<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 4, 1996
REGISTRATION NO. 333-02929
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
---------------------
NOBLE DRILLING CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 73-0374541
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
10370 RICHMOND AVENUE, SUITE 400
HOUSTON, TEXAS 77042
(713) 974-3131
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
---------------------
JAMES C. DAY
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
NOBLE DRILLING CORPORATION
10370 RICHMOND AVENUE, SUITE 400
HOUSTON, TEXAS 77042
(713) 974-3131
(Address, including zip code, and telephone number, including
area code, of agent for service)
---------------------
<TABLE>
<S> <C>
Copies to:
ROBERT D. CAMPBELL JAMES M. PRINCE
THOMPSON & KNIGHT, P.C. ANDREWS & KURTH L.L.P.
1700 PACIFIC AVENUE 4200 TEXAS COMMERCE TOWER
SUITE 3300 600 TRAVIS STREET
DALLAS, TEXAS 75201 HOUSTON, TEXAS 77002
(214) 969-1700 (713) 220-4200
</TABLE>
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
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. / /
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 of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
---------------------
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 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Except for the SEC registration fee and the NASD filing fee, all expenses
are estimated. All such expenses will be paid by the Registrant.
<TABLE>
<S> <C>
SEC registration fee.............................................. $ 43,103
NASD filing fee................................................... 13,000
Accounting fees and expenses...................................... 57,500
Legal fees and expenses........................................... 75,000
Printing and engraving expenses................................... 110,000
Blue sky fees and expenses (including legal fees)................. 13,000
Miscellaneous..................................................... 38,397
--------
Total................................................... $350,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is a Delaware corporation. Under Section 145 of the General
Corporation Law of the State of Delaware, the Registrant has the power to
indemnify its directors and officers, subject to certain limitations.
Reference is made to Article VI of the Bylaws of the Registrant, which
Article is filed as part of Exhibit 3.12 hereto and provides for indemnification
of directors and officers of the Registrant under certain circumstances.
Reference is made to Section 6 of the form of the Purchase Agreement filed
as Exhibit 1.1 hereto for provisions relating to the indemnification of
directors, officers and controlling persons of the Registrant against certain
liabilities, including liabilities under the Securities Act of 1933.
Pursuant to the General Corporation Law of the State of Delaware, the
Certificate of Incorporation of the Registrant, filed as Exhibits 3.1 through
3.11 hereto, limits the personal liability of the directors of the Registrant to
the Registrant or its stockholders for monetary damages for breach of fiduciary
duty under certain circumstances.
The Registrant also maintains insurance to protect itself and its
directors, officers, employees and agents against expenses, liabilities and
losses incurred by such persons in connection with their service in the
foregoing capacities.
The foregoing summaries are necessarily subject to the complete text of the
statute, bylaw, agreement, certificate of incorporation and insurance policy
referred to above and are qualified in their entirety by reference thereto.
II-1
<PAGE> 3
ITEM 16. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
NUMBER EXHIBIT
------ -------
<S> <C>
1.1+ -- Form of Purchase Agreement.
2.1 -- Agreement of Sale and Purchase dated as of April 25, 1996, between
the Registrant, and Royal Nedlloyd N.V. and Neddrill Holding B.V.
(filed as Exhibit 2.1 to the Registrant's Registration Statement on
Form S-3 (No. 333-02927) and incorporated herein by reference.)
3.1 -- Restated Certificate of Incorporation of the Registrant dated August
29, 1985 (filed as Exhibit 3.7 to the Registrant's Registration
Statement on Form 10 (No. 9-13857) and incorporated herein by
reference).
3.2 -- Certificate of Amendment of Restated Certificate of Incorporation of
the Registrant dated May 5, 1987 (filed as Exhibit 4.2 to the
Registrant's Registration Statement on Form S-3 (No. 33-67130) and
incorporated herein by reference).
3.3 -- Certificate of Amendment of Restated Certificate of Incorporation of
the Registrant dated June 1, 1987 (filed as Exhibit 4.3 to the
Registrant's Registration Statement on Form S-3 (No. 33-67130) and
incorporated herein by reference).
3.4 -- Certificate of Amendment of Restated Certificate of Incorporation of
the Registrant dated April 28, 1988 (filed as Exhibit 3.12 to the
Registrant's Annual Report on Form 10-K for the year ended December
31, 1988 and incorporated herein by reference).
3.5 -- Certificate of Amendment of Restated Certificate of Incorporation of
the Registrant dated April 27, 1989 (filed as Exhibit 3.13 to the
Registrant's Annual Report on Form 10-K for the year ended December
31, 1989, as amended, and incorporated herein by reference).
3.6 -- Certificate of Amendment of Certificate of Incorporation of the
Registrant dated August 1, 1991 (filed as Exhibit 3.16 to the
Registrant's Annual Report on Form 10-K for the year ended December
31, 1991 and incorporated herein by reference).
3.7 -- Certificate of Designations of $1.50 Convertible Preferred Stock, par
value of $1.00 per share, of the Registrant, dated as of September
15, 1994 (filed as Exhibit 3.8 to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1994 and incorporated
herein by reference).
3.8 -- Certificate of Amendment of Certificate of Incorporation of the
Registrant dated September 15, 1994 (filed as Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q for the three-month period
ended March 31, 1995 and incorporated herein by reference).
3.10 -- Certificate of Elimination of shares of $2.25 Convertible
Exchangeable Preferred Stock of the Registrant dated June 8, 1995
(filed as Exhibit 3.1 to the Registrant's Quarterly Report on Form
10-Q for the three-month period ended June 30, 1995 and incorporated
herein by reference).
3.11 -- Certificate of Designations of Series A Junior Participating
Preferred Stock, par value $1.00 per share, of the Registrant dated
as of June 29, 1995 (filed as Exhibit 3.2 to the Registrant's
Quarterly Report on Form 10-Q for the three-month period ended June
30, 1995 and incorporated herein by reference).
3.12 -- Composite copy of the Bylaws of the Registrant as currently in effect
(filed as Exhibit 3.4 to the Registrant's Quarterly Report on Form
10-Q for the three-month period ended June 30, 1995 and incorporated
herein by reference).
</TABLE>
II-2
<PAGE> 4
<TABLE>
<CAPTION>
NUMBER EXHIBIT
------ -------
<S> <C>
4.1* -- Form of Indenture governing the % Senior Notes due 2006.
5.1* -- Opinion of Thompson & Knight, P.C.
10.1* -- Amendment No. 6 to the Noble Drilling Corporation Thrift Plan.
12.1+ -- Statement re Computation of Ratios of Earnings to Fixed Charges.
23.1* -- Consent of Price Waterhouse LLP.
23.2* -- Consent of Arthur Andersen LLP.
23.3* -- Consent of KPMG Accountants N.V.
23.4* -- Consent of Thompson & Knight, P.C. (contained in its opinion filed as
Exhibit 5.1).
24.1* -- Powers of Attorney.
25.1* -- Form of Statement of Eligibility and Qualification of Trustee under
the Trust Indenture Act of 1939 on Form T-1.
</TABLE>
- ---------------
+ Filed herewith.
* Filed previously.
ITEM 17. UNDERTAKINGS.
(b) Filings incorporating subsequent Exchange Act documents by reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or 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.
(h) Acceleration of effectiveness.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities 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 Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant 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 Registrant 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.
(i) Rule 430A.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
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 Amendment No. 2 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Houston, State of Texas, on the 31st
day of May, 1996.
NOBLE DRILLING CORPORATION
By /s/ BYRON L. WELLIVER
---------------------------------
Byron L. Welliver
Senior Vice President -- Finance,
Treasurer and Controller
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 2 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ JAMES C. DAY* Chairman, President and Chief
- -------------------------------------------- Executive Officer and
James C. Day Director (Principal
Executive Officer)
/s/ BYRON L. WELLIVER Senior Vice May 31, 1996
- -------------------------------------------- President -- Finance,
Byron L. Welliver Treasurer and Controller
(Principal Financial and
Accounting Officer)
/s/ MICHAEL A. CAWLEY* Director
- --------------------------------------------
Michael A. Cawley
/s/ LAWRENCE J. CHAZEN* Director
- --------------------------------------------
Lawrence J. Chazen
/s/ TOMMY C. CRAIGHEAD* Director
- --------------------------------------------
Tommy C. Craighead
/s/ JAMES L. FISHEL* Director
- --------------------------------------------
James L. Fishel
/s/ JOHNNIE W. HOFFMAN* Director
- --------------------------------------------
Johnnie W. Hoffman
/s/ MARC E. LELAND* Director
- --------------------------------------------
Marc E. Leland
</TABLE>
II-4
<PAGE> 6
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ BILL M. THOMPSON* Director
- --------------------------------------------
Bill M. Thompson
* By: /s/ BYRON L. WELLIVER May 31, 1996
- ---------------------------------------------
Byron L. Welliver
Attorney-in-fact
</TABLE>
II-5
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
NUMBER EXHIBIT
------ -------
<S> <C>
1.1+ -- Form of Purchase Agreement.
2.1 -- Agreement of Sale and Purchase dated as of April 25, 1996, between
the Registrant, and Royal Nedlloyd N.V. and Neddrill Holding B.V.
(filed as Exhibit 2.1 to the Registrant's Registration Statement on
Form S-3 (No. 333-02927) and incorporated herein by reference.)
3.1 -- Restated Certificate of Incorporation of the Registrant dated August
29, 1985 (filed as Exhibit 3.7 to the Registrant's Registration
Statement on Form 10 (No. 9-13857) and incorporated herein by
reference).
3.2 -- Certificate of Amendment of Restated Certificate of Incorporation of
the Registrant dated May 5, 1987 (filed as Exhibit 4.2 to the
Registrant's Registration Statement on Form S-3 (No. 33-67130) and
incorporated herein by reference).
3.3 -- Certificate of Amendment of Restated Certificate of Incorporation of
the Registrant dated June 1, 1987 (filed as Exhibit 4.3 to the
Registrant's Registration Statement on Form S-3 (No. 33-67130) and
incorporated herein by reference).
3.4 -- Certificate of Amendment of Restated Certificate of Incorporation of
the Registrant dated April 28, 1988 (filed as Exhibit 3.12 to the
Registrant's Annual Report on Form 10-K for the year ended December
31, 1988 and incorporated herein by reference).
3.5 -- Certificate of Amendment of Restated Certificate of Incorporation of
the Registrant dated April 27, 1989 (filed as Exhibit 3.13 to the
Registrant's Annual Report on Form 10-K for the year ended December
31, 1989, as amended, and incorporated herein by reference).
3.6 -- Certificate of Amendment of Certificate of Incorporation of the
Registrant dated August 1, 1991 (filed as Exhibit 3.16 to the
Registrant's Annual Report on Form 10-K for the year ended December
31, 1991 and incorporated herein by reference).
3.7 -- Certificate of Designations of $1.50 Convertible Preferred Stock, par
value of $1.00 per share, of the Registrant, dated as of September
15, 1994 (filed as Exhibit 3.8 to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1994 and incorporated
herein by reference).
3.8 -- Certificate of Amendment of Certificate of Incorporation of the
Registrant dated September 15, 1994 (filed as Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q for the three-month period
ended March 31, 1995 and incorporated herein by reference).
3.10 -- Certificate of Elimination of shares of $2.25 Convertible
Exchangeable Preferred Stock of the Registrant dated June 8, 1995
(filed as Exhibit 3.1 to the Registrant's Quarterly Report on Form
10-Q for the three-month period ended June 30, 1995 and incorporated
herein by reference).
3.11 -- Certificate of Designations of Series A Junior Participating
Preferred Stock, par value $1.00 per share, of the Registrant dated
as of June 29, 1995 (filed as Exhibit 3.2 to the Registrant's
Quarterly Report on Form 10-Q for the three-month period ended June
30, 1995 and incorporated herein by reference).
3.12 -- Composite copy of the Bylaws of the Registrant as currently in effect
(filed as Exhibit 3.4 to the Registrant's Quarterly Report on Form
10-Q for the three-month period ended June 30, 1995 and incorporated
herein by reference).
4.1* -- Form of Indenture governing the % Senior Notes due 2006.
5.1* -- Opinion of Thompson & Knight, P.C.
</TABLE>
<PAGE> 8
<TABLE>
<CAPTION>
NUMBER EXHIBIT
- -------------------- ------------------------------------------------------------------------
<S> <C>
10.1* -- Amendment No. 6 to the Noble Drilling Corporation Thrift Plan.
12.1+ -- Statement re Computation of Ratios of Earnings to Fixed Charges.
23.1* -- Consent of Price Waterhouse LLP.
23.2* -- Consent of Arthur Andersen LLP.
23.3* -- Consent of KPMG Accountants N.V.
23.4* -- Consent of Thompson & Knight, P.C. (contained in its opinion filed as
Exhibit 5.1).
24.1* -- Powers of Attorney.
25.1* -- Form of Statement of Eligibility and Qualification of Trustee under
the Trust Indenture Act of 1939 on Form T-1.
</TABLE>
- ---------------
+ Filed herewith.
* Filed previously.
<PAGE> 1
EXHIBIT 1.1
DEBT
================================================================================
Draft of 5/31/96
NOBLE DRILLING CORPORATION
(a Delaware corporation)
$125,000,000
% SENIOR NOTES DUE 2006
-----------------------------------
PURCHASE AGREEMENT
-----------------------------------
Dated: June ___, 1996
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
PURCHASE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
------------------------------
(a) Representations and Warranties by the Company . . . . . . . . . . . . . . . . . . . . 3
(i) Compliance with Registration Requirements . . . . . . . . . . . . . . . . . . . . . . 4
(ii) Incorporated Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(iii) Independent Accountants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(iv) Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(v) No Material Adverse Change in Business . . . . . . . . . . . . . . . . . . . . . . . 5
(vi) Good Standing of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(vii) Good Standing of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(viii) Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(ix) Authorization of Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(x) Description of Securities and the Indenture . . . . . . . . . . . . . . . . . . . . . 7
(xi) Absence of Defaults and Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(xii) Absence of Labor Dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(xiii) Absence of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(xiv) Accuracy of Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(xv) Possession of Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . 9
(xvi) Absence of Further Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(xvii) Possession of Licenses and Permits . . . . . . . . . . . . . . . . . . . . . . . . . 9
(xviii) Title to Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(xix) Neddrill Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(xx) Compliance with Cuba Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(xxi) Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(xxii) Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(xxiii) Authorization of Securities and the Indenture . . . . . . . . . . . . . . . . . . . 11
(xxiv) Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(b) Officer's Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2. Sale and Delivery to Underwriters; Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
------------------------------------------
(a) The Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(b) Payment: Closing and Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3. Covenants of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
------------------------
(a) Compliance with Securities Regulations and Commission
Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(b) Filing of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(c) Delivery of Registration Statements . . . . . . . . . . . . . . . . . . . . . . . . 14
(d) Delivery of Prospectuses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C> <C> <C>
(e) Continued Compliance with Securities Laws . . . . . . . . . . . . . . . . . . . . . 14
(f) Blue Sky Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(g) Rule 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(h) Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(i) Restriction on Sale of Similar Securities . . . . . . . . . . . . . . . . . . . . . 15
(j) Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4. Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
-------------------
(a) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(b) Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5. Conditions of Underwriters' Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
---------------------------------------
(a) Effectiveness of Registration Statement . . . . . . . . . . . . . . . . . . . . . . 16
(b) Opinion of Counsel for Company . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(c) Opinion of Counsel for Underwriters . . . . . . . . . . . . . . . . . . . . . . . 17
(d) Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(e) Accountants' Comfort Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(f) Bring-down Comfort Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(g) Approval of Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(h) No Objection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(i) Purchase of Initial Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(j) Closing of Neddrill Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(k) Ratings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(l) Additional Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(m) Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
---------------
(a) Indemnification of Underwriters . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(b) Indemnification of Company, Directors and Officers . . . . . . . . . . . . . . . . 20
(c) Actions against Parties; Notification . . . . . . . . . . . . . . . . . . . . . . . 20
(d) Settlement without Consent if Failure to Reimburse . . . . . . . . . . . . . . . . 21
SECTION 7. Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
------------
SECTION 8. Representations, Warranties and Agreements to Survive Delivery . . . . . . . . . . . . . . . . . . . 23
--------------------------------------------------------------
SECTION 9. Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
------------------------
(a) Termination; General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(b) Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 10. Default by One or More of the Underwriters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
------------------------------------------
SECTION 11. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
-------
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C> <C> <C>
SECTION 12. Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
-------
SECTION 13. GOVERNING LAW AND TIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
----------------------
SECTION 14. Effect of Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
------------------
</TABLE>
-iii-
<PAGE> 5
NOBLE DRILLING CORPORATION
(A Delaware corporation)
$125,000,000
% Senior Notes due 2006
PURCHASE AGREEMENT
June__, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Salomon Brothers Inc
Simmons & Company International
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Dear Sirs:
Noble Drilling Corporation, a Delaware corporation (the
"Company"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), Salomon Brothers Inc
("Salomon") and Simmons & Company International ("Simmons") (collectively, the
"Underwriters", which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), with respect to the sale by the
Company and the purchase by the Underwriters, acting severally and not jointly,
of the respective principal amounts set forth in Schedule A hereto of
$125,000,000 aggregate principal amount of the Company's __% Senior Notes due
2006 (the "Securities"). The Securities are to be issued pursuant to an
Indenture dated as of June __, 1996 (the "Indenture") between the Company and
Texas Commerce Bank National Association, as trustee (the "Trustee").
Prior to the purchase and public offering of the Securities by
the several Underwriters, the Company and the Underwriters, shall enter into an
agreement substantially in the form of Exhibit A hereto (the "Pricing
Agreement"). The Pricing Agreement may take the form of an exchange of any
standard form of written telecommunication between the Company and the
Underwriters and shall specify such applicable information as is indicated in
Exhibit A hereto. The offering of the
<PAGE> 6
Securities will be governed by this Agreement, as supplemented by the Pricing
Agreement. From and after the date of the execution and delivery of the Pricing
Agreement, this Agreement shall be deemed to incorporate the Pricing Agreement.
It is understood that the Company is concurrently entering
into an agreement dated the date hereof (the "U.S. Purchase Agreement")
providing for the offering by the Company of an aggregate of 13,200,000 shares
of Common Stock, par value $.10 per share of the Company ("Common Stock") (the
"Initial U.S. Shares") through arrangements with certain underwriters in the
United States and Canada (the "U.S. Equity Underwriters") for whom Merrill
Lynch, Salomon and Simmons are acting as representatives (in such capacity, the
"U.S. Representatives") and the grant by the Company to the U.S. Equity
Underwriters, acting severally and not jointly, of an option to purchase all or
any part of the U.S. Equity Underwriters' pro rata portion of up to 1,980,000
additional shares of Common Stock solely to cover overallotments, if any (the
"U.S. Option Shares"). The Initial U.S. Shares and the U.S. Option Shares are
hereinafter called the "U.S. Shares."
It is further understood that the Company is concurrently
entering into an agreement dated the date hereof (the "International Purchase
Agreement") providing for the offering by the Company of an aggregate of
3,300,000 shares of Common Stock (the "Initial International Shares") through
arrangements with certain underwriters outside the United States and Canada
(the "International Equity Managers") for which Merrill Lynch International,
Salomon Brothers International Limited and Simmons are acting as lead managers
(the "Lead Managers") and the grant by the Company to the International Equity
Managers, acting severally and not jointly, of an option to purchase all or any
part of the International Equity Managers' pro rata portion of up to 495,000
additional shares of Common Stock solely to cover overallotments, if any (the
"International Option Shares", and together with the U.S. Option Shares, the
"Option Shares"). The Initial International Shares and the International
Option Shares are hereinafter called the "International Shares."
It is understood that the Company is not obligated to sell,
and the Underwriters are not obligated to purchase, any Securities unless all
of the Initial U.S. Shares and the Initial International Shares are
concurrently purchased by the U.S. Equity Underwriters and the International
Equity Managers, respectively. In addition, it is also agreed and understood
that the Company is not obligated to sell, and the Underwriters are not
obligated to purchase, any Securities unless, concurrently with the closing of
the sale and purchase of the Securities hereunder, the Company shall close its
acquisition pursuant to that certain Agreement of Sale and Purchase dated April
25, 1996 by and between the Company (as buyer) and Royal Nedlloyd N.V.
("Nedlloyd") and Neddrill Holding B.V. (the "Neddrill Agreement") of the assets
of Nedlloyd's offshore drilling division, Neddrill ("Neddrill").
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (No.
333-02929) and a related preliminary prospectus for the registration of the
Securities under the Securities Act of 1933 (the "1933 Act"), has filed such
amendments thereto, if any, and such amended preliminary prospectuses as may
have
2
<PAGE> 7
been required to the date hereof, and will file such additional amendments
thereto and such amended prospectuses as may hereafter be required. Such
registration statement (as amended, if applicable) and the prospectus
constituting a part thereof (including in each case all documents incorporated
or deemed to be incorporated by reference therein and the information, if any,
deemed to be part thereof pursuant to Rule 430A(b) or Rule 434 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")),
as from time to time amended or supplemented pursuant to the 1933 Act , the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or otherwise, are
hereinafter referred to as the "Registration Statement" and the "Prospectus",
respectively, except that if any revised prospectus shall be provided to the
Underwriters by the Company for use in connection with the offering of the
Securities which differs from the Prospectus on file at the Commission at the
time the Registration Statement becomes effective (whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of
the 1933 Act Regulations), the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Underwriters for
such use. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include
the filing of any document under the 1934 Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be. If the Company elects to rely on Rule 434 under the 1933 Act
Regulations, all references to the Prospectus shall be deemed to include,
without limitation, the form of prospectus and the term sheet, taken together,
provided to the Underwriters by the Company in reliance on Rule 434 under the
1933 Act (the "Rule 434 Prospectus"). If the Company files a registration
statement to register a portion of the Securities and relies on Rule 462(b) for
such registration statement to become effective upon filing with the Commission
(the "Rule 462(b) Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to be to both the registration statement
referred to above (No. 33-02929) and the Rule 462 Registration Statement, as
each such registration statement may be amended pursuant to the 1933 Act.
The Company understands that the Underwriters propose to make
a public offering of the Securities as soon as the Underwriters deem advisable
after the Registration Statement becomes effective and the Pricing Agreement
has been executed and delivered and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
date of the Pricing Agreement (such latter date being hereinafter referred to
as the "Representation Date") and as of the Closing Time referred to in Section
2(a) hereof, and agrees with each Underwriter, as follows:
3
<PAGE> 8
(i) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto became effective, at the Representation Date and at the
Closing Time, the Registration Statement, the Rule 462(b) Registration
Statement and any amendments and supplements thereto complied and will
comply in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any amendments or
supplements thereto were issued, at the Representation Date and at the
Closing Time, included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434
is used, the Company will comply with the requirements of Rule 434.
The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter expressly for
use in the Registration Statement or the Prospectus.
Each preliminary prospectus and the Prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated
or deemed to be incorporated by reference in the Registration
Statement and the Prospectus, when they became effective or at the
time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations or the 1934 Act and the rules
and regulations of the Commission thereunder (the "1934 Act
Regulations"), as applicable and, when read together with the other
information in the Prospectus, at the time the Registration Statement
became effective, at the time the Prospectus were issued, at the
Representation Date and at the Closing Time,
4
<PAGE> 9
did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(iii) Independent Accountants. The accountants who
certified the financial statements and supporting schedules of the
Company included in the Registration Statement are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The historical consolidated
financial statements of the Company included in the Registration
Statement and the Prospectus, together with the related schedules and
notes, present fairly in all material respects the financial position
of the Company and its consolidated subsidiaries at the dates
indicated and the statements of operations, stockholders' equity and
cash flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in
conformity with United States generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods
involved. The schedules of the Company supporting the historical
financial statements of the Company, if any, included in the
Registration Statement present fairly in all material respects and in
accordance with GAAP the information required to be stated therein.
The selected financial data and the summary financial information
relating to the historical financial statements of the Company
included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Registration Statement.
No facts have come to the attention of the Company that would lead the
Company to believe that (i) the historical financial statements of
Neddrill Holding B.V. ("Neddrill Holding") and its consolidated
subsidiaries included in the Registration Statement and the
Prospectus, together with related schedules and notes, do not present
fairly in all material respects the financial position of Neddrill
Holding and its consolidated subsidiaries at the dates indicated and
the statements of operations, stockholders' equity and cash flows of
Neddrill Holding and its consolidated subsidiaries for the periods
specified or (ii) the financial statements of Neddrill Holding and
its consolidated subsidiaries included in the Registration Statement
and the Prospectus have not been prepared in conformity with GAAP.
The pro forma financial statements and the related notes thereto
included in the Registration Statement and the Prospectus have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in
the preparation thereof are reasonable.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the financial condition,
or in the earnings, business affairs or properties, or development
involving a prospective material adverse change in the business
affairs, of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
5
<PAGE> 10
business (a "Material Adverse Effect"), (B) there have been no
transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are
material with respect to the Company and its subsidiaries or Neddrill
and its subsidiaries, in each case considered as one enterprise, (C)
except for regular quarterly dividends on the Company's $1.50
Convertible Preferred Stock, par value $1.00 per share (the "$1.50
Preferred Stock"), in amounts per share that are consistent with past
practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock and (D) there shall not have been (1) an actual, constructive,
arranged or compromised total loss (as determined by the Company's
insurance underwriter's marine surveyor) of either the Neddrill 1
Drillship, the Neddrill 2 Drillship or the Neddrill 6 semi-submersible
drilling rig or two or more other vessels of Neddrill or (2) a
cancellation, termination or rescission by Petroleo Brasiliero S.A.
("Petrobras") of either the currently existing drilling contracts with
Petrobras regarding the Neddrill 1 Drillship and the Neddrill 2
Drillship.
(vi) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into
and perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each subsidiary of
the Company listed on Schedule B hereto (each a "Subsidiary" and,
collectively, the "Subsidiaries"), and each subsidiary of Neddrill the
capital stock of which is to be acquired by the Company pursuant to
the Neddrill Agreement (the "Acquired Subsidiaries"), has been duly
organized and is validly existing as a corporation or limited
liability company under the laws of the jurisdiction of its
incorporation or organization, has corporate or limited liability
company power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectuses and is
duly qualified as a foreign corporation or limited liability company
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in
the Registration Statement, all of the issued and outstanding capital
stock of each such Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and, except for directors'
qualifying shares, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Subsidiary was issued in violation of
the preemptive or similar rights of any securityholder of such
Subsidiary. The
6
<PAGE> 11
only subsidiaries of the Company are (a) the subsidiaries listed on
Schedule B hereto and (b) certain other subsidiaries, none of which
constitutes a "Material Subsidiary" within the meaning of the
Indenture.
(viii) Capitalization. The authorized, issued and
outstanding capital stock of the Company is as set forth in the
Prospectuses in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances, if any, pursuant to
the U.S. Purchase Agreement and the International Purchase Agreement,
the issuance of 5,000,000 shares of Common Stock as contemplated by
the Neddrill Agreement (the "Neddrill Shares") or issuances pursuant
to reservations, agreements or employee benefit plans referred to in
the Prospectuses or pursuant to the exercise of convertible securities
or options referred to in the Prospectuses). The shares of issued and
outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable. The Neddrill
Shares have been duly authorized and, when issued in accordance with
the terms of the Neddrill Agreement, will be validly issued and fully
paid and non-assessable. None of the outstanding shares of capital
stock of the Company was issued, nor will the Neddrill Shares be
issued, in violation of the preemptive or other similar rights of any
securityholder of the Company.
(ix) Authorization of Agreements. This Agreement and the
Neddrill Agreement has been, and at the Representation Date, the
Pricing Agreement will have been, duly authorized, executed and
delivered by the Company.
(x) Description of Securities and the Indenture. The
Securities and the Indenture will conform in all material respects to
the respective statements relating thereto contained in the Prospectus
and will be in substantially the respective forms filed or
incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
(xi) Absence of Defaults and Conflicts. Neither the
Company nor any of its subsidiaries is in violation of its charter or
by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Company or any subsidiary is subject (collectively, "Agreements and
Instruments") except for such defaults that would not result in a
Material Adverse Effect; and the execution, delivery and performance
of this Agreement, the International Purchase Agreement, the U.S.
Purchase Agreement, the Indenture and the Neddrill Agreement and the
consummation of the transactions contemplated in this Agreement, the
International Purchase Agreement, the U.S. Purchase Agreement, the
Indenture, the Neddrill Agreement and in the Registration Statement
(including the issuance and sale of the Securities, the acquisition of
assets pursuant to the Neddrill Agreement, and the use of the proceeds
from the sale of the Securities and the Initial Shares as described in
the Prospectus under the caption "Use of Proceeds") and
7
<PAGE> 12
compliance by the Company with its obligations under this Agreement,
the International Purchase Agreement, the U.S. Purchase Agreement, the
Indenture and the Neddrill Agreement have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, constitute a
breach of, or default or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
subsidiary or the Acquired Subsidiaries pursuant to the Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any subsidiary
or the Acquired Subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their
assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company
or any subsidiary.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of Neddrill or
any of its subsidiaries, which, in either case, may reasonably be
expected to result in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect,
or which might reasonably be expected to materially and adversely
affect the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement, the International
Purchase Agreement, the U.S. Purchase Agreement, the Indenture and the
Neddrill Agreement or the performance by the Company of its
obligations hereunder or thereunder; the aggregate of all pending
legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
8
<PAGE> 13
(xv) Possession of Intellectual Property. The Company and
its subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names, or other
intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by them, and neither
the Company nor any of its subsidiaries has received any notice or is
otherwise aware of any infringement of or breach of asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities under this Agreement and the International
Purchase Agreement or the consummation of the transactions contemplated
by this Agreement, the International Purchase Agreement, the U.S.
Purchase Agreement, the Indenture and the Neddrill Agreement, except
such as have been already obtained or as may be required under the 1933
Act or the 1933 Act Regulations and foreign or state securities or blue
sky laws.
(xvii) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses")
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated by
them except where the failure to have such Government Licenses would
not have a Material Adverse Effect; the Company and its subsidiaries
are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all
of the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and neither the Company nor
any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries
have good and indefeasible title to all offshore drilling rigs
described as being owned by them in the Prospectus. Upon closing of
the transactions contemplated in the Neddrill Agreement, the Company
and its subsidiaries will have obtained good and indefeasible title to
the offshore
9
<PAGE> 14
drilling units described as owned by Neddrill in the Prospectus under
the caption "The Acquisition." All of the leases, subleases or
bareboat charters material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor
any subsidiary has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company or
any subsidiary under any of the leases, subleases or bareboat charters
mentioned above, or affecting or questioning the rights of the Company
or such subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xix) Neddrill Acquisition. The preliminary closing
contemplated by Section 10.2(b) of the Neddrill Agreement has
occurred, and upon the closing of the transaction contemplated in the
Neddrill Agreement concurrently with the closing of the transactions
contemplated in this Agreement, the International Purchase Agreement
and the U.S. Purchase Agreement, the Company and its subsidiaries will
purchase the Assets (as defined in the Neddrill Agreement) in
accordance with the Neddrill Agreement.
(xx) Compliance with Cuba Act. The Company has complied
with, and is and will be in compliance with, the provisions of that
certain Florida act relating to disclosure of doing business with
Cuba, codified as Section 517.075 of the Florida statutes, and the
rules and regulations thereunder (collectively, the "Cuba Act") or is
exempt therefrom.
(xxi) Investment Company Act. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectuses will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(xxii) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws
and regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials (collectively, "Environmental Laws"), (B) the
Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are
each in compliance with their requirements, (C) there are no pending
or threatened administrative, regulatory, or judicial
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actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to
any Environmental Law against the Company or any of its subsidiaries
and (D) there are no events or circumstances that might reasonably be
expected to form the basis of an order for clean-up or remediation, or
an action, suit or proceeding by any private party or governmental
body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(xxiii) Authorization of Securities and the Indenture. The
Indenture and the Securities have been duly authorized by the Company.
At the Closing Time, (i) the Indenture will be duly executed and
delivered by the Company and will constitute a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditor's rights generally or
by general equitable principles, (ii) the Securities will have been
duly executed by the Company and, when authenticated in the manner
provided for in the Indenture and delivered against payment of the
purchase price therefor specified in the Pricing Agreement, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles, and will be in the form contemplated by, and entitled to
the benefits of, the Indenture and (iii) the Indenture will have been
duly qualified under the 1939 Act.
(xxiv) Listing. The Securities have been approved for
listing on the New York Stock Exchange, subject to official notice of
issuance.
(b) Officer's Certificates. Any certificate signed by any officer
of the Company and delivered to the Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) The Securities. On the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price set forth in the Pricing Agreement, the
aggregate principal amount of Securities set forth in Schedule A opposite the
name of such Underwriter (except as otherwise provided in the Pricing
Agreement).
(1) If the Company has elected not to rely upon Rule 430A
under the 1933 Act Regulations, the initial public offering price and
the purchase price to be paid by the several Underwriters for the
Securities, and the interest rate on the Securities, have each been
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<PAGE> 16
determined and set forth in the Pricing Agreement, dated the date
hereof, and an amendment to the Registration Statement and the
Prospectus will be filed before the Registration Statement becomes
effective.
(2) If the Company has elected to rely upon Rule 430A
under the 1933 Act Regulations, the initial public offering price
(which shall be a fixed price) and the purchase price to be paid by
the several Underwriters for the Securities, and the interest rate on
the Securities, shall be determined by agreement between the
Underwriters and the Company and, when so determined, shall be set
forth in the Pricing Agreement. In the event that such prices and
interest rate have not been agreed upon and the Pricing Agreement has
not been executed and delivered by the parties thereto by the close of
business on the tenth business day following the date of this
Agreement, this Agreement shall terminate forthwith, without liability
of any party to any other party, unless otherwise agreed to by the
Company and the Underwriters, except that Sections 6 and 7 shall
remain in effect.
(b) Payment: Closing and Delivery. Payment of the
purchase price for, and delivery of certificates for, the Securities shall be
made at the office of Thompson & Knight, P.C., 1700 Pacific Avenue, Suite 3300,
Dallas, Texas 75201, or at such other place as shall be agreed upon by Merrill
Lynch and the Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
(unless postponed in accordance with the provisions of Section 10) following
the date the Registration Statement becomes effective (or, if the Company has
elected to rely upon Rule 430A of the 1933 Act Regulations, the third business
day after execution of the Pricing Agreement), or such other time not later
than ten business days after such date as shall be agreed upon by Merrill Lynch
and the Company (such time and date of payment and delivery being herein called
"Closing Time"). Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company,
against delivery of one or more Global Notes (as defined in the Indenture) in
the aggregate principal amount of the Securities to be purchased by them and
issued and registered in the name of "Cede & Co." as nominee for the Depositary
(as defined in the Indenture), or such other name or names and in such
denominations as the Underwriters may request in writing at least one business
day before the Closing Time. Merrill Lynch, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any
Underwriter whose check has not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder. The
Global Note or Global Notes evidencing the Securities will be made available
for examination by the Underwriters in The City of New York not later than 3:00
P.M. on the last business day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. If not yet effective at the time of execution of this Agreement, the
Company will use its best efforts to cause
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<PAGE> 17
the Registration Statement to become effective (as and when requested by the
Underwriters) and, if the Company elects to rely upon Rule 430A and subject to
Section 3(b), will comply with the requirements of Rule 430A and will notify the
Merrill Lynch immediately, and confirm the notice in writing, (i) when the
Registration Statement, or any post-effective amendment to the Registration
Statement, shall become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of or the initiation or threatening of any proceedings for any
of such purposes. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment. If the Company elects to rely
on Rule 434 under the 1933 Act Regulations, the Company will prepare an
abbreviated term sheet that complies with the requirements of Rule 434 under the
1933 Act Regulations. If Company elects not to rely on Rule 434, the Company
will provide the Underwriters with copies of the form of Prospectus, in such
number as the Underwriters may reasonably request, and file or transmit for
filing with the Commission such Prospectus in accordance with Rule 424(b) of the
1933 Act by the close of business in New York on the business day immediately
succeeding the date of the Pricing Agreement. If the Company elects to rely on
Rule 434, the Company will provide the Underwriters with copies of the form of
434 Prospectus, in such number as the Underwriters may reasonably request, and
file or transmit for filing with the Commission the form of Prospectus complying
with Rule 434(c)(2) of the 1933 Act in accordance with Rule 424(b) of the 1933
Act by the close of business in New York on the business day immediately
succeeding the date of the Pricing Agreement.
(b) Filing of Amendments. The Company will give Merrill
Lynch notice of its intention to file or prepare any amendment to the
Registration Statement (including any post-effective amendment) or any
amendment or supplement to the Prospectus , whether pursuant to the 1933 Act,
the 1934 Act or otherwise, (including any revised prospectus which the Company
proposes for use by the Underwriters in connection with the offering of the
Securities which differs from the prospectus on file at the Commission at the
time the Registration Statement first becomes effective, whether or not such
revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933
Act Regulations or any abbreviated term sheet prepared in reliance on Rule 434
of the 1933 Act Regulations), will furnish the Underwriters with copies of any
such amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which Merrill Lynch or counsel for the
Underwriters shall not have consented (which consent shall not be unreasonably
withheld).
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Underwriters and counsel for the Underwriters,
without charge, signed copies of the
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<PAGE> 18
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts. If applicable, the
copies of the Registration Statement and each amendment thereto furnished to
the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has or will
deliver to each Underwriter, without charge, from time to time until the
effective date of the Registration Statement (or, if the Company has elected to
rely upon Rule 430A, until such time the Pricing Agreement is executed and
delivered), as many copies of each preliminary prospectus as such Underwriter
may reasonably request, and the Company hereby consents to the use of such
copies for purposes permitted by the 1933 Act. The Company will furnish to
each Underwriter, without charge, from time to time during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes contemplated by the 1933
Act or the 1934 Act or the respective applicable rules and regulations of the
Commission thereunder.
(e) Continued Compliance with Securities Laws. The
Company will comply with the 1933 Act and the 1933 Act Regulations and the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement, the
International Purchase Agreement and in the Prospectuses. If any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such ti me to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file
with the commission, subject to Section 3(b), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will endeavor,
in cooperation with the Underwriters, to qualify the Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions of the United States as the United States as the Underwriters may
designate and to maintain such qualifications in effect for a period of not
less than one year from the effective date of the Registration Statement;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. In
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<PAGE> 19
each jurisdiction in which the Securities have been so qualified, the Company
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any
Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net
proceeds received by it from the sale of the Securities in the manner specified
in the Prospectus under "Use of Proceeds".
(i) Restriction on Sale of Similar Securities. During a
period of 60 days from the date of the Pricing Agreement, the Company will
not, without Merrill Lynch's prior written consent (which will not be
unreasonably withheld), directly or indirectly, issue, sell, offer to sell,
grant any option for the sale of, or otherwise dispose of, any securities of
the Company that are substantially similar to the Securities (excluding any
bank indebtedness).
(j) Reporting Requirements. The Company, during the
period when the Prospectus, is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, the Pricing Agreement, any Agreement among
Underwriters, the Indenture and such other documents as may be reasonably
required in connection with the offering, purchase, sale and delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates
for the Securities to the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(g) hereof, including filing fees and the fee's and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey, any supplement thereto and any Legal
Investment Survey, (vi) the printing and delivery to the Underwriters of copies
of each preliminary prospectus and of the Prospectus and any amendments or
supplements thereto including the abbreviated term sheet delivered by the
Company pursuant to Rule 434 of the 1933 Act Regulations, (vii) the
preparation, printing and delivery to the Underwriters of copies of the Blue
Sky Survey, any supplement thereto and any Legal Investment Survey, (viii) the
filing fees incident to the review by
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<PAGE> 20
the National Association of Securities Dealers, Inc. (the "NASD") of the terms
of the sale of the Securities, (ix) the fees and expenses incurred in
connection with the listing of the Securities on the New York Stock Exchange,
(x) the fees and expenses of the Trustee, including the fees and disbursements
of counsel for the Trustee and (xi) any fees payable in connection with the
rating of the Securities.
(b) Termination of Agreement. If this Agreement is
terminated by the Underwriters in accordance with the provisions of Section 5
or Section 9(a)(i) hereof (unless such termination is the result of failure of
the conditions set forth in Section 5 and such failure is due to the failure or
default of the International Managers or the U.S. Equity Underwriters), the
Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
of the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company herein contained, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a) Effectiveness of Registration Statement. The
Registration Statement, including any Rule 462(b) Registration Statement, shall
have become effective not later than 5:30 P.M. on the date hereof, or with the
consent of the Underwriters, at a later time and date, not later, however, than
5:30 P.M. on the first business day following the date hereof, or at such later
time and date as may be approved by a majority in interest of the several
Underwriters; and at Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the Underwriters.
If the Company has elected to rely upon Rule 430A of the 1933 Act Regulations,
the price of and interest rate on the Securities and any price-related
information previously omitted from the effective Registration Statement
pursuant to such Rule 430A shall have been transmitted to the Commission for
filing in accordance with Rule 424(b) of the 1933 Act Regulations within the
prescribed time period and prior to Closing Time the Company shall have
provided evidence satisfactory to the Underwriters of such timely filing, or a
post-effective amendment providing such information shall have been promptly
filed and declared effective in accordance with the requirements of Rule 430A
of the 1933 Act Regulations.
(b) Opinion of Counsel for Company. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Thompson & Knight, P.C., counsel for the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters, to the
effect set forth in Exhibit B hereto and to such further effect as counsel to
the Underwriters may reasonably request.
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<PAGE> 21
(c) Opinion of Counsel for Underwriters. At Closing
Time, the Underwriters shall have received the favorable opinion, dated as of
Closing Time, of Andrews & Kurth L.L.P., counsel for the Underwriters with
respect to the matters set forth in clauses [(i), (ii), (v), (vi) (solely as to
preemptive or other similar rights arising by operation of law or under the
charter or by-laws of the Company), (viii) through (x), inclusive, (xii), (xiv)
(solely as to the information incorporated by reference in the Prospectus as
such information relates to the description of the Securities) and the
penultimate paragraph] of Exhibit B hereto. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal law of the United States
and the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Underwriters. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall
not have been, since the date hereof or since the respective dates as of which
information is given in the Prospectuses, any material adverse change in the
financial condition, or in the earnings, business affairs or properties, or
development involving a prospective material adverse change in the business
affairs, of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the Underwriters
shall have received a certificate of the President or a Vice President of the
Company and of the chief financial or chief accounting officer of the Company,
dated as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in Section
1(a) hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or, to the knowledge of
such officers, are contemplated by the Commission.
(e) Accountants' Comfort Letters. At the time of the
execution of this Agreement, the Underwriters shall have received from each of
Price Waterhouse LLP, Arthur Andersen LLP and KPMG Accountants N.V. letters
dated such date, in form and substance reasonably satisfactory to the
Underwriters, together with signed or reproduced copies of such letters for
each of the other Underwriters to the effect set forth in Exhibits C, D and E
hereto, respectively, and to such further effect as counsel to the Underwriters
may reasonably request.
(f) Bring-down Comfort Letters. At Closing Time, the
Underwriters shall have received from Price Waterhouse LLP, Arthur Andersen LLP
and KPMG Accountants N.V. letters, dated as of Closing Time, to the effect that
they reaffirm the statements made in their letters furnished pursuant to
subsection (e) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing Time.
(g) Approval of Listing. At Closing Time, the Securities
shall have been approved for listing on the New York Stock Exchange, subject
only to official notice of issuance.
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(h) No Objection. The NASD shall not have raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements. At Closing Time the Underwriters shall have received:
(i) Purchase of Initial Shares. Concurrently with the
purchase by the Underwriters of the Securities under this Agreement, (A) the
International Managers shall have purchased the Initial International
Securities under the International Purchase Agreement and (B) the U.S. Equity
Underwriters shall have purchased the Initial U.S. Shares under the U.S.
Purchase Agreement.
(j) Closing of Neddrill Acquisition. Concurrently with
the purchase by the Underwriters of the Securities, the Company shall have
consummated its acquisition of the Assets (as defined in the Neddrill
Agreement) without waiver or modification of any material condition to the
Company's obligations to consummate such acquisition under the Neddrill
Agreement except as such waivers and modifications were made at the preliminary
closing contemplated by Section 10.2(b) of the Neddrill Agreement.
(k) Ratings. At Closing Time, the Securities shall be
rated at least ___ by Moody's Investor's Service Inc. and ___ by Standard &
Poor's Corporation , and the Company shall have delivered to Merrill Lynch a
letter dated the Closing Time, from each such rating agency, or other evidence
satisfactory to Merrill Lynch, confirming that the Securities have such
ratings; and since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Securities of any of the Company's
other debt securities by any nationally recognized securities rating agency,
and no such securities rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating
of the Securities or any of the Company's other debt.
(l) Additional Documents. At Closing Time, counsel for
the Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
(m) Termination of Agreement. If any condition specified
in this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the Underwriters by notice to
the Company at any time at or prior to Closing Time or such Date of Delivery,
as the case may be, and such termination shall be without liability of any
party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
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SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant
to Rule 430A(b) or Rule 434 of the 1933 Act Regulations, if
applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any preliminary prospectus or prospectus, including the Prospectus (or
any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Merrill
Lynch), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that (x) the
Company is required to do so under Section 6(c) below and (y) any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), including the information deemed to be part of the Registration
Statement pursuant to Rule 430A(b) or Rule 434 of the 1933 Act Regulations, if
applicable, if applicable, or any preliminary prospectus or the Prospectuses
(or any amendment or supplement thereto); and provided, further, that this
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, liabilities, claims, damages or expenses purchased Securities, or any
person controlling such Underwriter, if a copy
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of the Prospectus (as then amended or supplemented if the Company shall have
furnished any such amendments or supplements thereto, but excluding documents
incorporated or deemed to be incorporated by reference therein) was not sent or
given by or on behalf of the Underwriter to such person if such is required by
law at or prior to the written confirmation of the sale of such Securities to
such person and if the Prospectus (as so amended or supplemented, but excluding
documents incorporated or deemed to be incorporated by reference therein) would
have corrected any untrue statement or omission, or alleged untrue statement or
omission, giving rise to such loss, liability, claim, damage or expense
(provided the Company has delivered the Prospectus to the several Underwriters
in requisite quantity on a timely basis to permit such delivery or sending), it
being understood that this proviso shall have no application if such untrue
statement or omission, or alleged untrue statement or omission, shall have been
corrected in a document which is incorporated or deemed to be incorporated by
reference in the Prospectus.
(b) Indemnification of Company, Directors and Officers.
Each Underwriter severally agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the information
deemed to be part of the Registration Statement pursuant to Rule 430A(b) or
Rule 434 of the 1933 Act Regulations, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectuses (or
any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by Merrill Lynch, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the
defense of any such action. If it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnifying parties
defendant in such action, except to the extent such indemnified parties retain
separate counsel ("Separate Counsel"), with respect to legal defenses available
to them that are different from or in addition to those available to such
indemnifying party or parties and such defenses are in conflict with the
interests of the indemnifying parties. If an indemnifying party
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assumes the defense of such action, the indemnifying parties shall not be
liable for any fees or expenses of counsel for the indemnified parties incurred
thereafter in connection with such action (other than those of Separate Counsel
engaged in accordance with the foregoing sentence). In no event shall the
indemnifying parties be liable for the reasonable fees and expenses of more
than the Separate Counsel (in addition to any local counsel) separate from
their own counsel for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse.
If at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel for which
such indemnifying party is otherwise entitled to reimbursement pursuant to the
terms of this Agreement, such indemnifying party agrees that it shall be liable
for any settlement of the nature contemplated by Section 6(a)(ii) effected
without its written consent if (i) such settlement is entered into more than 60
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for
any reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
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<PAGE> 26
The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters,
in each case as set forth on the cover of the Prospectus, or, if Rule 434 is
used, the corresponding location on the Term Sheet, bear to the aggregate
initial public offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls a Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial Shares set forth opposite
their respective names in Schedule A hereto and not joint.
22
<PAGE> 27
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of the Securities to
the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate
this Agreement, by notice to the Company, at any time at or prior to Closing
Time (i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the
Prospectuses, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or
economic conditions, in each case the effect of which is such as to make it, in
the judgment of the Underwriters, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or limited by the Commission or
the New York Stock Exchange, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the Nasdaq National Market has
been suspended or limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated
pursuant to this Section, such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof, and provided
further that Sections 1, 6, 7 and 8 shall survive such termination and remain
in full force and effect.
SECTION 10. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at Closing Time
to purchase the Securities which it or they are obligated to purchase under
this Agreement and the Pricing Agreement (the "Defaulted Securities"), the
Underwriters shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non- defaulting Underwriters, or any other
23
<PAGE> 28
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Underwriters shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed
10% of the aggregate principal amount of the Securities, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of
the aggregate principal amount of the Securities, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Underwriters or the Company shall
have the right to postpone Closing Time for a period not exceeding seven days
in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices.
All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to Merrill Lynch at North Tower, World Financial Center, New York, New
York 10281-1201, attention of Wood Steinberg, Vice President; and notices to
the Company shall be directed to it at 10370 Richmond Avenue, Suite 400,
Houston, Texas 77042, attention of James C. Day, Chairman of the Board,
President and Chief Executive Officer.
SECTION 12. Parties.
This Agreement shall each inure to the benefit of and be
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision
24
<PAGE> 29
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriters and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
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<PAGE> 30
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
NOBLE DRILLING CORPORATION
By
---------------------------------
Name:
------------------------------
Title:
-----------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON BROTHERS INC
SIMMONS & COMPANY INTERNATIONAL
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By_____________________________________
Authorized Signatory
26
<PAGE> 31
SCHEDULE A
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
NAME OF UNDERWRITER OF SECURITIES
------------------- -------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . .
Salomon Brothers Inc . . . . . . . . . . . . . . . . .
Simmons & Company International . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
27
<PAGE> 32
SCHEDULE B
SUBSIDIARIES OF NOBLE DRILLING CORPORATION
Triton Engineering Services Company, a Texas corporation
Noble Drilling (West Africa) Inc., a Delaware corporation
Noble Drilling (West Africa) Ltd., a Bermuda corporation
Noble Drilling International, Inc., a Delaware corporation
Noble Drilling (U.K.) Limited, a Scotland corporation
Noble Drilling (Canada) Ltd., an Alberta corporation
Noble Drilling Services Inc., a Delaware corporation
Noble Drilling International Limited, a Cayman Islands corporation
Noble Drilling de Venezuela C.A., a Venezuela corporation
Noble Offshore Corporation, a Delaware corporation
Noble Offshore Africa Inc., a Cayman Islands corporation
Noble Drilling (U.S.) Inc., a Delaware corporation
Noble Drilling (Mexico) Inc., a Delaware corporation
Noble Asset Company Limited, a Cayman Islands corporation
Noble Contracting Company Limited, a Cayman Islands corporation
Noble International Limited, a Cayman Islands corporation
Noble (Gulf of Mexico) Inc., a Delaware corporation
28
<PAGE> 33
EXHIBIT A
NOBLE DRILLING CORPORATION
( a Delaware corporation)
$125,000,000
__% Senior Notes due 2006
PRICING AGREEMENT
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Salomon Brothers Inc
Simmons & Company International
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Dear Sirs:
Reference is made to the Purchase Agreement dated June __,
1996 (the "Purchase Agreement") relating to the purchase by Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Salomon Brothers Inc,
Simmons & Company International are the underwriters (the "Underwriters"), of
the above shares of Common Stock (the "Securities"), of Noble Drilling
Corporation, a Delaware corporation (the "Company").
Pursuant to Section 2 of the Purchase Agreement, the Company
agrees with each Underwriter as follows:
1. The initial public offering price of the Securities
shall be __% of the principal amount thereof, plus accrued interest, if any,
from the date of issuance.
2. The purchase price to be paid by the Underwriters for
the Securities shall be __% of the principal amount thereof.
3. The interest rate on the Securities shall be __% per
annum.
29
<PAGE> 34
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
NOBLE DRILLING CORPORATION
By___________________________________
Name:________________________________
Title:_______________________________
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON BROTHERS INC
SIMMONS & COMPANY INTERNATIONAL
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By________________________________________
Authorized Signatory
30
<PAGE> 35
EXHIBIT B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(B)
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in
the Prospectuses and to enter into and perform its obligations under the
Purchase Agreement and the Neddrill Agreement.
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing under the laws of each
jurisdiction listed on an exhibit to such opinion.
(iv) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectuses in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the U.S. Purchase Agreement and the International Purchase
Agreement, the issuance of 5,000,000 shares of Common Stock as contemplated by
the Neddrill Agreement, or issuances pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant to the
exercise of convertible securities or options referred to in the Prospectus);
the shares of issued and outstanding capital stock have been duly authorized
and validly issued and are fully paid and non-assessable; and none of the
outstanding shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any securityholder of the Company.
(v) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization, execution and
delivery thereof by the Trustee) constitutes a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles.
(vi) The Securities are in the form contemplated by the
Indenture, have been duly authorized by the Company and, when executed by the
Company and authenticated by the Trustee in the manner provided in the
Indenture (assuming the due authorization, execution and delivery of the
Indenture by the Trustee) and delivered against payment of the purchase price
therefor specified in the Pricing Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other
31
<PAGE> 36
similar laws relating to or affecting creditor's rights generally or by general
equitable principles, and will be entitled to the benefits of the Indenture.
(vii) The Indenture has been qualified under the 1939 Act.
(viii) The Securities and the Indenture conform in all
material respect to the descriptions thereof contained in the Prospectus.
(ix) The courts of the State of Texas should give effect
to the agreement of the parties to the Indenture that such agreement be
governed by and construed in accordance with the laws of the State of New York
and should, in accordance with the principles of conflicts of laws applied by
the courts of the State of Texas, construe such agreement in accordance with
the laws of the State of New York.
(x) Each Subsidiary has been duly incorporated or
organized and is validly existing as a corporation or a limited liability
company in good standing under the laws of the jurisdiction of its
incorporation or organization, has corporate or limited liability company power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation or limited liability company to transact business and is in good
standing in each jurisdiction listed on an exhibit to such opinion; except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to the best of our
knowledge, except for directors' qualifying shares, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary.
(xi) This Agreement and the Indenture have been duly
authorized, executed and delivered by the Company.
(xii) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act; any
required filing of the Prospectuses pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b); and, to the best
of our knowledge, no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or overtly threatened by the Commission.
(xiii) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434 Information,
as applicable, the Prospectuses, excluding the documents incorporated by
reference therein, and each amendment or supplement to the Registration
Statement and the Prospectus, excluding the documents incorporated by reference
therein, as of their respective effective or issue dates (other than the
financial statements and related
32
<PAGE> 37
notes, the financial statement schedules and other financial data included or
incorporated by reference therein or omitted therefrom, and the Trustee's
Statement of Eligibility on Form T-1 ("Form T-1") as to which such counsel need
express no opinion) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
(xiv) The documents incorporated by reference in the
Prospectus (other than the financial statements and related notes, financial
statement schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which such counsel need express
no opinion) when they became effective or were filed with the Commission, as
the case may be, complied as to form in all material respects with the
requirements of the 1933 Act or the 1934 Act, as applicable, and the rules and
regulations of the Commission thereunder.
(xv) The form of certificate used to evidence the Common
Stock complies in all material respects with all applicable statutory
requirements, and any applicable requirements of the certificate of
incorporation and by- laws of the Company and the requirements of the New York
Stock Exchange.
(xvi) To the best of our knowledge, there is not pending or
overtly threatened any action, suit, proceeding, inquiry or investigation, to
which the Company or any of its subsidiaries is a party, or to which the
property of the Company or any of its subsidiaries is subject, before or
brought by any court or governmental agency or body, domestic or foreign,
required to be disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus or which might reasonably be expected to result in
a Material Adverse Effect, or which might reasonably be expected to materially
and aversely affect the properties or assets thereof or the consummation of
the transactions contemplated in this Agreement, the U.S. Purchase Agreement,
the International Purchase Agreement, the Neddrill Agreement or the performance
by the Company of its obligations thereunder.
(xvii) The statements made in the Prospectus under the
captions "Description of Senior Notes" and "The Acquisition" insofar as they
purport to describe the terms of the Senior Notes and the Neddrill Agreement,
respectively, and in the Registration Statement under Item 15, insofar as they
address matters of law, summaries of legal matters, the Company's certificate
of incorporation and bylaws or legal proceedings, or legal conclusions, fairly
present in all material respects the information called for with respect
thereto by the 1933 Act Regulations.
(xviii) The Neddrill Agreement has been duly authorized,
executed and delivered by the Company, all conditions to the obligations of
Nedlloyd and Neddrill Holding B.V. thereunder have been satisfied or waived,
and upon the closing of the transactions contemplated in the Neddrill Agreement
concurrently with the closing of transactions contemplated in this Agreement,
the International Purchase Agreement and the U.S. Purchase Agreement, the
Company and its subsidiaries will purchase the Assets (as defined in the
Neddrill Agreement) in accordance with the Neddrill Agreement; the 5,000,000
shares to be issued to Nedlloyd pursuant to the Neddrill Agreement have been
duly authorized and when issued and delivered by the Company against
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<PAGE> 38
payment of the consideration set forth in the Neddrill Agreement, will be
validly issued and fully paid and non-assessable.
(xix) To such counsel's knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto.
(xx) To such counsel's knowledge, neither the Company nor
any Subsidiary is in violation of its charter or by-laws and no default by the
Company or any Subsidiary exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement
or instrument that is described or referred to in the Registration Statement or
the Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement (except for any default which would not have a Material
Adverse Effect).
(xxi) No authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority
or agency, of the United States of America, the State of Texas or under the
Delaware General Corporation Law (or to the knowledge of such counsel, any
other jurisdiction) is necessary or required in connection with the due
authorization, execution and delivery of this Agreement, the U.S. Purchase
Agreement, the International Purchase Agreement and the Neddrill Agreement or
for the offering, issuance, sale or delivery of the Securities or the
consummation of the transactions under the Neddrill Agreement except, with
respect to the authorization, execution and delivery of this Agreement, the
U.S. Purchase Agreement and the International Purchase Agreement and issuance,
sale or delivery of the Securities or the Initial Shares, such as may be
required under the 1933 Act and the 1933 Act Regulations, foreign securities
laws or the securities laws of the various states.
(xxii) The execution, delivery, and performance of this
Agreement, the U.S. Purchase Agreement, the International Purchase Agreement,
the Neddrill Agreement and the consummation of the transactions contemplated in
the U.S. Purchase Agreement, the International Purchase Agreement, and the
Neddrill Agreement and in the Registration Statement (including the issuance
and sale of the Securities, the acquisition of assets pursuant to the Neddrill
Agreement, and the use of the proceeds from the sale of the Securities as
described in the Prospectuses under the caption "Use of Proceeds") and
compliance by the Company with its obligations under the U.S. Purchase
Agreement, the International Purchase Agreement and the Neddrill Agreement do
not and will not, whether with or without the giving of notice or lapse of time
or both, constitute a breach of, or default or Repayment Event (as defined in
Section 1(a)(xi) of this Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any Subsidiary pursuant to any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to us, to which the Company or any Subsidiary is a party or
by which it or any of them may be bound, or to which any of the property or
assets of the Company or any subsidiary is subject (except for such breaches or
34
<PAGE> 39
defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the certificate of incorporation or by-laws of the Company or any Subsidiary
organized under the laws of any jurisdiction within the United States of
America, or any applicable law, statute, rule, regulation, known to such
counsel, of the United States of America or the State of Texas or under the
Delaware General Corporation Law, or any administrative or court decree of any
government, government instrumentality or court, domestic or foreign, that
specifically names the Company or any Subsidiary or is directed to any of their
respective properties, assets or operations known to such counsel, other than
federal and state laws except as specifically addressed herein; provided that,
with respect to the foregoing opinion as to the charter of the Company, the
sale of Securities to persons who are not considered to be U.S. citizens for
purposes of the Shipping Act of 1916, as amended, shall not exceed in the
aggregate the Permitted Percentage (as defined in Article XI of the Company's
certificate of incorporation).
(xxiii) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined in
the 1940 Act.
(xxiv) The Rights under the Company's Shareholder Rights
Plan to which holders of the Securities will be entitled have been duly
authorized and validly issued.
In addition, such counsel has participated in conferences with
directors, officers and other representatives of the Company, representatives
of the independent public accountants for the Company, representatives of the
independent public accountants for Nedlloyd, representatives of the
Underwriters and counsel for the Underwriters, at which conferences the
contents of the Registration Statement and the Prospectus and related matters
were discussed, and, although we have not independently verified and are not
passing upon and assume no responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus (except to the extent specified elsewhere in such opinion or with
reference to such counsel). We advise you that, on the basis of the foregoing,
no facts have come to such counsel's attention that would lead us to believe
that the Registration Statement or any amendment thereto, including the Rule
430A Information and Rule 434 Information (if applicable), (except for
financial statements and related notes, the financial statement schedules and
other financial data included or incorporated by reference therein or omitted
therefrom and Form T-1, as to which we need make no statement), at the time
such Registration Statement or any such amendment became effective, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectuses or any amendment or supplement thereto
(except for financial statements and related notes and financial statement
schedules and other financial data included or incorporated by reference
therein or omitted therefrom, as to which we need make no statement), at the
time the Prospectus were issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary, in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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<PAGE> 40
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of the laws of Alberta, Bermuda, Cayman
Islands, Scotland and Venezuela, upon the respective opinions of MacKimmie,
Matthews; Conyers, Dill & Pearman; Maples and Calder; Paull & Williamsons; and
Baker & McKenzie; each special counsel to the Company (which opinions shall be
dated and furnished to the Underwriters at the Closing Time, shall be
reasonably satisfactory in form and substance to counsel for the Underwriters
and shall expressly state that the U.S. Underwriters may rely on such opinion
as if it were addressed to them), provided that Thompson & Knight, P.C. shall
state in their opinion that they believe that they and the Underwriters are
justified in relying upon such opinion, and (B), as to matters of fact (but not
as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. In rendering the
opinion set forth in paragraphs (v) and (vi) above, counsel may assume that the
laws of the State of Texas and the State of New York are the same. Such opinion
shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating
to legal opinions, including, without limitation, the Legal Opinion Accord of
the ABA Section of Business Law (1991).
36
<PAGE> 1
EXHIBIT 12.1
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
Amounts in thousands, except ratios
<TABLE>
<CAPTION>
Three Months Ended
March 31, Year Ended December 31,
------------------------- ---------------------------------------------------------
Pro Forma Pro Forma
1996 1996 1995 1995 1995 1994 1993 1992 1991
------- ------- ------- --------- --------- -------- ------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Earnings available for
fixed charges . . . . . . . . .
Income from continuing
operations . . . . . . . . $20,781 $12,229 $1,059 $10,448 $ 4,866 $27,195 $24,415 $(36,582) $(36,757)
Add:
Interest expense . . . . 6,065 3,176 3,024 23,691 12,156 12,351 8,038 13,274 20,411
----- ----- ----- ------- ------- ------- ------- ------ ------
Total . . . . . . . . . . $26,846 $15,405 $4,083 $34,139 $17,022 $39,546 $32,453 $(23,308) $(16,346)
======= ======= ====== ======= ======= ======= ======= ======== ========
Fixed Charges
Interest expense . . . . . . $ 6,065 $ 3,176 $ 3,024 $23,691 $12,156 $12,351 $ 8,038 $ 13,274 $ 20,411
------- ------- ------- ------- ------- ------- ------- -------- --------
Ratio of earnings to
fixed charges . . . . . . . . 4.43 4.85 1.35 1.44 1.40 3.20 4.04 N.M. N.M.
======= ======= ======= ======= ======= ======= ======= ======= =======
</TABLE>
COMBINATION OF RATIOS OF EBITDA TO INTEREST EXPENSE AND LONG-TERM DEBT TO EBITDA
<TABLE>
<CAPTION>
Three Months Ended
March 31, Year Ended December 31,
-------------------------- ------------------------------------------------------------
Pro Forma Pro Forma
1996 1996 1995 1995 1995 1994 1993 1992 1991
------- ------- ------ -------- ------- ------- ------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Operating income . . . $ 25,202 $ 14,097 $ 2,013 $ 29,112 $ 11,449 $ 18,163 $ 28,909 $(30,259) $(23,287)
Depreciation . . . . . 14,247 8,930 8,834 57,759 36,492 39,519 28,886 27,248 30,052
-------- -------- -------- -------- -------- -------- -------- -------- --------
EBITDA . . . . . . . . $ 39,449 $ 23,027 $ 10,847 $ 86,871 $ 47,941 $ 57,682 $ 57,795 $ (3,011) $ (6,765)
======== ======== ======== ======== ======== ======== ======== ======== ========
Interest expense . . . $ 6,065 $ 3,176 $ 3,024 $ 23,691 $ 12,156 $ 12,351 $ 8,038 $ 13,274 $ 20,411
-------- -------- -------- -------- -------- -------- -------- -------- --------
Ratio of EBITDA to
interest expense . . . 6.50x 7.25x 3.59x 3.67x 3.94x 4.67x 7.19x N.M. N.M.
======== ======== ======== ======== ======== ======== ======== ======== ========
Long-term debt . . . . $251,048 $126,048 $126,546 $254,923 $129,923 $126,546 $127,144 $ 87,280 $ 73,145
-------- -------- -------- -------- -------- -------- -------- -------- --------
Ratio of long-term
debt to EBITDA . . . . N.M. N.M. N.M. 2.93x 2.71x 2.19x 2.20x N.M. N.M.
========= ======== ======== ======== ======== ======== ======== ========= =========
</TABLE>
