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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g)
OF THE SECURITIES EXCHANGE ACT OF 1934
______________
NOBLE DRILLING CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 73-0374541
(State of incorporation) (I.R.S. employer identification number)
10370 Richmond Avenue, Suite 400
Houston, Texas 77042
(Address of principal executive offices) (Zip Code)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
<TABLE>
<CAPTION>
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
<S> <C>
Common Stock, par value New York Stock Exchange
$.10 per share
$1.50 Convertible Preferred New York Stock Exchange
Stock, par value
$1.00 per share
</TABLE>
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A.(c)(1), please check
the following box. [ ]
If this Form relates to the registration of a class of debt securities and is
to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
None
(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
GENERAL
Noble Drilling Corporation (the "Company") has 215,000,000 authorized
shares of stock, consisting of (i) 200,000,000 shares of Common Stock, par
value $.10 per share (the "Common Stock"), and (ii) 15,000,000 shares of
preferred stock having a par value of $1.00 per share. As of February 21,
1996, there were 94,452,634 shares of Common Stock outstanding. Two series of
preferred stock are currently designated: (i) $1.50 Convertible Preferred
Stock ("$1.50 Convertible Preferred Stock") and (ii) Series A Junior
Participating Preferred Stock ("Series A Preferred Stock"). As of February 21,
1996, there were issued and outstanding 4,025,000 shares of $1.50 Convertible
Preferred Stock and zero shares of Series A Preferred Stock. In addition, as
of February 21, 1996, the Company had reserved for issuance (i) 2,616,171
shares of Common Stock under the Company's employee stock option plans, (ii)
46,500 shares of Common Stock under the Company's non-employee director stock
option plan, (iii) 160,000 shares of Common Stock under certain non-employee
director stock option agreements, and (iv) 9,839,515 shares of Common Stock
upon conversion of the outstanding $1.50 Convertible Preferred Stock. In
addition, the Company has reserved for issuance shares of Common Stock for
contingent obligations relating to the acquisition of Triton Engineering
Services Company and for matching fund obligations under the Noble Drilling
Thrift Plan.
COMMON STOCK
Holders of Common Stock are entitled to one vote per share on each
matter to be voted upon by the stockholders of the Company. Dividends may be
paid to the holders of Common Stock when, as and if declared by the Board of
Directors of the Company out of funds legally available for such purpose,
subject to any preferential cumulative dividend rights of any preferred stock
of the Company, including the $1.50 Convertible Preferred Stock, outstanding at
the time. Holders of Common Stock have no conversion, redemption, cumulative
voting or preemptive rights. In the event of any liquidation, dissolution or
winding up of the Company, after payment or provision for payment of the debts
and other liabilities of the Company and the preferential amounts to which the
holders of the $1.50 Convertible Preferred Stock, or any other series or class
of the Company's stock hereafter issued that ranks senior as to liquidation
rights to the Common Stock are entitled, the holders of Common Stock will be
entitled to share ratably in any remaining assets of the Company.
All outstanding shares of Common Stock are, and the shares of Common
Stock to be issued upon conversion of the $1.50 Convertible Preferred Stock
will be, when issued, duly and validly issued, fully paid and nonassessable.
The Common Stock is currently quoted in the Nasdaq National Market
under the symbol "NDCO." However, the Company has applied for listing of its
Common Stock on the New York Stock Exchange.
The transfer agent and registrar for the Common Stock is Liberty Bank
and Trust Company of Oklahoma City, N.A.
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$1.50 CONVERTIBLE PREFERRED STOCK
The Board of Directors of the Company is authorized by the Certificate
of Incorporation to issue preferred stock in one or more series and to fix for
each such series such designation, voting powers, if any, preferences and
relative, participating, optional or other special rights, and such
qualifications, limitations and restrictions thereof, as are stated and adopted
by resolution of the Board without further stockholder approval. No shares of
preferred stock other than the $1.50 Convertible Preferred Stock are currently
issued or outstanding.
The holders of the $1.50 Convertible Preferred Stock have no
preemptive rights with respect to any shares of capital stock of the Company or
any other securities of the Company convertible into or carrying rights or
options to purchase any such shares. The $1.50 Convertible Preferred Stock is
not subject to any sinking fund or other obligation of the Company to redeem or
retire the $1.50 Convertible Preferred Stock.
The $1.50 Convertible Preferred Stock is traded through the Nasdaq
National Market under the symbol "NDCOO." However, application has been made to
list the $1.50 Convertible Preferred Stock on the New York Stock Exchange. The
transfer agent, conversion agent and registrar for the $1.50 Convertible
Preferred Stock is Liberty Bank and Trust Company of Oklahoma City, N.A.
Ranking. The $1.50 Convertible Preferred Stock ranks senior to the
Common Stock with respect to the payment of dividends and upon liquidation,
dissolution or winding up of the Company.
Dividends. Holders of the $1.50 Convertible Preferred Stock are
entitled to receive, when, as and if declared by the Board of Directors of the
Company, out of funds at the time legally available therefor, annual cash
dividends at the rate of $1.50 per share, payable quarterly in arrears on March
31, June 30, September 30 and December 31 of each year. Dividends on the $1.50
Convertible Preferred Stock are cumulative and are payable to holders of record
as they appear on the stock books of the Company on such record dates, which
shall be not more than 60 days nor less than 10 days preceding the payment
dates, as shall be fixed by the Company's Board of Directors, provided that
holders of shares of $1.50 Convertible Preferred Stock called for redemption on
a redemption date falling between a dividend payment record date and the
dividend payment shall, in lieu of receiving such dividend on the dividend
payment date fixed therefor, receive such dividend payment together with all
other accrued and unpaid dividends on the date fixed for redemption (unless
such holders convert such shares in accordance with the Certificate of
Designations). Dividends payable per share of $1.50 Convertible Preferred
Stock for each quarterly dividend period are computed by dividing the annual
dividend amount by four. The amount of dividends payable for any period
shorter or longer than a full quarterly dividend period are computed on the
basis of a 360-day year of twelve 30-day months. Holders of the $1.50
Convertible Preferred Stock are not entitled to any dividends, whether payable
in cash, property or securities, in excess of the full cumulative dividends, as
described above. No interest, or sum of money in lieu of interest, is payable
in respect of any accrued and unpaid dividends.
If dividends are not paid in full, or declared in full and sums set
apart for the payment thereof, upon the $1.50 Convertible Preferred Stock and
upon any other capital stock ranking on a parity as to dividends with the $1.50
Convertible Preferred Stock, all dividends declared upon shares of $1.50
Convertible Preferred Stock and such other parity stock will be declared and
paid
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pro rata so that in all cases the amount of dividends declared per share on the
$1.50 Convertible Preferred Stock and such other parity stock will bear to each
other the same ratio that accrued and unpaid dividends per share on the shares
of $1.50 Convertible Preferred Stock and such other parity stock bear to each
other. Except as set forth above, unless full cumulative dividends on all
outstanding shares of the $1.50 Convertible Preferred Stock have been paid or
declared and sums set aside for the payment thereof, dividends (other than
dividends paid in Common Stock or other stock ranking junior to the $1.50
Convertible Preferred Stock as to dividends and upon liquidation, dissolution
or winding up) may not be declared or paid or set apart for payment, and other
distributions may not be made upon the Common Stock or on any other stock of
the Company ranking junior to the $1.50 Convertible Preferred Stock as to
dividends, or upon liquidation, dissolution or winding up, nor may any Common
Stock or any other stock of the Company ranking junior to or on a parity with
the $1.50 Convertible Preferred Stock as to dividends or upon liquidation,
dissolution or winding up be redeemed, purchased or otherwise acquired for any
consideration by the Company (except by conversion into or exchange for stock
of the Company ranking junior to the $1.50 Convertible Preferred Stock as to
dividends and upon liquidation, dissolution or winding up).
Under Delaware law, the Company may declare and pay dividends on its
capital stock only out of surplus, as defined in the General Corporation Law of
the State of Delaware ("DGCL") or, in case there is no such surplus, out of its
net profits for the fiscal year in which the dividend is declared and/or the
preceding fiscal year. Surplus under the DGCL is generally defined to mean the
excess, at any given time, of the net assets of a corporation over the amount
of the corporation's capital. No dividends or distributions may be declared,
paid or made if the Company is or would be rendered insolvent by virtue of such
dividend or distribution, or if such declaration, payment or distribution would
contravene the Certificate of Incorporation.
Liquidation Rights. In the event of any liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary, the holders of
shares of $1.50 Convertible Preferred Stock will be entitled to receive out of
the assets of the Company available for distribution to stockholders the
liquidation preference of $25.00 per share plus an amount equal to all
dividends (whether or not earned or declared) accrued and unpaid to the payment
date before any payment or distribution of assets is made to holders of Common
Stock or of any other class of stock of the Company ranking junior to the $1.50
Convertible Preferred Stock upon liquidation, dissolution or winding up. If
upon any liquidation, dissolution or winding up of the Company, the amounts
payable with respect to the $1.50 Convertible Preferred Stock and any other
capital stock ranking as to any such distribution on a parity with the $1.50
Convertible Preferred Stock are not paid in full, the holders of the $1.50
Convertible Preferred Stock and of such other parity stock will share ratably
in any such distribution of assets in proportion to the full respective
preferential amounts to which they are entitled. After payment of the full
amount of the liquidation preference to which they are entitled, the holders of
shares of $1.50 Convertible Preferred Stock will not be entitled to any further
participation in any distribution of assets by the Company. Neither a
consolidation or merger of the Company with another corporation nor a sale,
lease, exchange or transfer of all or part of the Company's assets for cash,
securities or other property will be considered a liquidation, dissolution or
winding up of the Company for these purposes.
Conversion Rights. The holder of shares of the $1.50 Convertible
Preferred Stock has the right, at the holder's option, to convert any or all
such shares into Common Stock at any time at a rate (subject to adjustment in
the case of certain dilutive events) of 2.4446 shares of Common
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Stock for each share of $1.50 Convertible Preferred Stock (equivalent to a
conversion price of $10.23 per share of Common Stock), except that, if shares
of $1.50 Convertible Preferred Stock are called for redemption, the conversion
right will terminate at the close of business on the date fixed for redemption.
No fractional shares or securities representing fractional shares of Common
Stock will be issued upon conversion; any fractional shares resulting from
conversion will be paid in cash based upon the last reported sales price of the
Common Stock at the close of business on the first trading day preceding the
date of conversion.
In case the Company shall be a party to any transaction (including,
without limitation, a merger, consolidation, statutory share exchange, sale of
all or substantially all of its assets or recapitalization of the Common
Stock), in each case as a result of which shares of Common Stock shall be
converted into the right to receive stock, securities or other property
(including cash or any combination thereof), each share of $1.50 Convertible
Preferred Stock remaining outstanding shall thereafter be convertible into the
kind and amount of shares of stock and other securities and property receivable
(including cash) upon the consummation of such transaction by a holder of that
number of shares or fraction thereof of Common Stock into which such share of
$1.50 Convertible Preferred Stock was convertible immediately prior to such
transaction.
The conversion price is subject to adjustment upon certain events,
including: (i) the issuance of Common Stock as a dividend or distribution with
respect to the outstanding Common Stock, subdivisions, splits or combinations
of Common Stock, or the issuance of any shares of capital stock by
reclassification of the Common Stock; (ii) the issuance to all holders of
Common Stock of rights or warrants to subscribe for or purchase Common Stock,
in each case at less than the then current market price per share of Common
Stock; and (iii) the payment of a dividend or making of a distribution to
holders of Common Stock of shares of capital stock of the Company or its
subsidiaries (other than Common Stock) or of evidences of its indebtedness, or
of assets, including securities, but excluding those rights, warrants,
dividends and distributions referred to above, dividends and distributions in
connection with the liquidation, dissolution or winding up of the Company and
regular periodic cash dividends payable out of surplus.
No adjustment in the conversion price will be required to be made in
any case until cumulative adjustments amount to one percent or more of the
conversion price as last adjusted, but any such adjustment that would otherwise
be required to be made shall be carried forward and taken into account in any
subsequent adjustment. The Company reserves the right, to the extent permitted
by law, to make such reductions in the conversion price in addition to those
required in the foregoing provisions as it, in its sole discretion, shall
determine to be advisable in order that certain stock-related distributions
hereafter made by the Company to its stockholders shall not be taxable to such
stockholders.
Holders of shares of $1.50 Convertible Preferred Stock at the close of
business on a dividend payment record date shall be entitled to receive the
dividend payable on such shares on the corresponding dividend payment date
(except that holders of shares called for redemption on a redemption date
falling between such dividend payment record date and the dividend payment date
shall, in lieu of receiving such dividend on the dividend payment date fixed
therefor, receive such dividend payment together with all other accrued and
unpaid dividends on the date fixed for redemption, unless such holders convert
such shares in accordance with the Form of Certificate of Designations)
notwithstanding the conversion thereof following such dividend payment record
date and prior to such dividend payment date. However, shares of $1.50
Convertible Preferred Stock surrendered for conversion during the period
between the close of business on any dividend
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payment record date and the opening of business on the corresponding dividend
payment date (except shares of $1.50 Convertible Preferred Stock called for
redemption on a redemption date during such period) must be accompanied by
payment of an amount equal to the dividend payment with respect to such shares
of $1.50 Convertible Preferred Stock presented for conversion on such dividend
payment date. A holder of shares of $1.50 Convertible Preferred Stock on a
dividend payment record date who (or whose transferee) surrenders any such
shares for conversion into shares of Common Stock on the corresponding dividend
payment date will receive the dividend payable by the Company on such shares of
$1.50 Convertible Preferred Stock on such date, and the converting holder need
not include payment in the amount of such dividend upon surrender of shares of
$1.50 Convertible Preferred Stock for conversion on the dividend payment date.
Except as provided above, the Company shall make no payment or allowance for
unpaid dividends, whether or not in arrears, on converted shares of $1.50
Convertible Preferred Stock or for dividends on the shares of Common Stock
issued upon such conversion.
Right of Redemption of the Company. Shares of $1.50 Convertible
Preferred Stock are not redeemable prior to December 31, 1996. Shares of $1.50
Convertible Preferred Stock are otherwise redeemable at the option of the
Company, in whole or in part, at any time or from time to time, out of funds
legally available therefor, on or after December 31, 1996, on not less than 30
nor more than 60 days' notice by first-class mail, at the redemption prices per
share of $1.50 Convertible Preferred Stock set forth below during the 12-month
periods beginning on December 31 of the years shown below, plus in each case an
amount equal to accrued and unpaid dividends, if any, to (and including) the
redemption date, whether or not earned or declared (the "Redemption Price").
<TABLE>
<CAPTION>
YEAR PRICE PER SHARE YEAR PRICE PER SHARE
- ---- --------------- ---- ---------------
<S> <C> <C> <C>
1996 . . . . . . . . . . . . . $26.05 2000 . . . . . . . . . . . . . . . $25.45
1997 . . . . . . . . . . . . . 25.90 2001 . . . . . . . . . . . . . . . 25.30
1998 . . . . . . . . . . . . . 25.75 2002 . . . . . . . . . . . . . . . 25.15
1999 . . . . . . . . . . . . . 25.60 2003 and thereafter . . . . . . . . 25.00
</TABLE>
If fewer than all of the outstanding shares of $1.50 Convertible
Preferred Stock are to be redeemed, the shares to be redeemed shall be selected
by lot or pro rata or in some other equitable manner determined by the Board of
Directors of the Company in its sole discretion. There is no mandatory
redemption or sinking fund obligation with respect to the $1.50 Convertible
Preferred Stock. In the event that the Company has failed to pay accrued and
unpaid dividends on the $1.50 Convertible Preferred Stock, it may not redeem
less than all of the then outstanding shares of the $1.50 Convertible Preferred
Stock until all such accrued and unpaid dividends and the then current
quarterly dividends have been paid in full. After the date fixed for
redemption, unless the Company is in default in providing money for the payment
of the Redemption Price, dividends shall cease to accrue on the $1.50
Convertible Preferred Stock called for redemption, such shares shall no longer
be deemed to be outstanding and all rights of the holders of such shares as
stockholders of the Company shall cease, except the right to receive the moneys
payable upon such redemption, without interest thereon, upon surrender of the
certificates evidencing such shares.
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Voting Rights. The holders of the $1.50 Convertible Preferred Stock
have no voting rights, except as described below or as required by law. In
exercising any such vote, each outstanding share of $1.50 Convertible Preferred
Stock will be entitled to one vote, excluding shares held by the Company or any
entity controlled by the Company, which shares shall have no voting rights.
Whenever dividends on the $1.50 Convertible Preferred Stock have not
been paid in an aggregate amount equal to at least six quarterly dividends on
such shares (whether or not consecutive), the holders of the $1.50 Convertible
Preferred Stock (voting separately as a class with the holders of any stock
ranking on a parity as to dividends with the $1.50 Convertible Preferred Stock
on which like voting rights have been conferred and are exercisable) will be
entitled to elect two directors to the Board of Directors either by written
consent or at any meeting of stockholders of the Company at which directors are
to be elected held during the period such dividends remain in arrears. Such
voting rights will terminate when all such dividends accrued and in default
have been paid in full or declared and funds set apart for payment in full.
The term of office of all directors so elected will terminate immediately upon
such payment or setting apart for payment.
In addition, without the affirmative vote or consent of the holders of
at least 66 2/3 percent of shares of the $1.50 Convertible Preferred Stock then
outstanding, voting separately as a class, the Company may not (i) authorize,
create, issue or increase the authorized number of shares of any class or
classes or series of stock, or any security convertible into stock of such
class or series, ranking prior to the $1.50 Convertible Preferred Stock either
as to dividends or upon liquidation, dissolution or winding up of the Company,
(ii) amend, alter or repeal (whether by merger, consolidation or otherwise) any
of the provisions of the Certificate of Incorporation (including the
Certificate of Designations) of the Company so as to affect adversely any
right, preference, privilege or voting power of the $1.50 Convertible Preferred
Stock or the holders thereof or (iii) authorize any reclassification of the
$1.50 Convertible Preferred Stock. Without the affirmative vote or consent of
holders of at least 50 percent of the shares of $1.50 Convertible Preferred
Stock then outstanding, the Company may not increase the amount of authorized
$1.50 Convertible Preferred Stock or create additional classes of stock or
issue series of capital stock ranking on a parity with the $1.50 Convertible
Preferred Stock with respect to the payment of dividends or upon liquidation,
dissolution and winding up of the Company. However, the Company may increase
the amount of authorized preferred stock or create additional classes of stock
or issue series of capital stock ranking junior to the $1.50 Convertible
Preferred Stock with respect to the payment of dividends and upon liquidation,
dissolution and winding up of the Company without the consent of any holder of
$1.50 Convertible Preferred Stock.
Special Conversion Rights. The $1.50 Convertible Preferred Stock has
a special conversion right that becomes effective upon the occurrence of
certain types of significant transactions affecting ownership or control of the
Company or the market for the Common Stock. The purpose of the special
conversion right is to provide (subject to certain exceptions) partial loss
protection upon the occurrence of a Change of Control or a Fundamental Change
(each as defined below) at a time when the Market Value (as defined below) of
the Common Stock issuable upon conversion by a holder at the prevailing
conversion price is less than the amount to which the holder would be entitled
upon redemption. In such situations, the special conversion right would, for a
limited period, reduce the then prevailing conversion price to the higher of
the Market Value of the Common Stock or a minimum conversion price of $6.53 per
share of Common Stock, subject to certain adjustments (and increase the
equivalent conversion ratio
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accordingly). Consequently, to the extent that the Market Value of the Common
Stock is less than the minimum conversion price, a holder will have a lesser
degree of protection from loss upon exercise of a special conversion right.
The special conversion right is intended to provide limited loss
protection to investors in certain circumstances, while not giving holders a
veto power over significant transactions affecting ownership or control of the
Company. Although the special conversion right may render more costly or
otherwise inhibit certain proposed transactions, its purpose is not to inhibit
or discourage takeovers or other business combinations.
Each holder of the $1.50 Convertible Preferred Stock will be entitled
to a special conversion right if a Change of Control or Fundamental Change
occurs. A Change of Control will occur if a person or group acquires more than
55 percent of the Common Stock. A Fundamental Change is, generally, a sale of
all or substantially all the Company's assets or a transaction in which at
least 55 percent of the Common Stock is transferred for, or is converted into,
any other asset. However, if the majority of the value of the consideration
received in a transaction by holders of Common Stock is Marketable Stock (as
defined below) or if the holders of Common Stock hold a majority of the Voting
Stock (as defined below) of the Company's successor, the transaction will not
be a Fundamental Change, and holders of the $1.50 Convertible Preferred Stock
will not have special conversion rights as the result of that transaction.
A special conversion right will permit a holder of $1.50 Convertible
Preferred Stock, at the holder's option during the 30-day period described in
the following paragraph, to convert all, but not less than all, the holder's
$1.50 Convertible Preferred Stock at a conversion price equal to the Special
Conversion Price, as defined below. A holder exercising a special conversion
right will receive Common Stock if a Change of Control occurs and, if a
Fundamental Change occurs, will receive the same consideration received for the
number of shares of Common Stock into which the holder's $1.50 Convertible
Preferred Stock would have been convertible at the Special Conversion Price.
In either case, however, the Company or its successor may, at its option, elect
to pay to the holder cash equal to the Market Value of the number of shares of
Common Stock into which the holder's $1.50 Convertible Preferred Stock is
convertible at the Special Conversion Price.
The Company will mail to each registered holder of $1.50 Convertible
Preferred Stock a notice setting forth details of any special conversion right
occasioned by a Change of Control or Fundamental Change within 30 days after
the event occurs. A special conversion right may be exercised only within the
30-day period after the notice is mailed and will expire at the end of that
period. Exercise of a special conversion right, to the extent permitted by
law, is irrevocable, and all $1.50 Convertible Preferred Stock surrendered for
conversion will be converted at the end of the 30-day period mentioned in the
preceding sentence. The Company, in taking any action in connection with any
Change of Control, Fundamental Change or related special conversion right, will
undertake to comply with all applicable federal securities regulations
including, to the extent applicable, Rules 13e-4 and 14e-1 under the Securities
Exchange Act of 1934 (the "Exchange Act").
The $1.50 Convertible Preferred Stock that is not converted pursuant
to a special conversion right will continue to be convertible pursuant to the
general conversion rights described under the caption "Conversion Rights"
above.
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The special conversion right is not intended to, and does not, protect
holders of $1.50 Convertible Preferred Stock in all circumstances that might
affect ownership or control of the Company or the market for the Common Stock
or that might otherwise adversely affect the value of an investment in the
$1.50 Convertible Preferred Stock. The ability to control the Company may be
obtained by a person even if that person does not, as is required to constitute
a Change of Control, acquire 55 percent of the Company's voting stock. The
Company and the market for the Common Stock may be affected by various
transactions that do not constitute a Fundamental Change. In particular,
transactions involving the transfer or conversion of less than 55 percent of
the Common Stock may have a significant effect on the Company and the market
for the Common Stock, as could transactions in which holders of Common Stock
receive primarily Marketable Stock or continue to own a majority of the Voting
Stock of the successor to the Company. In addition, if the special conversion
right does arise as the result of a Fundamental Change, the special conversion
right will allow a holder exercising a special conversion right to receive the
same type of consideration received by the holders of Common Stock and, thus,
the degree of protection afforded by the special conversion right may be
affected by the type of consideration received.
As used herein, a "Change of Control" with respect to the Company
shall be deemed to have occurred at the first time after the first issuance of
any $1.50 Convertible Preferred Stock that any person (within the meaning of
Sections 13(d)(3) and 14(d)(2) of the Exchange Act), including a group (within
the meaning of Rule 13d-5 under the Exchange Act), together with any of its
Affiliates or Associates (as defined below), files or becomes obligated to file
a report (or any amendment or supplement thereto) on Schedule 13D or 14D-1
pursuant to the Exchange Act disclosing that such person has become the
beneficial owner of either (i) more than 55 percent of the shares of Common
Stock then outstanding or (ii) securities representing more than 55 percent of
the combined voting power of the Voting Stock (as defined below) then
outstanding; provided that a Change of Control will not be deemed to have
occurred with respect to any transaction that constitutes a Fundamental Change.
An "Affiliate" of a specified person is a person that directly or indirectly
controls, or is controlled by or is under common control with, the person
specified. An "Associate" of a person means (a) any corporation or
organization, other than the Company or any subsidiary of the Company, of which
the person is an officer or partner or is, directly or indirectly, the
beneficial owner of 10 percent or more of any class of equity securities, (b)
any trust or estate in which the person has a substantial beneficial interest
or as to which the person serves as trustee or in a similar fiduciary capacity
and (c) any relative or spouse of the person, or any relative of the spouse,
who has the same home as the person or who is a director or officer of the
person or any of its parents or subsidiaries. As used herein, a person shall
be deemed to have "beneficial ownership" with respect to, and shall be deemed
to "beneficially own," any securities of the Company in accordance with Section
13 of the Exchange Act and the rules and regulations (including Rule 13d-3,
Rule 13d-5 and any successor rules) promulgated by the Securities and Exchange
Commission (the "Commission") thereunder; provided that a person shall be
deemed to have beneficial ownership of all securities that any such person has
a right to acquire whether such right is exercisable immediately or only after
the passage of time and without regard to the 60-day limitation referred to in
Rule 13d-3.
As used herein, a "Fundamental Change" with respect to the Company
means (i) the occurrence of any transaction or event in connection with which
55 percent or more of the outstanding Common Stock is exchanged for, converted
into, acquired for or constitutes solely the right to receive cash, securities,
property or other assets (whether by means of an exchange offer, liquidation,
tender offer, consolidation, merger, combination, reclassification,
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recapitalization or otherwise) or (ii) the conveyance, sale, lease, assignment,
transfer or other disposal of all or substantially all of the Company's
property, business or assets; provided, however, that a Fundamental Change will
not be deemed to have occurred with respect to either of the following
transactions or events: (a) any transaction or event in which more than 50
percent (by value as determined in good faith by the Board of Directors) of the
consideration received by holders of Common Stock consists of Marketable Stock
(as defined below) or (b) any consolidation or merger of the Company in which
the holders of Common Stock immediately prior to such transaction own, directly
or indirectly, (1) 50 percent or more of the common stock of the sole surviving
corporation (or of the ultimate parent of such sole surviving corporation)
outstanding at the time immediately after such consolidation or merger and (2)
securities representing 50 percent or more of the combined voting power of the
surviving corporation's Voting Stock (or of the Voting Stock of the ultimate
parent of such surviving corporation) outstanding at such time. There is no
established meaning of what constitutes a sale of "all or substantially all" of
a company's property, business or assets. This uncertainty may make it
difficult for a holder to determine whether or not a "Fundamental Change" has
occurred, and thus, whether he is entitled to a special conversion right
respecting the shares of $1.50 Convertible Preferred Stock held by him.
As used herein, "Voting Stock" means, with respect to any person,
capital stock of such person having general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of such person (irrespective of whether or not at the time capital
stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency).
As used herein, "Special Conversion Price" means (i) the higher of (a)
the Market Value of the Common Stock or (b) $6.53 per share (which amount will,
each time the conversion price is adjusted, be adjusted so that the ratio of
such amount to the conversion price, after giving effect to any such
adjustment, shall always be the same as the ratio of $6.53 to the initial
conversion price, without giving effect to any such adjustment) multiplied by
(ii) a ratio the numerator of which is $25.00 and the denominator of which is
the Redemption Price (or, if prior to the date on which the Company may begin
to redeem the $1.50 Convertible Preferred Stock, the Redemption Price
applicable commencing on such date).
As used herein, "Market Value" of the Common Stock or any other
Marketable Stock is the average of the last reported sales prices of the Common
Stock or such other Marketable Stock, as the case may be, for the five trading
days ending on the last trading day preceding the date of the Fundamental
Change or Change of Control; provided, however, that if the Marketable Stock is
not traded on any national securities exchange or similar quotation system as
described in the definition of "Marketable Stock" during such period, then the
Market Value of such Marketable Stock is the average of the last reported sales
prices per share of such Marketable Stock during the first five trading days
commencing with the first day after the date on which such Marketable Stock was
first distributed to the general public and traded on the New York Stock
Exchange, the American Stock Exchange, the Nasdaq National Market or any
similar system of automated dissemination of quotations of securities prices in
the United States.
As used herein, the term "Marketable Stock" means Common Stock or
common stock of any corporation that is the successor to all or substantially
all of the business or assets of the Company as a result of a Fundamental
Change or of the ultimate parent of such successor, which is (or will, upon
distribution thereof, be) listed or quoted on the New York Stock Exchange, the
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American Stock Exchange, the Nasdaq National Market or any similar system of
automated dissemination of quotations of securities prices in the United
States.
RESTRICTIONS ON DIVIDENDS
Senior Note Indenture. Certain provisions of the indenture (the
"Senior Note Indenture") governing the Company's outstanding 9 1/4% Senior
Notes Due 2003 (the "Senior Notes") restrict the Company's ability to pay cash
dividends on Common Stock and $1.50 Convertible Preferred Stock. Under the
Senior Note Indenture, the Company may not make certain Restricted Payments (as
defined in the Senior Note Indenture), including dividends and other payments
with respect to Common Stock and $1.50 Convertible Preferred Stock, if (i) a
default under the Senior Note Indenture is continuing or would result from such
Restricted Payment; (ii) for the 12-month period ending on the last day of the
Company's most recently completed fiscal quarter, the Company's consolidated
interest coverage ratio was less than (A) 2.0:1, for any such payment occurring
on or prior to December 31, 1995, or (B) 2.5:1, for any such payment occurring
on or after January 1, 1996; or (iii) after giving effect to such Restricted
Payment, the aggregate amount of all Restricted Payments since October 7, 1993,
the date of issuance of the Senior Notes, exceeds the sum (such sum, the
"Restricted Payment Basket") of (A) 50 percent of the Aggregate Consolidated
Net Income (as defined in the Senior Note Indenture) of the Company (or if such
consolidated net income is a deficit, minus 100 percent of such deficit)
accrued during the period beginning on October 1, 1993 and ending on the last
day of the fiscal quarter ending immediately prior to the date of such proposed
Restricted Payment; (B) the aggregate net cash proceeds received by the Company
from the issuance or sale of certain capital stock of the Company subsequent to
October 7, 1993 and the liability (expressed as a positive number) of any
indebtedness of the Company, or the carrying value of any redeemable stock of
the Company (including the $1.50 Convertible Preferred Stock), which has been
converted into shares of Common Stock subsequent to October 7, 1993; and (C)
$10,000,000.
The payment of dividends on the $1.50 Convertible Preferred Stock
constitutes Restricted Payments for all purposes of the Senior Note Indenture
and, accordingly, is subject to the Restricted Payment Basket. To the extent
that the payment of dividends on Common Stock, if any were to be made, or the
payment of accrued dividends on the $1.50 Convertible Preferred Stock would
result in the aggregate amount of all Restricted Payments made by the Company
exceeding the Restricted Payment Basket, and during such times that the
aggregate amount of all Restricted Payments exceeds the Restricted Payment
Basket, such dividend payments on Common Stock and $1.50 Convertible Preferred
Stock will be prohibited under the provisions of the Senior Note Indenture.
Credit Agreement. On June 16, 1994, the Company entered into a credit
agreement (the "Credit Agreement") with two banks providing for a $25 million
revolving line of credit. Certain provisions of the Credit Agreement restrict
the Company's ability to pay cash dividends on Common Stock and $1.50
Convertible Preferred Stock. Under the Credit Agreement, the Company may not
make certain Restricted Payments (as defined in the Credit Agreement),
including dividends and other payments with respect to Common Stock and $1.50
Convertible Preferred Stock, if (i) a default under the Credit Agreement is
continuing or would result from such Restricted Payment; (ii) the Company's
tangible net worth is less than the sum of (A) $280,000,000, plus (B) 50
percent of any positive net income of the Company computed on a cumulative
basis for the period beginning April 30, 1994 and ending on the last day of the
fiscal quarter immediately preceding the date of any determination, with no
negative adjustment to be
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made in the event net income is a deficit figure for any fiscal period, plus
(C) 85 percent of the aggregate amount of net non-cash proceeds, and 100
percent of net cash proceeds, to the Company from the issuance or sale after
April 30, 1994, and determined as of the last day of each fiscal quarter
subsequent to March 31, 1994, of (x) shares of Common Stock or warrants, rights
or options to purchase or acquire Common Stock and (y) shares of preferred
stock of the Company, provided that such 85 percent rate will increase to 100
percent at such time as the aggregate of all net non-cash proceeds from the
sale by the Company of Common Stock, or warrants, rights or options to purchase
or acquire Common Stock, exceeds $300,000,000; or (iii) the Company's debt to
capital ratio exceeds 0.35:1.
FOREIGN OWNERSHIP
The Certificate of Incorporation contains provisions that limit
foreign ownership of the stock of the Company. These provisions are to protect
the ability of the Company to continue to own its mobile offshore drilling
units as U.S. flag vessels and to comply with covenants of the Company to
maintain U.S. citizenship (as defined) that are contained in certain financing
agreements.
In order to continue to enjoy the benefits of U.S. flag registry for
its vessels, the Company must maintain "United States citizenship" as defined
in the Shipping Act, 1916, as amended (the "Shipping Act"). A corporation is
not considered a U.S. citizen for these purposes unless, among other things,
the controlling interest therein (a majority in the case of non-coastwise
trade) is owned by U.S. citizens. Under regulations adopted by the U.S.
Maritime Administration to implement the citizenship requirements, the
"controlling interest" test is applied to each class of stock of the Company.
The Common Stock and the Company's preferred stock (combining all series of
preferred stock) are considered to be separate classes of stock for this
purpose.
Under the provisions of the Certificate of Incorporation, (i) any
transfer, or attempted or purported transfer, of any shares of stock of the
Company that would result in the ownership or control by one or more persons
who is not a U.S. citizen for purposes of the Shipping Act of an aggregate
percentage of the shares of any class of stock in excess of a fixed percentage
(the "Permitted Percentage") that is equal to 90 percent of the percentage that
would prevent the Company from being a U.S. citizen (currently 50 percent) for
purposes of the Shipping Act, will, for so long as such excess shall exist, be
void and ineffective as against the Company, and (ii) if at any time ownership
of shares of stock of the Company (either of record or beneficial) by persons
other than U.S. citizens exceeds the Permitted Percentage, the Company may
withhold payment of dividends on such shares determined to be in excess of the
Permitted Percentage and may suspend voting rights attributable to such shares.
The shares subject to any such withholding of dividends or suspension of voting
rights would be those foreign-owned shares that the Board of Directors of the
Company determines became so owned most recently. The Permitted Percentage is
currently 45 percent.
CERTAIN CORPORATE GOVERNANCE PROVISIONS
Stockholder Consent Action Prohibited. The Certificate of
Incorporation and Bylaws of the Company require that, subject to the possible
rights of the holders of any class or series of stock having a preference over
the Common Stock as to dividends or upon liquidation, stockholder action be
taken only at an annual meeting or at a special meeting of stockholders called
by the Chairman of the Board or the President of the Company or by a majority
of the
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entire Board of Directors of the Company, and prohibit stockholder action by
written consent in lieu of a meeting. Stockholders are not permitted to call a
special meeting of stockholders or to require that the Board of Directors of
the Company call such a special meeting.
Classified Board and Other Provisions. The Certificate of
Incorporation and Bylaws of the Company provide that, subject to the possible
rights of the holders of any class or series of stock having a preference over
the Common Stock as to dividends or upon liquidation, the Board of Directors of
the Company will be composed of not less than three directors, with the exact
number of directors fixed from time to time by resolution adopted by vote of a
majority of the entire Board of Directors, and is divided into three classes of
directors, each class to be as nearly equal in number as possible. The term of
office of one class of directors expires each year in rotation so that one
class is elected at each annual meeting of stockholders for a full three-year
term.
The Certificate of Incorporation and Bylaws of the Company provide
that a director may be removed only for cause as defined in the Certificate of
Incorporation, and only by the affirmative vote of the holders of a majority of
the combined voting power of the Voting Stock.
The Certificate of Incorporation provides that, subject to the
possible rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation, a vacancy
on the Board resulting from any increase in the number of directors may be
filled by the Board or in the manner provided in the Bylaws of the Company,
that any other vacancy shall be filled only by an affirmative vote of a
majority of directors remaining in office, even though less than a quorum, and
that the newly-elected director shall serve for the unexpired term of his
predecessor in office. The Bylaws provide that if any vacancy resulting from
an increase in the number of directors is not filled by the remaining directors
it will be filled by the stockholders of the Company at the next annual meeting
or at a special meeting of stockholders called for that purpose.
An anti-takeover effect is accomplished by these provisions in that
they tend to preclude a third party from removing incumbent directors and
simultaneously gaining control of the Board by filling the vacancies created by
removal with its own nominees unless such third party controls at least 80
percent of the combined voting power of the Voting Stock (the ownership level
required to amend the Certificate Incorporation and Bylaws in this respect).
Under these provisions, together with the classified board provisions described
above, it would take at least two elections of directors for any individual or
group to gain control of the Board.
Fair Price Provision. The affirmative vote of the holders of at least
80 percent of the combined voting power of the Voting Stock is required to
approve certain Business Combinations (as such term is defined in the
Certificate of Incorporation). The transactions included in the definition of
Business Combination are those between the Company and an Interested
Stockholder (as defined below) or, in certain instances, proposed by an
Interested Stockholder and include: (a) a merger or consolidation of the
Company, or any subsidiary having assets of $1,000,000 or more, with any
Interested Stockholder or with any other corporation or entity that is, or
after such merger or consolidation would be, an affiliate or associate of an
Interested Stockholder; (b) the sale or other disposition by the Company, or a
subsidiary, of assets of $1,000,000 or more if an Interested Stockholder (or an
affiliate or associate thereof) is a party to the transaction; (c) the issuance
or transfer of any securities of the Company, or a subsidiary, to an Interested
Stockholder (or an affiliate or associate thereof) in exchange for cash,
securities or other property
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(or a combination thereof) of $1,000,000 or more; (d) the adoption of any plan
or proposal for the liquidation or dissolution of the Company proposed by or on
behalf of an Interested Stockholder (or an affiliate or associate thereof); (e)
any reclassification of securities, recapitalization, merger with a subsidiary
or other transaction that has the effect, directly or indirectly, of increasing
the proportionate share of the outstanding shares (or securities convertible
into shares) of any class or series of stock of the Company or a subsidiary
owned by an Interested Stockholder (or an affiliate or associate thereof); (f)
any series or combination of transactions directly or indirectly having the
same effect as any of the foregoing; or (g) any contract, agreement or other
arrangement providing directly or indirectly for any of the foregoing. An
"Interested Stockholder" is defined in the Certificate of Incorporation to
include a beneficial owner of five percent or more of the combined voting power
of the Voting Stock, other than the Company, and any affiliate of the Company
who, at any time during the preceding two years, was the beneficial owner of
five percent or more of the combined voting power of the Voting Stock and
includes any person who is an assignee of or has succeeded to any shares of
Voting Stock in a transaction not involving a public offering which were at any
time within the prior two-year period beneficially owned by an Interested
Stockholder. The term "beneficial owner" includes persons directly and
indirectly owning or having the right to acquire or vote the stock in question.
The provisions of the Certificate of Incorporation of the Company
described in the preceding paragraph may have the effect of delaying, deterring
or preventing a change in control of the Company. The special vote requirement
of such provisions may be waived if the Business Combination is duly approved
by a majority of the Disinterested Directors (as such term is defined in the
Certificate of Incorporation) or if certain minimum price criteria and
procedural requirements are met. There is no requirement that a Business
Combination duly approved by the Disinterested Directors meet any minimum price
criteria or procedural requirements.
Alteration or Amendment. The approval of the holders of 80 percent or
more of the combined voting power of the Voting Stock is required for the
alteration, amendment or repeal of, or the adoption of any provision
inconsistent with, the foregoing corporate governance provisions as stated in
the Certificate of Incorporation. In addition, the affirmative vote of a
majority of the entire Board may authorize the alteration, amendment or repeal
of the Bylaws of the Company.
Elimination of Certain Director Liability; Indemnification. The
Certificate of Incorporation contains an article, which was approved by
stockholders at the 1987 annual meeting of stockholders, that eliminates the
personal liability of the Company's directors for monetary damages resulting
from breaches of their fiduciary duty, to the extent permitted by the DGCL.
This article eliminates the liability of each director to the Company or its
stockholders for all claims for negligence or gross negligence in the
performance of his duties other than the duty of loyalty. Directors remain
liable to the Company and its stockholders for breaches of their duty of
loyalty, as well as for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, and for transactions from
which a director derives improper personal benefit. The article does not limit
the liability of directors under Section 174 of the DGCL, which makes directors
personally liable for unlawful dividends or unlawful stock repurchases or
redemptions and expressly sets forth a negligence standard with respect to such
liability.
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The Certificate of Incorporation and the Bylaws of the Company contain
provisions providing for the indemnification of the Company's directors and
officers to the fullest extent permitted by Section 145 of the DGCL, including
in circumstances in which indemnification is otherwise discretionary.
The Company believes that these provisions are necessary to attract
and retain qualified persons as directors and officers.
The Delaware Business Combination Act. The Company is covered by
Section 203 of the DGCL which provides that a corporation shall not engage in
any business combination with an "interested stockholder" for a period of three
years following the date that such stockholder became an interested stockholder
unless: (1) prior to such date, the board of directors of the corporation
approved either the business combination or the transaction that resulted in
the stockholder becoming an interested stockholder, (2) upon consummation of
such transaction, the interested stockholder owned at least 85 percent of the
voting stock of the corporation outstanding at the time (excluding, from the
calculation of outstanding shares, shares beneficially owned by management,
directors and certain employee stock plans), or (3) on or after such date, the
business combination is (i) approved by the board of directors and (ii)
authorized at a meeting of stockholders by the affirmative vote of the holders
of at least two-thirds of the outstanding voting stock other than the
interested stockholder.
ITEM 2. EXHIBITS.
In accordance with the Instructions as to Exhibits of Form 8-A, the
following exhibits are not filed with, or incorporated by reference in, copies
of this Registration Statement filed with the Securities and Exchange
Commission, but are filed with each copy of this Registration Statement filed
with the New York Stock Exchange, Inc.:
1. Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995.
2. Proxy statement of the Registrant for the annual meeting of
stockholders held on April 27, 1995.
3. Certificate of Incorporation of the Registrant, as amended
(including the Certificate of Designations for the $1.50
Convertible Preferred Stock), and composite copy of the Bylaws
of the Registrant as currently in effect.
4. Specimens of Common Stock certificate and $1.50 Convertible
Preferred Stock certificate.
5. Registrant's Annual Report to Stockholders for 1994, including
therein the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, as amended, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
NOBLE DRILLING CORPORATION
Date: March 14, 1996 By: /s/ Byron L. Welliver
--------------------------------------
Byron L. Welliver,
Senior Vice President - Finance,
Treasurer and Controller
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