- liens in connection with legal proceedings or securing taxes or
assessments;
- good faith deposits in connection with bids, tenders, contracts or
leases;
- deposits made in connection with maintaining self-insurance, to obtain
the benefits of laws, regulations or arrangements relating to
unemployment insurance, old age pensions, social security or similar
matters or to secure surety, appeal or customs bonds; and
- any extensions, renewals or replacements of the above-described liens if
both:
1. the amount of debt secured by the new lien does not exceed the
amount of debt secured, plus any additional debt used to complete the
project, if applicable; and
2. the new lien is limited to all or a part of the property (plus any
improvements) secured by the original lien.
In addition, without securing the debentures as described above, we may
create, assume or allow to exist secured debt that this covenant would otherwise
restrict in an aggregate amount that does not exceed a "basket" equal to 10% of
our Consolidated Net Tangible Assets. When determining whether secured debt is
permitted by this exception, we must include in the calculation of the "basket"
amount all of our other secured debt that this covenant would otherwise restrict
and the present value of lease payments in connection with sale and lease-back
transactions that would be prohibited by the "Limitation on Sale and Lease-Back
Transactions" covenant described below if this exception did not apply.
Limitation on Sale and Lease-Back Transactions. We have agreed that we
will not enter into a sale and lease-back transaction covering any drilling rig
or drillship, unless one of the following applies:
- we could incur debt secured by the leased property in an amount at least
equal to the present value of the lease payments in connection with that
sale and lease-back transaction without violating the "Limitation on
Liens" covenant described above; or
- within six months of the effective date of the sale and lease-back
transaction, we apply an amount equal to the present value of the lease
payments in connection with the sale and lease-back transaction to
either:
1. the acquisition of any drilling rig or drillship; or
2. the retirement (including by redemption, defeasement, repurchase or
otherwise) of long-term debt or other debt maturing more than one year
after its creation, in each case ranking equally with the debentures.
When we use the term "sale and lease-back transaction," we mean any
arrangement by which we sell or transfer to any person any drilling rig or
drillship that we then lease back from them. This term
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excludes leases no longer than five years, intercompany leases, leases executed
within 12 months of the acquisition, construction, improvement or commencement
of commercial operation of the drilling rig or drillship, and arrangementsproceeding arising pursuant to any provision of law with an effect similarthe DGCL or the Bylaws or the COI (as either may be amended from time to time), (iv) any action, suit or proceeding as to which the DGCL confers jurisdiction on the Court of Chancery or (v) any action, suit or proceeding asserting a claim against the Company or any current or former director, officer or stockholder governed by the internal affairs doctrine.
The COI provides that, unless the Company consents in writing to the former Section
168(f)(8)selection of an alternative forum, the federal district courts of the Internal Revenue Code of 1954 (which permittedUnited States will be the lessorsole and exclusive forum for any action brought under the Securities Act and the Exchange Act.
Cumulative Voting
Delaware law permits stockholders to recognize depreciation on the property).
EVENTS OF DEFAULT; WAIVER AND NOTICE
An event of default is definedcumulate their votes and either cast them for one candidate or distribute them among two or more candidates in the indenture as:
(a) default for 30 days in paymentelection of any interest (regular or
contingent) on the debentures or in payment of any Liquidated Damages under
the registration rights agreement described below;
(b) default in payment of principal of or any premium on the
debentures at maturity, redemption price, purchase price or change in
control purchase price, when the same becomes due and payable;
(c) default in the payment (after any applicable grace period) of any
indebtedness for money borrowed by our company or a Subsidiary in excess of
$25.0 million principal amount (excluding such indebtedness of any
Subsidiary other than a Significant Subsidiary, all the indebtedness of
which Subsidiary is nonrecourse to our company or any other Subsidiary) or
default on such indebtedness that results in the acceleration of such
indebtedness prior to its express maturity,directors only if such indebtedness is not
discharged, or such acceleration is not annulled, by the end of a period of
10 days after written notice to us by the trustee or to us and the trustee
by the holders of at least 25% in principal amount of the outstanding
debentures;
(d) default by us in the performance of any other covenant contained
in the indenture for the benefit of the debentures that has not been
remedied by the end of a period of 60 days after notice is given as
specified in the indenture; and
(e) certain events of bankruptcy, insolvency and reorganization of our
company or a Significant Subsidiary.
When we refer to a "Significant Subsidiary," we mean any Subsidiary, the
Net Worth of which represents more than 10% of the Consolidated Net Worth of our
company and our Subsidiaries. The terms "Subsidiary," "Net Worth" and
"Consolidated Net Worth" are defined in the indenture.
The indenture provides that:
- if an event of default described in clause (a), (b), (c) or (d) above (if
the event of default under clause (d) is with respect to less than all
series of debt securities issued under the principal indenture and then
outstanding) has occurred and is continuing with respect to a series of
debt securities issued under the principal indenture and then
outstanding, either the trustee or the holders of not less than 25% in
aggregate principal amount of the debt securities of such series then
outstanding (each such series acting as a separate class) may declare the
principal (or, in the case of debt securities originally issued at a
discount, the portion thereof that represents the issue price plus the
accrued original issue discount where we have not previously elected to
pay interest in cash or, if such securities have been converted to
interest-bearing securities following a tax event, the restated principal
amount plus accrued and unpaid interest) of the debt securities of the
affected series and the interest accrued thereon, if any, to be due and
payable immediately; and
- if an event of default described in clause (d) above (if the event of
default under clause (d) is with respect to all series of debt securities
issued under the principal indenture and then outstanding) has occurred
and is continuing, either the trustee or the holders of at least 25% in
aggregate principal amount of all debt securities issued under the
principal indenture and then outstanding (treated as one class) may
declare the principal (or, in the case of the debt securities originally
issued at a discount, the portion thereof that represents the issue price
plus the accrued
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original issue discount where we have not previously elected to pay
interest in cash or, if such securities have been converted to
interest-bearing securities following a tax event, the restated principal
amount plus accrued and unpaid interest) of all debt securities issued
under the principal indenture and then outstanding and the interest
accrued thereon, if any, to be due and payable immediately,
but upon certain conditions such declarations may be annulled and past defaults
(except for defaults in the payment of principal of, any premium on or any
interest on, such debt securities and in compliance with certain covenants) may
be waived by the holders of a majority in aggregate principal amount of the debt
securities of such series then outstanding. If an event of default described in
clause (e) occurs and is continuing, then the principal amount (or, in the case
of debt securities originally issued at a discount, such portion of the
principal amount that represents the issue price plus the accrued original issue
discount where we have not previously elected to pay interest in cash or, if
such securities have been converted to interest-bearing securities following a
tax event, the restated principal amount plus accrued and unpaid interest) of
all the debt securities issued under the principal indenture and then
outstanding and all accrued interest thereon shall become and be due and payable
immediately, without any declaration or other act by the trustee or any other
holder.
Under the indenture the trustee must give to the holders of debentures
notice of all uncured defaults known to it with respect to the debentures within
90 days after such a default occurs (the term default to include the events
specified above without notice or grace periods); provided that, except in the
case of default in the payment of principal of, any premium on or any interest
on, any of the debentures, or default in the payment of any sinking or purchase
fund installment or analogous obligations, the trustee will be protected in
withholding such notice if it in good faith determines that the withholding of
such notice is in the interests of the holders of the debentures.
No holder of any debentures may institute any action under the indenture
unless:
- such holder has given the trustee written notice of a continuing event of
default with respect to the debentures;
- the holders of not less than 25% in aggregate principal amount of the
debentures then outstanding have requested the trustee to institute
proceedings in respect of such event of default;
- such holder or holders have offered the trustee such reasonable indemnity
as the trustee may require;
- the trustee has failed to institute an action for 60 days thereafter; and
- no inconsistent direction has been given to the trustee during such
60-day period by the holders of a majority in aggregate principal amount
of debentures.
The holders of a majority in aggregate principal amount of the debentures
affected and then outstanding will have the right, subject to certain
limitations, to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee or exercising any trust or power
conferred on the trustee with respect to the debentures. The indenture provides
that, if an event of default occurs and is continuing, the trustee, in
exercising its rights and powers under the indenture, will be required to use
the degree of care of a prudent man in the conduct of his own affairs. The
indenture further provides that the trustee shall not be required to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties under the indenture unless it has reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is reasonably assured to it.
We must furnish to the trustee within 120 days after the end of each fiscal
year a statement signed by one of certain officers of our company to the effect
that a review of our activities during such year and of our performance under
the indenture and the terms of the debentures has been made, and, to the best of
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the knowledge of the signatories based on such review, we have complied with all
conditions and covenants of the indenture or, if we are in default, specifying
such default.
For the purposes of determining whether the holders of the requisite
principal amount of debentures have taken any action herein described, the
principal amount of debentures will be deemed to be the portion of such
principal amount that would be due and payable at the time of the taking of such
action upon a declaration of acceleration of maturity thereof.
MODIFICATION OF THE INDENTURE
We and the trustee may, without the consent of the holders of the debt
securities issued under the principal indenture, enter into supplemental
indentures for, among others, one or more of the following purposes:
- to evidence the succession of another corporation to our company, and the
assumption by such successor of our obligations under the indenture and
the debt securities of any series;
- to add covenants of our company, or surrender any rights of our company,
for the benefit of the holders of debt securities of any or all series;
- to cure any ambiguity, omission, defect or inconsistency in such
indenture;
- to establish the form or terms of any series of debt securities,
including any subordinated securities;
- to evidence and provide for the acceptance of any successor trustee with
respect to one or more series of debt securities or to facilitate the
administration of the trusts thereunder by one or more trustees in
accordance with such indenture; and
- to provide any additional events of default.
With certain exceptions, the indenture or the rights of the holders of the
debentures may be modified by us and the trustee with the consent of the holders
of a majority in aggregate principal amount of the debentures then outstanding,
but no such modification may be made without the consent of the holder of each
outstanding debenture affected thereby that would:
- change the maturity of any payment of principal of, or any premium on, or
any installment of interest (including contingent interest) on any
debenture, or reduce the principal amount thereof or the rate of regular
interest or any premium thereon, or change the method of computing the
amount of principal thereof or the rate of regular or contingent interest
thereon on any date or change any place of payment where, or the coin or
currency in which, any debenture or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the maturity thereof (or, in the case of
redemption or repayment, on or after the redemption date or the repayment
date, as the case may be) or adversely affect the conversion or
repurchase provisions in the indenture;
- reduce the percentage in principal amount of the outstanding debentures,
the consent of whose holders is required for any such modification, or
the consent of whose holders is required for any waiver of compliance
with certain provisions of the indenture or certain defaults thereunder
and their consequences provided for in the indenture; or
- modify any of the provisions of certain sections of the indenture,
including the provisions summarized in this paragraph, except to increase
any such percentage or to provide that certain other provisions of the
indenture cannot be modified or waived without the consent of the holder
of each outstanding debenture affected thereby.
DISCHARGE OF THE INDENTURE
We may satisfy and discharge our obligations under the indenture by
delivering to the trustee for cancellation all outstanding debentures or by
depositing with the trustee, the paying agent or the
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conversion agent, if applicable, after the debentures have become due and
payable, whether at stated maturity, or any redemption date, or any purchase
date, or a change in control purchase date, or upon conversion or otherwise,
cash or common stock (as applicable under the terms of the indenture) sufficient
to pay all of the outstanding debentures and paying all other sums payable under
the indenture by our company.
GOVERNING LAW
The indenture and the debentures will be governed by and construed in
accordance with the laws of the State of New York.
BOOK-ENTRY SYSTEM
The debentures will be represented by one or more global securities. Each
global security will be deposited with, or on behalf of, DTC and be registered
in the name of a nominee of DTC. Except under circumstances described below, the
debentures will not be issued in definitive form.
Upon the issuance of a global security, DTC will credit on its book-entry
registration and transfer system the accounts of persons designated by the
initial purchaser with the respective principal amounts of the debentures
represented by the global security. Ownership of beneficial interestsexpressly authorized in a global security will be limited to persons that have accounts with DTC or its
nominee ("participants") or persons that may hold interests through
participants. Ownerscorporation’s certificate of beneficial interests in the debentures represented by
the global securities will hold their interests pursuant to the proceduresincorporation. The COI does not authorize cumulative voting.
Transfer Agent and practices of DTC. Ownership of beneficial interests in a global security will be
shown on,Registrar
The transfer agent and the transfer of that ownership will be effected only through,
records maintained by DTC or its nominee (with respect to interests of persons
other than participants). The laws of some states require that certain
purchasers of securities take physical delivery of such securities in definitive
form. Such limits and such laws may impair the ability to transfer beneficial
interests in a global security.
So long as DTC or its nominee is the registered owner of a global security,
DTC or its nominee, as the case may be, will be considered the sole owner or
holder of the debentures represented by that global security for all purposes
under the indenture. Except as provided below, owners of beneficial interests in
a global security will not be entitled to have debentures represented by that
global security registered in their names, will not receive or be entitled to
receive physical delivery of debentures in definitive form and will not be
considered the owners or holders thereof under the indenture. Beneficial owners
will not be holders and will not be entitled to any rights provided to the
holders of debentures under the global securities or the indenture. Principal
and interest payments, if any, on debentures registered in the name of DTC or
its nominee will be made to DTC or its nominee, as the case may be, as the
registered owner of the relevant global security. Neither our company, the
trustee, any paying agent or the registrar for the debentures will have any
responsibility or liability for any aspect ofCommon Stock is Computershare Inc.
Registration Rights Agreement
Pursuant to the records relating to or
payments made on account of beneficial interests in a global security or for
maintaining, supervising or reviewing any records relating to such beneficial
interests.
We expect that DTC or its nominee, upon receipt of any payment of principal
or interest, if any, will credit immediately participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of the relevant global security as shownPlan, on the records of
DTC or its nominee. We also expect that payments by participants to owners of
beneficial interests in a global security held through such participants will be
governed by standing instructions and customary practices, as isEffective Date, the case with
securities held forCompany entered into the accounts of customers in bearer form or registered in
"street name," and will be the responsibility of such participants.
If DTC is at any time unwilling or unable to continue as a depositary and a
successor depositary is not appointed by us within 90 days, we will issue
debentures in definitive form in exchange for the entire global security for the
debentures. In addition, we may at any time and in our sole discretion determine
not to have debentures represented by a global security and, in such event, will
issue debentures in definitive form in exchange for the entire global security
relating to such debentures. In any such instance,
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an owner of a beneficial interest in a global security will be entitled to
physical delivery in definitive form of debentures represented by such global
security equal in principal amount to such beneficial interest and to have such
debentures registered in its name. Debentures so issued in definitive form will
be issued as registered debentures in denominations of $1,000 and integral
multiples thereof, unless otherwise specified by us.
REGISTRATION RIGHTS
We have agreed pursuant to a registration rights agreementRegistration Rights Agreement with the initial
purchaser, forRRA Shareholders, who received New Diamond Common Shares under the benefit ofPlan. The RRA Shareholders exercised their right to require the holders of debentures and the common stock
issuable upon the conversion thereof,Company to at our expense:
- file with the SEC a shelf registration statement covering resale ofand on June 22, 2021, the debentures and the shares of common stock issuable upon conversion of the
debentures;
- use our reasonable best efforts to cause the shelfCompany filed a registration statement, as subsequently amended, to become effective as promptly as practicable butregister the Shares owned by the RRA Shareholders. The Company will generally pay all registration expenses in any event within
180 days after the date of original issuance of the debentures; and
- use our reasonable best efforts to keep the shelf registration statement
effective until the earlier of (i) the transfer pursuant to Rule 144connection with its obligations under the Securities Act or the sale pursuant to the shelf registration
statementRegistration Rights Agreement, regardless of all the securities registered thereunder, (ii) the
expiration of the holding period applicable to such securities held by
persons that are not affiliates of ours under Rule 144(k) under the
Securities Act or any successor provision and (iii) the second
anniversary of the effective date of the registration statement, subject
to certain permitted exceptions.
We are permitted to suspend the use ofwhether a prospectus that is part of the
shelf registration statement under certain circumstances relating to pending
corporate developments, public filings with the SEC and similar events for a
period not exceed 30 days in any three-month period and not to exceed an
aggregate of 90 days in any 12-month period. We agreed to pay predetermined
liquidated damages as described herein, or Liquidated Damages, to holders of
transfer restricted debentures and holders of transfer restricted common stock
issued upon conversion of the debentures, if:
- a shelf registration statement is not timely filed or made effective; or
-becomes effective. The registration rights granted in the prospectus is unavailable for the periods in excess of those
permitted above.
This prospectus is a partRegistration Rights Agreement are subject to customary indemnification and contribution provisions, as well as customary restrictions such as blackout periods.
The foregoing description of the shelf registration statement.
Liquidated Damages shall accrue until such failure to file or become
effective or unavailabilityRegistration Rights Agreement is cured, (i) in respect of any debentures at a rate
per year equal to 0.25% for the first 90 day period after the occurrence of such
event and 0.50% thereafter of the principal amount thereof and, (ii) in respect
of any shares of common stock issued upon conversion, at a rate per year equal
to 0.25% for the first 90 day period and 0.50% thereafter of the then Applicable
Conversion Price (as defined). So long as the failure to file or become
effective or unavailability continues, we will pay Liquidated Damages in cash on
April 15 and October 15 of each year to the holder of record of the debentures
or shares of common stock on the immediately preceding April 1 or October 1.
When such registration default is cured, accrued and unpaid Liquidated Damages
will be paid in cash to the record holder as of the date of such cure.
A holder who sells debentures or shares of common stock issued upon
conversion of the debentures pursuant to the shelf registration statement
generally will be required to be named as a selling securityholder in the
related prospectus, deliver a prospectus to purchasers and be bound by certain
provisions of the registration rights agreement that are applicable to such
holder, including certain indemnification provisions, and will be subject to
certain civil liability provisions under the Securities Act. We will pay all
expenses of the shelf registration statement, provide to each holder that has
notified us of its acquisition of debentures or shares of common stock issued
upon conversion of the debentures copies of such prospectus, notify each such
holder when the shelf registration statement has become effective and
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take certain other actions as are required to permit, subject to the foregoing,
unrestricted resales of the debentures and the shares of common stock issued
upon conversion of the debentures.
The term "Applicable Conversion Price" means, as of any date of
determination, the principal amount of each debenture as of such date of
determination divided by the conversion rate in effect as of such date of
determination or, if no debentures are then outstanding, the conversion rate
that would be in effect were debentures then outstanding.
We agreed in the registration rights agreement to give notice to all
holders of the filing and effectiveness of the shelf registration statement by
release made to Reuters Economic Services and Bloomberg Business News.
The summary herein of certain provisions of the registration rights
agreement is subject to,not complete and is qualified in its entirety by reference to all
the provisions ofRegistration Rights Agreement, which is filed as Exhibit 4.4 to the registration rights agreement, a copystatement of which this prospectus is available from us upon request.
SELLING SECURITYHOLDERS
We originally issueda part and is incorporated herein by reference.
Trading Market and Ticker Symbol
Our Common Stock is listed on the debentures in a private placement. The initial
purchaser resold the debentures to qualified institutional buyers within the
meaning of Rule 144ANew York Stock Exchange under the Securities Act in transactions exempt from
registration undersymbol “DO.”
The selling stockholders intend to distribute the Securities Act. The debentures and the shares of common
stock issuable upon conversion thereof, or conversion shares, that may be
offeredShares pursuant to this prospectus will be offered by the selling
securityholders, which includes their transferees, pledgees or donees or their
successors. The following table sets forth certain information concerning the
principal amount of debentures beneficially owned by each selling securityholder
and the number of conversion shares thatonly as follows: such Shares may be offeredsold from time to time pursuant to this prospectus.
The number of conversion shares shown in the table below assumes conversion
of the full amount of debentures held by such holder at the initial conversion
rate of 20.3978 shares per $1,000 principal amount of debentures. This
conversion rate is subject to certain adjustments. Accordingly, the number of
shares of common stock issuable upon conversion of the debentures may increase
or decrease from time to time. Under the terms of the indenture, fractional
shares will not be issued upon conversion of the debentures. We will pay cash
instead of fractional shares, if any. As of June 26, 2001, we had 133,457,055
shares of common stock outstanding.
The aggregate proceeds to the selling securityholdersstockholders from the sale of the
debentures or underlying common stockShares offered by them will be the purchase price of the debenturesShares less discounts or common stock less any discounts and
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commissions. A selling securityholder reserves the right to accept and, together
with their agents, to reject, any proposed purchase of debentures or common
stock to be made directly or through agents.commissions, if any. We will not receive any of the proceeds from this offering.
Our outstanding common stock is listed for trading on The New York Stock
Exchange. We do not intend to list
To the debentures for trading on any national
securities exchange or on Nasdaq. We cannot guarantee that any trading market
will develop for the debentures.
The debentures and underlying common stockextent required, this prospectus may be sold in some states only
through registered amended and/or licensed brokers or dealers. In addition, in some states
the debentures and underlying common stock may not be sold unless they have been
registered or qualified for sale or an exemptionsupplemented from registration.time to time to describe a specific plan of distribution. The selling securityholdersstockholders also may resell all or a portion of the Shares in open market transactions in reliance upon Rule 144 under the Securities Act, provided that they meet the criteria and conform to the requirements of that rule.
The selling stockholders and any underwriters, broker-dealers or agents that participate in the sale of the debentures and common stock into which the
debentures are convertibleShares or interests therein may be "underwriters"deemed to be “underwriters” within the meaning of Section
2(11) of the Securities Act. AnyAct, and any discounts, commissions, concessions or profit they earn on any resale of the sharesShares may be underwriting discounts and commissions under the Securities Act. Selling securityholdersstockholders who are "underwriters"“underwriters” within the meaning of Section 2(11) of the Securities Act will be subject to the prospectus delivery requirements of the Securities Act. The
selling securityholders have acknowledged that they understand their obligations
to comply with
To the provisions of the Exchange Act and the rules thereunder
relating to stock manipulation, particularly Regulation M, and have agreed that
they will not engage in any transaction in violation of such provisions.
In addition, any securities covered by this prospectus which qualify for
sale pursuant to Rule 144 or Rule 144A under the Securities Act may be sold
under Rule 144 or Rule 144A rather than pursuant to this prospectus. A selling
securityholder may not sell any debentures or common stock described in this
prospectus and may not transfer, devise or gift such securities by other means
not described in this prospectus.
Ifextent required, the specific debentures or common stockShares to be sold, the names of the selling securityholders,stockholders, the respective purchase prices and public offering prices, the names of any agent,agents or dealer, or underwriter, and any applicable commissions or discounts with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that includes this prospectus.
The selling stockholders and other persons participating in the sale or distribution of the Shares will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M. This regulation may limit the timing of purchases and sales of any of the Shares by the selling stockholders and any other person. The anti-manipulation rules under the Exchange Act may apply to sales of Shares in the market and to the activities of the selling stockholders and their affiliates. Furthermore, to the extent applicable, Regulation M may restrict the ability of any person engaged in the distribution of the Shares to engage in market-making activities with respect to the particular Shares. These restrictions may affect the marketability of the Shares and the ability of any person or entity to engage in market-making activities with respect to the Shares.
We agreed to register the Shares under the Securities Act and to keep the registration statement of which this prospectus is a part.
part effective for a specified period of time. We have also agreed to indemnify the selling stockholders against specified liabilities, including liabilities under the Securities Act and state securities laws, relating to the registration of the Shares offered by this prospectus. We cannot assure you that the selling stockholders will sell all or any portion of the Shares offered hereby.
The validity of the debentures and the shares of common stock issuable upon
conversion of the debenturesShares offered by this prospectus will be passed upon for us by Weil, Gotshal &
MangesDuane Morris LLP, Houston, Texas.
INDEPENDENT AUDITORS
The consolidated financial statements of Diamond Offshore Drilling, Inc. incorporated by reference in this prospectus as of December 31, 2000 and 1999,
and for each of the three years in the period ended December 31, 2000, have been audited by Deloitte & Touche LLP, an independent auditors,registered public accounting firm, as stated in their reportreport. Such financial statements are incorporated by reference in this prospectus.
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(DIAMOND OFFSHORE LOGO)
$460,000,000
1 1/2% CONVERTIBLE SENIOR
DEBENTURES DUE 2031
PROSPECTUS
, 2001
44
reliance upon the report of such firm, given their authority as experts in accounting and auditing.
Diamond Offshore Drilling, Inc.
Common Stock
Prospectus
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
| Item 14. | Other Expenses of Issuance and Distribution. |
The following table sets forth the costsfees and expenses, other than underwriting discounts and commissions (if any), payable by us in connection with the issuance and distributionresale of the securities being registered. All
amounts are estimates except the SEC registration fee. registered hereby.
SEC registration fee | $ | 23,653 | ||
Printing and engraving expenses | * | |||
Legal fees and expenses | * | |||
Accounting fees and expenses | * | |||
Miscellaneous | * | |||
|
| |||
Total: | $ | * | ||
|
|
| * | Estimates not presently known. |
We will paybear all costs, expenses and fees in connection with the registration of the following amounts.
Shares. The selling stockholders, however, will bear all commissions and discounts, if any, attributable to their sale of the Shares.
| Item 15. | Indemnification of Directors and |
Section 145 of the DGCL empowers a Delaware General Corporation Law, or the DGCL, provides
that a corporation mayto indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporationcorporation) by reason of the fact that hesuch person is or was a director, officer, employee or agent of thesuch corporation or is or was serving at the request of thesuch corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise), againstenterprise. The indemnity may include expenses (including attorneys'attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by himsuch person in connection with such action, suit or proceeding, if heprovided that such person acted in good faith and in a manner hesuch person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe hissuch person’s conduct was unlawful. Section 145 further provides that aA Delaware corporation similarly may indemnify anydirectors, officers, employees and other agents of such person servingcorporation in any such capacity who was or is a party or is threatened to be
made a party to any threatened, pending or completedan action or suit by or in the right of the corporation to procure a judgment in its favor by reason ofunder the fact that he is or was a director, officer, employee or agent of the corporation
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred in connection with the defense or settlement of such action
or suit if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation andsame conditions, except that no indemnification shallis permitted without judicial approval if the person to be made in respect of any claim, issue or matter as to
which such person shall haveindemnified has been adjudged to be liable to the corporation. Where a director or officer of the corporation unlessis successful on the merits or otherwise in the defense of any action, suit or proceeding referred to above or in defense of any claim, issue or matter therein, the corporation must indemnify such person against the expenses (including attorneys’ fees) which he or she actually and onlyreasonably incurred in connection therewith.
The Company’s COI, a copy of which is filed as Exhibit 4.2 hereto and incorporated herein by reference, contains provisions that provide for the indemnification of directors and officers to the fullest extent authorized or permitted by law, except that the Delaware CourtCompany is not obligated to indemnify any director or officer in connection with a proceeding initiated by such person (other than proceedings to enforce rights to indemnification) unless such proceeding was authorized or consented to by the Company’s Board of Chancery or such other
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of allDirectors.
As permitted by Section 102(b)(7) of the circumstances ofDGCL, the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery or such other
court shall deem proper.
Our amended and restated certificate of incorporationCompany’s COI contains a provision that, in substance, provides for indemnification as set forth above.
As permitted byeliminating the DGCL, our amended and restated certificate of
incorporation contains a provision that, in substance, provides that directors
of our company shall have no personal liability of its directors to our companythe Company or ourits stockholders for monetary damages for breach of fiduciary duty as a director except (1)to the fullest extent permitted by the DGCL, as may be amended from time to time. The COI also provides that, to the fullest extent permitted by law, non-employee directors and their affiliates (other than the Company, any of its subsidiaries or their respective officers or employees) shall not be liable to the Company or its stockholders or to any affiliate of the Company for any breach of any fiduciary duty solely by reason of the director'sfact
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that such non-employee director or affiliate (A) engaged in or possessed interests in other business ventures of any type or description, including those engaged in the same or similar business activities or lines of business in which the Company or any of its subsidiaries now engages or proposes to engage, or (B) competed with the Company or any of its subsidiaries, on its own account, or in partnership with, or as an employee, officer, director or shareholder of any other person (other than the Company or any of its subsidiaries). In addition, except to the extent provided otherwise in the COI, to the fullest extent permitted by law, such persons shall not be liable to the Company or its stockholders or to any subsidiary of the Company for breach of any duty (fiduciary, contractual or otherwise) as a stockholder or director of loyaltythe Company by reason of the fact that such person does not present certain corporate opportunities to our company or
our stockholders, (2)the Company.
The Company’s Bylaws, a copy of which is filed as Exhibit 4.3 hereto and incorporated herein by reference, contain provisions that provide for acts or omissions not in good faith or which involve
intentional misconduct or knowing violationthe indemnification of law, (3) under
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45officers and directors as authorized by Section 174145 of the DGCL, or (4)subject to certain terms and conditions set forth therein.
The Company has entered into indemnification agreements with each of its directors and officers that generally provide for any transaction from which a director derived
an improper personal benefit.
The Purchase Agreement between us and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, as initial purchaser, provides that the initial purchaser is obligated, under certain circumstances,Company to indemnify our
directors, officers and controlling persons against certain liabilities,
including liabilities under the Securities Act. Reference is madeapplicable indemnitee to the formfullest extent permitted by applicable law (subject to certain limitations) as well as the advancement of Purchase Agreement, dated April 11, 2001, between us and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, filed as Exhibit 10.1all expenses incurred by the director or executive officer in connection with a legal proceeding arising out of their service to our
Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2001.Company, in each case to the extent permitted by applicable law. In addition, we haveas authorized by the Bylaws, the Company has an existing directors and officers liability insurance policy.
ITEM 16. EXHIBITS
| Item 16. | Exhibits. |
| (a) | Exhibits. |
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| * | Filed herewith |
| Item 17. | Undertakings. |
(a) The undersigned Registrantregistrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii)
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(ii)(iii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SECCommission by the registrant pursuant to Sectionsection 13 or Sectionsection 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement;
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; and
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
| (i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| (ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration |
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| statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant'sregistrant’s annual report pursuant to Sectionsection 13(a) or Sectionsection 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;
(5)thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrantregistrant pursuant to the foregoing provisions, described
in Item 14, or otherwise, the Registrantregistrant has been advised that in the opinion of the SECSecurities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrantregistrant of expenses incurred or paid by a director, officer or controlling person of the Registrantregistrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrantregistrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue; and
(6) To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of
the Trust Indenture Act in accordance with the rules and regulations
prescribed by the SEC under Section 305(b)(2) of the Act.
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47
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration
statementRegistration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on June 27, 2001.
DIAMOND OFFSHORE DRILLING, INC.
By: /s/ LAWRENCE R. DICKERSON
----------------------------------
Lawrence R. Dickerson
President and Chief Operating
Officer
POWER OF ATTORNEY
The undersigned directors and officers of Diamond Offshore Drilling, Inc.
("Diamond Offshore") do hereby constitute and appoint Gary T. Krenek and William
C. Long and each of them, with full power of substitution, our true and lawful
attorneys-in-fact and agents to do any and all acts and things in our name and
behalf in our capacities as directors and officers, and to execute any and all
instruments for us and in our names in the capacities indicated below which such
person may deem necessary or advisable to enable Diamond Offshore to comply with
the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with this
registration statement, including specifically, but not limited to, power and
authority to sign for us, or any of us, in the capacities indicated below and
any and all amendments (including pre-effective and post-effective amendments or
any other registration statement filed pursuant to the provision of Rule 462(b)
under the Act) hereto; and we do hereby ratify and confirm all that such person
or persons shall do or cause to be done by virtue hereof.
2, 2022.
| DIAMOND OFFSHORE DRILLING, INC. | ||
| By: | /s/ Dominic A. Savarino | |
Dominic A. Savarino Senior Vice President and Chief Financial Officer | ||
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statementRegistration Statement has been signed below by the following persons in thetheir respective capacities and on the dates indicated:
indicated.
Signature | Title | Date | ||
/s/ Bernie G. Wolford, Jr. Bernie G. Wolford, Jr. | President, Chief | June 2, 2022 | ||
/s/ Dominic A. Savarino Dominic A. Savarino | Senior Vice President and Chief | June 2, 2022 | ||
* Neal P. Goldman | Chairperson of the Board | June 2, 2022 | ||
* Benjamin C. Duster, IV | Director | June 2, 2022 | ||
* John H. Hollowell | Director | June 2, 2022 | ||
* Raj Iyer | Director | June 2, 2022 | ||
* Ane Launy | Director | June 2, 2022 | ||
* Patrick Carey Lowe | Director | June 2, 2022 | ||
* Adam C. Peakes | Director | June 2, 2022 | ||
* By: /s/ | ||||||
David L. Attorney-in-Fact | ||||||
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.1 -- Indenture, dated as of February 4, 1997, between Diamond
Offshore Drilling, Inc. and The Chase Manhattan Bank, as
Trustee (incorporated by reference to Exhibit 4.1 to
Diamond Offshore Drilling, Inc.'s Current Report on Form
8-K filed February 11, 1997)
4.2 -- Third Supplemental Indenture, dated as of April 11, 2001,
by and between Diamond Offshore Drilling, Inc. and The
Chase Manhattan Bank, as Trustee, including the form of
Debenture (incorporated by reference to Exhibit 4.2 to
Diamond Offshore Drilling, Inc.'s Quarterly Report on
Form 10-Q for the quarterly period ended March 31, 2001)
4.3 -- Form of Debenture (included in Exhibit 4.2)
4.4 -- Registration Rights Agreement, dated April 11, 2001,
between Diamond Offshore Drilling, Inc. and Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
(incorporated by reference to Exhibit 10.2 to Diamond
Offshore Drilling, Inc.'s Quarterly Report on Form 10-Q
for the quarterly period ended March 31, 2001)
5.1 -- Opinion of Weil, Gotshal & Manges LLP
8.1 -- Opinion of Weil, Gotshal & Manges LLP as to certain U.S.
federal income tax matters
12.1 -- Statement Re Computation of Ratios
23.1 -- Consent of Deloitte & Touche LLP
23.2 -- Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5.1)
23.3 -- Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 8.1)
24.1 -- Power of Attorney (included on page II-4)
25.1 -- Statement of Eligibility of Trustee