<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 11, 1996
REGISTRATION NO. 333-6997
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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MARINE DRILLING COMPANIES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
TEXAS 74-2558926
(State of other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
ONE SUGAR CREEK CENTER BLVD., SUITE 600
SUGAR LAND, TEXAS 77478-3556
(713) 243-3000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
WILLIAM H. FLORES
ONE SUGAR CREEK CENTER BLVD., SUITE 600
SUGAR LAND, TEXAS 77478-3556
(713) 243-3000
(Name, address, including zip code, and telephone number including area code, of
agent for service)
Copies to:
<TABLE>
<S> <C>
SCOTT N. WULFE ARTHUR H. ROGERS
VINSON & ELKINS L.L.P. FULBRIGHT & JAWORSKI L.L.P.
2300 FIRST CITY TOWER 1301 MCKINNEY, SUITE 5100
HOUSTON, TEXAS 77002-6760 HOUSTON, TEXAS 77010-3095
(713) 758-2750 (713) 651-5421
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the 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. /X/
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. / /
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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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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* INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A *
* REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED *
* WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT *
* BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE *
* REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT *
* CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR *
* SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH *
* OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR *
* QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. *
********************************************************************************
SUBJECT TO COMPLETION, DATED JULY 11, 1996
PROSPECTUS
MARINE DRILLING COMPANIES, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
[MARINE DRILLING LOGO] WARRANTS
---------------------
Marine Drilling Companies, Inc. ("Marine" or the "Company") may offer and
sell from time to time, (i) unsecured debt securities, in one or more series,
consisting of notes, debentures or other evidences of indebtedness (the "Debt
Securities"), (ii) shares of preferred stock, par value $.01 per share of the
Company, in one or more series (the "Preferred Stock"), (iii) shares of common
stock of the Company, par value $.01 per share (the "Common Stock") and (iv)
warrants (the "Warrants") to purchase Common Stock. The Company may offer and
sell up to $150,000,000 aggregate public offering price of Debt Securities,
Preferred Stock, Common Stock and Warrants (collectively, the "Securities"). The
Securities may be offered in separate series in amounts, and prices, and on
terms to be determined at or prior to the time of sale.
The specific terms of the particular Securities to be issued will be set
forth in a supplement to this Prospectus (a "Prospectus Supplement"), which will
be delivered together with this Prospectus, including, where applicable, (i) in
the case of Debt Securities, the specific designation, aggregate principal
amount, ranking as senior or subordinated Debt Securities, maturity, rate or
rates (or method of determining the same) and time or times for the payment of
interest, if any, any exchangeability or conversion terms, any terms for
optional or mandatory redemption or repurchase, or payment of additional amounts
or any sinking fund provisions, the designation of the trustee acting under the
applicable indenture, and any other specific terms of such Debt Securities, (ii)
in the case of Preferred Stock, the specific designation, number of shares and
liquidation value thereof and the dividend, liquidation, redemption, voting and
other rights, including conversion or exchange rights, if any, and any other
special terms, (iii) in the case of Common Stock, the number of shares, and (iv)
in the case of Warrants, the number and terms thereof, the number of shares of
Common Stock issuable upon their exercise, the exercise price, the terms of the
offering and sale thereof and, where applicable, the duration and detachability
thereof. The Prospectus Supplement will also contain information regarding the
initial public offering price, the net proceeds to the Company and, where
applicable, the United States Federal income tax considerations relating to the
Securities covered by the Prospectus Supplement and a description of certain
factors that should be considered in connection with an investment in the
Securities covered by the Prospectus Supplement.
The Securities may be sold directly by the Company to investors, through
agents designated from time to time or to or through underwriters or dealers.
See "Plan of Distribution." If any agents of the Company or any underwriters are
involved in the sale of any Securities in respect of which the Prospectus is
being delivered, the names of such agents or underwriters and any applicable
commissions or discounts will be set forth in the Prospectus Supplement.
The Common Stock is listed on the Nasdaq Stock Market under the symbol
"MDCO." The Prospectus Supplement will contain information about any listing on
a securities exchange of the Securities covered by the Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
---------------------
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF THE SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
July , 1996
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational filing requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company may be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and the
Commission's Regional Offices located at Seven World Trade Center, New York, New
York 10048, and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material can be obtained by mail from the Public
Reference Branch of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. Such material may also be inspected at the offices
of the Nasdaq National Market, 1735 K Street, N.W., Washington, D.C. 20006. The
Commission maintains a World Wide Website on the Internet at http://www.sec.gov
that contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all the information
contained in the Registration Statement, certain portions of which are omitted
as permitted by the rules and regulations of the Commission. For further
information with respect to the Company and the securities offered hereby,
reference is made to the Registration Statement, including the exhibits thereto,
which may be inspected at the Commission's offices, without charge or copies of
which may be obtained from the Commission upon payment of prescribed fees.
Statements contained in this Prospectus as to the contents of any contract or
other document filed as an exhibit to the Registration Statement are not
necessarily complete, and in each instance reference is hereby made to the copy
of such contract or other document filed as an exhibit to the Registration
Statement, each such statement being qualified in all respects by such
reference.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File No.
0-18309) pursuant to the Exchange Act are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995.
2. The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 1996.
3. The Company's Reports on Form 8-K, dated March 18, 1996, April 26, 1996
and June 3, 1996.
4. The description of the Common Stock contained in the Registration
Statement on Form 8-B filed with the Commission on February 21, 1990, as
amended by Form 8 filed with the Commission on November 9, 1992, and any
subsequent amendment thereto filed for the purpose of updating such
description.
All other documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Securities pursuant hereto shall
be deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document all or a portion of which is incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified shall not be deemed to constitute a part of this Prospectus except as
so modified, and any statement so superseded shall not be deemed to constitute
part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of any such person, a copy of any or all of the
documents which are incorporated herein by reference, other than exhibits to
such documents (unless such
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<PAGE> 4
exhibits are specifically incorporated by reference into such documents).
Requests should be directed to the Company, One Sugar Creek Center Blvd., Suite
600, Sugar Land, Texas 77478-3556, Attention: Investor Relations (telephone:
713/243-3000).
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IN CONNECTION WITH AN OFFERING OF OFFERED SECURITIES, THE UNDERWRITERS, IF
ANY, FOR SUCH OFFERING MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR
MAINTAIN THE MARKET PRICES OF THE OFFERED SECURITIES AT LEVELS ABOVE THOSE WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY
BE DISCONTINUED AT ANY TIME.
THE COMPANY
The Company is engaged in the offshore contract drilling of oil and gas
wells, primarily in the U.S. Gulf of Mexico, for independent and major oil and
gas companies. As of the date of this Prospectus, the Company owns and operates
a fleet of 13 mobile offshore jack-up drilling rigs, consisting of four
independent leg units, three of which have a cantilever feature that allows the
extension of the drilling equipment over a platform, and nine mat supported
units, four of which have a cantilever feature. The Company's rigs are currently
capable of drilling to depths of 20,000 to 30,000 feet in maximum water depths
ranging from 200 feet to 300 feet.
The Company conducts substantially all of its operations through
wholly-owned subsidiaries. The principal subsidiaries are Marine Drilling
Management Company, which owns ten rigs, and Keyes Holding Corporation, which
owns the remaining three rigs.
The Company was incorporated in Texas in January, 1990 but, through its
predecessors, has been engaged in offshore contract drilling since 1966. The
Company's principal executive offices are located at One Sugar Creek Center
Boulevard, Suite 600, Sugar Land, Texas 77478-3556 and the Company's telephone
number is (713) 243-3000. The "Company" or "Marine" refers to Marine Drilling
Companies, Inc. and its consolidated subsidiaries, unless otherwise indicated or
the context otherwise suggests.
USE OF PROCEEDS
Unless otherwise provided in the Prospectus Supplement, the net proceeds
from the sale of the Securities offered by this Prospectus and the Prospectus
Supplement (the "Offered Securities") will be used for general corporate
purposes, which may include repayment of indebtedness, acquisitions, additions
to working capital, and capital expenditures. Until so utilized, it is expected
that such net proceeds will be invested in interest bearing time deposits or
short-term marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratio of earnings to fixed charges and
combined ratio of earnings to fixed charges and preferred stock dividend
requirements for the Company for the periods indicated:
<TABLE>
<CAPTION>
THREE
YEAR ENDED DECEMBER 31, MONTHS ENDED
----------------------------------------- MARCH 31,
1991 1992 1993 1994 1995 1996
---- ---- ---- ----- ---- -------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges......... -- -- 41.2 131.3 -- 16.7
Ratio of earnings to combined fixed charges
and preferred stock dividend
requirements............................. -- -- 41.2 131.3 -- 16.7
</TABLE>
3
<PAGE> 5
For purposes of computing the ratio of earnings to fixed charges: (i)
earnings consist of income before provision for income taxes plus fixed charges
as described below, excluding capitalized interest for the period and (ii) fixed
charges consist of interest expensed and capitalized, amortization of debt
discount and expense relating to indebtedness and the portion of rental expense
representative of the interest factor attributable to leases for rental
property. For purposes of computing the ratio of earnings to combined fixed
charges and preferred stock dividend requirements: (a) earnings consist of
income before provision for income taxes plus fixed charges and preferred stock
dividend requirements, excluding capitalized interest for the period and (b)
fixed charges and preferred stock dividend requirements consist of interest
expensed and capitalized, amortization of debt discount and expense relating to
indebtedness, the portion of rental expense representative of the interest
factor attributable to leases for rental property and preferred stock dividends.
Because of losses, fixed charges were not covered by $34,462,000,
$91,327,000 and $6,228,000 respectively, for December 31, 1991, 1992 and 1995.
As a result of a recapitalization effected in 1992, the Company eliminated
preferred stock obligations of approximately $64,000,000. There have been no
shares of Preferred Stock outstanding from the recapitalization to the date of
this Prospectus.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be unsecured senior or senior subordinated debt of
the Company and will be issued, in the case of Debt Securities that will be
senior debt ("Senior Debt Securities"), under a Senior Indenture (the "Senior
Debt Indenture") between the Company and Marine Midland Bank, as trustee, and,
in the case of Debt Securities that will be subordinated debt ("Subordinated
Debt Securities"), under a Senior Subordinated Indenture (the "Subordinated Debt
Indenture") between the Company and Bankers Trust Company, as trustee. The
Senior Debt Indenture and the Subordinated Debt Indenture are sometimes
hereinafter referred to individually as an "Indenture" and collectively as the
"Indentures." When used in this Prospectus, the term "Trustee" means, when used
with respect to the Senior Indenture, Marine Midland Bank and any successor
trustee under the Senior Debt Indenture and, when used with respect to the
Subordinated Debt Indenture, means Bankers Trust Company and any successor
thereto as trustee under the Subordinated Debt Indenture. The Indentures are
filed as exhibits to the Registration Statement of which this Prospectus is a
part. The following summaries of certain provisions of the Indentures and the
Debt Securities do not purport to be complete and such summaries are subject to
the detailed provisions of the applicable Indenture to which reference is hereby
made for a full description of such provisions, including the definition of
certain terms used herein. Section references in parentheses below are to
sections in both Indentures unless otherwise indicated. Wherever particular
sections or defined terms of the applicable Indenture are referred to, such
sections or defined terms are incorporated herein by reference as part of the
statement made, and the statement is qualified in its entirety by such
reference. The Indentures are substantially identical, except for provisions
relating to subordination.
PROVISIONS APPLICABLE TO BOTH SENIOR AND SUBORDINATED DEBT SECURITIES
General. The Debt Securities will be unsecured senior or subordinated
obligations of the Company and may be issued from time to time in one or more
series. Neither of the Indentures limits the amount of Debt Securities that may
be issued thereunder nor does either limit the aggregate indebtedness of the
Company, secured or unsecured, or any subsidiary thereof or, except to the
extent, if any, set forth in any Prospectus Supplement, limit the imposition of
liens on the Company's property, the payment of dividends or the acquisition of
stock of the Company. The Company currently conducts a substantial portion of
its operations through subsidiaries. Consequently, the rights of the Company to
receive assets of any subsidiary (and thus the ability of holders of Debt
Securities to benefit indirectly from such assets) are subject to the prior
claims of creditors of that subsidiary. Except to the extent set forth in any
Prospectus Supplement, the Indentures do not, and the Debt Securities will not,
contain any covenants or other provisions that are intended to afford holders of
the Debt Securities special protection in the event of either a change of
control of the Company or a highly leveraged transaction by the Company.
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<PAGE> 6
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Debt Securities offered by such Prospectus
Supplement ("Offered Debt Securities") to the extent such terms are applicable
to such Offered Debt Securities:
(i) the title of the Offered Debt Securities;
(ii) the classification as Senior Debt Securities or Subordinated Debt
Securities, aggregate principal amount, purchase price and denomination;
(iii) the date or dates on which the Offered Debt Securities will
mature;
(iv) the method by which amounts payable in respect of principal of,
and premium, if any, or interest, if any, on or upon the redemption of such
Offered Debt Securities may be calculated;
(v) the interest rate or rates (or the method by which such will be
determined), and the date or dates from which such interest, if any, will
accrue;
(vi) the date or dates on which such interest, if any, will be
payable;
(vii) the place or places where and the manner in which the principal
of, premium, if any, and interest, if any, on the Offered Debt Securities
will be payable and the place or places where the Offered Debt Securities
may be presented for transfer;
(viii) the right, if any, or obligation, if any, of the Company to
redeem, repay or purchase the Offered Debt Securities pursuant to any
sinking fund or analogous provisions or at the option of a holder thereof
and the period or periods within which, the price or prices (or the method
by which such price or prices will be determined, or both) at which, the
form or method of payment therefor if other than in cash and the terms and
conditions upon which the Offered Debt Securities will be redeemed, repaid
or purchased pursuant to any such obligation;
(ix) any provision relating to the issuance of the Offered Debt
Securities at an original issue discount;
(x) if the amounts of payments of principal of, premium, if any, and
interest on the Offered Debt Securities are to be determined with reference
to an index, the manner in which such amounts shall be determined;
(xi) the terms and conditions, if any, upon which the Offered Debt
Securities may be convertible into or exchanged for Common Stock or other
securities;
(xii) any applicable United States federal income tax consequences;
(xiii) any deletions from, modification of or additions to the Events
of Default or covenants of the Company with respect to such Offered Debt
Securities; and
(xiv) any other specific terms of the Offered Debt Securities.
Unless otherwise specified in any Prospectus Supplement, the Debt
Securities will be issuable in registered form and in denominations of $1,000
and any integral multiple thereof (Section 2.7). No service charge will be made
for any transfer or exchange of any Debt Securities but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith (Section 2.8).
Debt Securities may bear interest at a fixed rate or a floating rate. Debt
Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate may be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par that are treated as having been issued at a
discount for United States federal income tax purposes will be described in the
applicable Prospectus Supplement.
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<PAGE> 7
In determining whether the holders of the requisite aggregate principal
amount of outstanding Debt Securities of any series have given any request,
demand, authorization, direction, notice, consent or waiver under the
Indentures, the principal amount of any series of Debt Securities originally
issued at a discount from their stated principal amount that will be deemed to
be outstanding for such purposes will be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof.
Conversion or Exchange Rights. The Prospectus Supplement for any Offered
Debt Securities offered thereby will state the terms, if any, on which shares of
such Offered Debt Securities are convertible into, or exchangeable for,
securities of the Company or another person.
Global Securities. The Debt Securities of a series may be issued in whole
or in part in the form of one or more global securities ("Global Securities")
that will be deposited with, or on behalf of, a depositary (the "Depositary")
identified in the Prospectus Supplement relating to such series. Global
Securities may be issued only in fully registered form and in either temporary
or permanent form. Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a Global Security (i) may not be
transferred except as a whole and (ii) may only be transferred (a) by the
Depositary for such Global Security to its nominee, (b) by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or (c) by
such Depositary or any such nominee to a successor Depositary or nominee of such
successor Depositary (Section 2.8).
The specific terms of the depositary arrangement with respect to a series
of Debt Securities will be described in the Prospectus Supplement relating to
such series. The Company anticipates that the following provisions will
generally apply to depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit, on its book-entry registration and transfer
system, the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depositary. Such accounts shall be designated by the dealers,
underwriters or agents with respect to such Debt Securities or by the Company if
such Debt Securities are offered and sold directly by the Company. Ownership of
beneficial interests in a Global Security will be limited to persons that have
accounts with the applicable Depositary ("participants") or persons that may
hold interests through participants. Ownership of beneficial interests in such
Global Security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the applicable Depositary or its
nominee (with respect to interests of participants) and the records of
participants (with respect to interests of persons other than participants). The
laws of some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security or its nominee is the
registered owner of such Global Security, such Depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the Debt Securities
of the series represented by such Global Security for all purposes under the
Indenture governing such Debt Securities. Except as provided below, owners of
beneficial interests in a Global Security will not be entitled to have any of
the individual Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of any such Debt Securities in definitive form and will not be
considered the owners or holders thereof under the Indenture governing such Debt
Securities.
Payment of principal of, and premium, if any, and interest, if any, on,
individual Debt Securities represented by a Global Security registered in the
name of a Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Debt Securities. The Company expects that the Depositary for a
series of Debt Securities or its nominee, upon receipt of any payment of
principal of, and premium, if any, and interest, if any, in respect of a Global
Security representing any such Debt Securities, immediately will credit
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global Security
for such Debt Securities as shown on the records of such Depositary or its
nominee. The Company
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<PAGE> 8
also expects that payments by participants to owners of beneficial interests in
such Global Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name."
Such payments will be the responsibility of such participants. Neither the
Company, the Trustee for such Debt Securities, any paying agent nor the
registrar for such Debt Securities will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of the Global Security for such Debt Securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
If the Depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is not
appointed by the Company within 90 days, the Company will issue individual Debt
Securities of such series in exchange for the Global Security representing such
series of Debt Securities. In addition, the Company may at any time and in its
sole discretion, subject to any limitations described in the Prospectus
Supplement relating to such Debt Securities, determine not to have any Debt
Securities of a series represented by one or more Global Securities and, in such
event, will issue individual Debt Securities of such series in exchange for the
Global Security or Securities representing such series of Debt Securities.
Further, if the Company so specifies with respect to the Debt Securities of a
series, an owner of a beneficial interest in a Global Security representing Debt
Securities of such series may, on terms acceptable to the Company, the Trustee
and the Depositary for such Global Security, receive individual Debt Securities
of such series in exchange for such beneficial interests, subject to any
limitations described in the Prospectus Supplement relating to such Debt
Securities. In any such instance, an owner of a beneficial interest in a Global
Security will be entitled to physical delivery of individual Debt Securities of
the series represented by such Global Security equal in principal amount to such
beneficial interest and to have such Debt Securities registered in its name.
Individual Debt Securities of such series so issued will be issued in registered
form and in denominations, unless otherwise specified by the Company, of $1,000
and integral multiples thereof.
Merger and Consolidation. Unless additional limitations are described in a
Prospectus Supplement with respect to a series of Debt Securities, the Company
may consolidate or merge with or into any other corporation or entity, and the
Company may sell, lease or convey all or substantially all of its assets to
another corporation or entity, provided that (a)(i) in the case of a merger, the
Company is the surviving company in the merger, or (ii) the entity surviving the
merger, formed by such consolidation or which acquires such assets shall be an
entity organized and existing under the laws of the United States of America or
a state thereof and shall expressly assume payment of the principal of and any
premium and interest on the Debt Securities and the performance and observance
of all of the covenants and conditions of the Indentures to be performed or
observed by the Company and (b) the Company or such successor entity, as the
case may be, shall not immediately thereafter be in default in the performance
of any such covenant or condition. (Section 9.1).
Events of Default. Unless otherwise specified in the Prospectus Supplement,
an Event of Default is defined under each Indenture with respect to the Debt
Securities of any series issued under such Indenture as being: (i) default in
the payment of any installment of interest upon any of the Debt Securities of
such series when due, continued for 30 days; (ii) default in the payment of
principal of or premium, if any, with respect to Debt Securities of such series
when due; (iii) default in the payment or satisfaction of any sinking fund or
other purchase obligation with respect to Debt Securities of such series when
due; (iv) default in the performance of any other covenant of the Company
applicable to Debt Securities of such series, continued for 60 days after
written notice to the Company by the Trustee or to the Company and the Trustee
by the holders of at least 25% in aggregate principal amount of the Debt
Securities of such series then outstanding; (v) certain events of bankruptcy,
insolvency or reorganization; (vi) default under any bond, debenture, note or
other evidence of indebtedness for money borrowed by the Company or under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed of the
Company resulting in the acceleration of such indebtedness, or any default in
payment of such indebtedness (after expiration of any applicable grace periods
and presentation of any debt instruments, if required), if the aggregate amount
of all such indebtedness that has been so accelerated and with respect to which
there has been such a default in payment shall exceed $5,000,000 and there shall
have been a failure to obtain rescission or annulment of all such accelerations
or to discharge all such defaulted
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Indebtedness within 10 days after written notice of the type specified in the
foregoing clause (iv); and (vii) any other Event of Default provided with
respect to the Debt Securities of such series (Section 5.1).
If any Event of Default with respect to any Debt Securities of any series
shall occur and be continuing, the Trustee or the holders of not less than 25%
in aggregate principal amount of the Debt Securities of such series then
outstanding, by notice in writing to the Company (and to the Trustee, if given
by the holders), may declare the principal (or, in the case of any series of
Debt Securities originally issued at a discount from their stated principal
amount, such portion of the principal amount as may be specified in the terms of
such series) of all of the Debt Securities of such series and the interest, if
any, accrued thereon to be due and payable immediately, but the holders of a
majority in aggregate principal amount of the Debt Securities of such series
then outstanding, by notice in writing to the Company and the Trustee, may
rescind and annul such declaration and its consequences if all defaults under
such Indenture are cured or waived (Section 5.1).
Each Indenture provides that no holder of any series of Debt Securities
then outstanding may institute any suit, action or proceeding with respect to,
or otherwise attempt to enforce, such Indenture, unless (i) such holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, (ii) the holders of not less than 25% in aggregate
principal amount of such series of Debt Securities then outstanding shall have
made written request to the Trustee to institute such suit, action or proceeding
and shall have offered to the Trustee such reasonable indemnity as it may
require with respect thereto and (iii) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding; provided that, subject to the
subordination provisions applicable to the Subordinated Debt Securities, the
right of any holder of any Debt Security to receive payment of the principal of,
premium, if any, or interest, if any, on such Debt Security, on or after the
respective due dates, or to institute suit for the enforcement of any such
payment shall not be impaired or affected without the consent of such holder
(Section 5.4). The holders of a majority in aggregate principal amount of the
Debt Securities of such series then outstanding may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of such series, provided that the Trustee may decline to follow such
direction if the Trustee determines that such action or proceeding is unlawful
or would involve the Trustee in personal liability (Section 5.7).
The Company is required to furnish to the Trustee annually a certificate as
to the compliance by the Company with all conditions and covenants under each
Indenture (Section 4.3).
Discharge and Defeasance. Unless otherwise specified in the applicable
Prospectus Supplement, the Company can discharge or defease its obligations with
respect to each series of Debt Securities as set forth below (Article Ten).
The Company may discharge all of its obligations (except those set forth
below) to holders of any series of Debt Securities issued under either Indenture
that have not already been delivered to the Trustee for cancellation and that
have either become due and payable or are by their terms due and payable within
one year (or scheduled for redemption within one year) by irrevocably depositing
with the Trustee cash or U.S. Government Obligations (as defined in such
Indenture), or a combination thereof, as trust funds in an amount certified to
be sufficient to pay when due the principal of and interest, if any, on all
outstanding Debt Securities of such series and to make any mandatory sinking
fund payments thereon when due.
Unless otherwise provided in the applicable Prospectus Supplement, the
Company may also discharge at any time all of its obligations (except those set
forth below) to holders of any series of Debt Securities issued under either
Indenture ("defeasance") if, among other things: (i) the Company irrevocably
deposits with the Trustee cash or U.S. Government Obligations, or a combination
thereof, as trust funds in an amount certified to be sufficient to pay when due
the principal of and interest, if any, on all outstanding Debt Securities of
such series and to make any mandatory sinking fund payments thereon when due and
such funds have been so deposited for 91 days; (ii) such deposit will not result
in a breach or violation of, or cause a default under, any agreement or
instrument to which the Company is a party or by which it is bound involving
payment by the Company or a subsidiary of the Company of more than $1,000,000;
(iii) no Event of Default shall have occurred and be continuing on the date of
such deposit, (iv) no Event of Default resulting from certain events
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of bankruptcy, insolvency or reorganization shall have occurred during the
period ending on the 91st day after the date of such deposit; and (v) the
Company delivers to the Trustee an opinion of counsel to the effect that the
holders of such series of Debt Securities will not recognize income, gain or
loss for United States federal income tax purposes as a result of such deposit
and defeasance and that defeasance will not otherwise alter the United States
federal income tax treatment of such holders' principal and interest payments on
such series of Debt Securities. Such opinion must be based on a ruling of the
Internal Revenue Service or a change in United States federal income tax law
occurring after the date of the Indenture relating to the Debt Securities of
such series, since such a result would not occur under current tax law. In the
event of any such defeasance and discharge of Debt Securities of such series,
holders of such Debt Securities would be entitled to look only to such trust
fund for payment of principal of and premium, if any, and interest, if any, on
their Debt Securities. (Section 10.1)
Additionally, if provided in the applicable Prospectus Supplement, the
Company may omit to comply with any condition or covenant specified in the
applicable Prospectus Supplement if, among other things: (i) the Company
irrevocably deposits with the Trustee cash or U.S. Government Obligations, or a
combination thereof, in an amount sufficient to pay the principal of, and
premium, if any, and interest, if any, on all Outstanding Debt Securities,
including any sinking fund obligations, of such series when due; and (ii) the
Company delivers to the Trustee an opinion of counsel to the effect that the
holders of such series of Debt Securities will not recognize income, gain or
loss for United States federal income tax purposes as a result of such deposit
and defeasance and that such deposit and defeasance will not otherwise alter the
United States federal income tax treatment of such holders' principal and
interest payments on such series of Debt Securities
Notwithstanding the foregoing, no discharge or defeasance described above
shall affect the following obligations to or rights of the holders of any series
of Debt Securities: (i) rights of registration of transfer and exchange of Debt
Securities of such series, (ii) rights of substitution of mutilated, defaced,
destroyed, lost or stolen Debt Securities of such series, (iii) rights of
holders of Debt Securities of such series to receive payments of principal
thereof and premium, if any, and interest, if any, thereon, upon the original
due dates therefor (but not upon acceleration), and to receive mandatory sinking
fund payments thereon when due, if any, (iv) rights, obligations, duties and
immunities of the Trustee, (v) rights of holders of Debt Securities of such
series as beneficiaries with respect to property so deposited with the Trustee
payable to all or any of them and (vi) obligations of the Company to maintain an
office or agency in respect of Debt Securities of such series (Section 10.1).
Modification of the Indenture. Each Indenture provides that the Company and
the Trustee may enter into supplemental indentures without the consent of the
holders of the Debt Securities (i) to secure any series of Securities, (ii) to
evidence the assumption by a successor entity of the obligations of the Company
under such Indenture, (iii) to add covenants or new events of default for the
protection of the holders of such Debt Securities or a series thereof, (iv) to
establish the form and terms of Debt Securities of any series, (v) to modify the
provisions relating to global Debt Securities, or to permit the issuance of Debt
Securities in uncertificated form, provided any such action does not adversely
affect the interests of the Holders of the Debt Securities of any series in any
material respect, (vi) to add to, change or eliminate any provision of the
Indentures, provided that such amendment shall become effective only if there is
no Outstanding Debt Security of any series then entitled to the benefit of such
provision or such amendment does not apply to any then Outstanding Debt
Security, (vii) to evidence and provide for the acceptance of appointment by a
successor Trustee with respect to the Debt Securities of one or more series and
to add to or change any of the provisions as shall be necessary to provide for
or facilitate the administration of the trusts under the Indentures by more than
one Trustee, (viii) in the case of the Subordinated Debt Indenture, to limit or
terminate the benefits to the holders of Senior Indebtedness of the
subordination provisions contained in the Subordinated Debt Indenture, or (ix)
to cure any ambiguity, defect or inconsistency in the Indentures or to make any
other provisions with respect to matters or questions arising under the
Indentures, provided such action does not adversely affect the interests of the
holders of the Debt Securities of any series (Section 8.1).
Each Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of Debt Securities of each series then
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<PAGE> 11
outstanding and affected, to add any provisions to, or change in any manner or
eliminate any of the provisions of, such Indenture or of any supplemental
indenture or modify in any manner the rights of the holders of the Debt
Securities of such series; provided that the Company and the Trustee may not,
without the consent of the holder of each outstanding Debt Security affected
thereby, (i) extend the stated final maturity of any Debt Security, reduce the
principal amount thereof, reduce the rate or extend the time of payment of
interest, if any, thereon, reduce or alter the method of computation of any
amount payable on redemption, repayment or purchase by the Company, change the
coin or currency in which principal, premium, if any, and interest, if any, are
payable, reduce the amount of the principal of any original issue discount
security payable upon acceleration or provable in bankruptcy, impair or affect
the right to institute suit for the enforcement of any payment or repayment
thereof or, if applicable, adversely affect any right of prepayment at the
option of the holder or (ii) reduce the aforesaid percentage in aggregate
principal amount of Debt Securities of any series issued under such Indenture,
the consent of the holders of which is required for any such modification
(Section 8.2).
The Subordinated Debt Indenture may not be amended to alter the
subordination of any outstanding Subordinated Debt Securities without the
written consent of each holder of Senior Indebtedness then outstanding that
would be adversely affected thereby (Section 8.6 of the Subordinated Debt
Indenture).
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
Subordination. The Subordinated Debt Securities will be subordinate and
junior in right of payment, to the extent set forth in the Subordinated Debt
Indenture, to all Senior Indebtedness of the Company. Senior Indebtedness is
defined in the Subordinated Debt Indenture as the principal of, and premium, if
any, and interest on, and any other payment due pursuant to, any of the
following, whether outstanding at the date of execution of the Subordinated Debt
Indenture or thereafter incurred, created or assumed:
(a) all obligations of the Company for money borrowed;
(b) all obligations of the Company evidenced by notes, debentures,
bonds or other securities, including obligations incurred, created or
assumed in connection with the acquisition of property, assets or
businesses;
(c) all obligations of the Company or a subsidiary of the Company
pursuant to the Loan Agreement, dated as of December 1, 1994, among the
Company, Keyes Holding Corporation, and CIT Group/Equipment Financing, Inc.
and the related guaranty, in each case as amended and as amended from time
to time;
(d) all capitalized lease obligations of the Company;
(e) all reimbursement obligations of the Company with respect to
letters of credit, bankers acceptance or similar facilities issued for the
account of the Company;
(f) all obligations of the Company issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business);
(g) all payment obligations of the Company under any interest rate,
currency or commodity swap agreement, option agreement, hedge agreement,
forward contract, or similar agreement designed to protect the Company or
another person against fluctuations in interest rates, exchange rates or
commodity prices;
(h) all obligations of the type referred to in clauses (a) through (g)
above, of another person and all dividends of another person, the payment
of which, in either case, the Company has assumed or guaranteed, or for
which the Company is responsible or liable, directly or indirectly, jointly
or severally, as obligor, guarantor or otherwise; and
(i) all amendments, modifications, renewals, extensions, refinancings,
replacements and refundings by the Company of any such indebtedness
referred to in clauses (a) through (h) above (and of any such
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amended, modified, renewed, extended, refinanced, refunded or replaced
indebtedness or obligations); other than (i) any indebtedness, renewal,
extension, refinancing, replacement, refunding, assumption, guarantee or
other obligation that expressly provides, or in the instrument creating or
evidencing the same or the assumption or guarantee of the same it is
expressly provided, that such indebtedness, renewal, extension,
refinancing, replacement, refunding, assumption, guarantee or other
obligation is junior in right of payment to or is pari passu with the
Subordinated Debt Securities or is subordinate in right of payment to all
other indebtedness of the Company not expressly subordinated to such
indebtedness or obligation; and (ii) any indebtedness or obligation of the
Company in respect of the Subordinated Debt Securities (Section 1.1 of the
Subordinated Debt Indenture).
If (i) the Company should default in the payment of any principal of,
premium, if any, or interest, if any, on any Senior Indebtedness when the same
becomes due and payable, whether at maturity or at a date fixed for prepayment
or by declaration of acceleration or otherwise or (ii) any other default with
respect to Senior Indebtedness shall occur and the maturity of such Senior
Indebtedness has been accelerated in accordance with its terms, then, upon
written notice of such default to the Company by the holders of such Senior
Indebtedness or any trustee therefor, unless and until such default shall have
been cured or waived or shall have ceased to exist or such acceleration shall
have been rescinded, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) will be made or agreed to be made for
principal of, premium, if any, or interest, if any, on any of the Subordinated
Debt Securities, or in respect of any redemption, retirement, purchase or other
acquisition of the Subordinated Debt Securities other than those made in capital
stock of the Company (or cash in lieu of fractional shares thereof) (Section
12.1(b) of the Subordinated Debt Indenture).
If any default (other than a default described in the preceding paragraph)
under the Senior Indebtedness, pursuant to which the maturity thereof may be
accelerated immediately or the expiration of any applicable grace periods occurs
(a "Senior Nonmonetary Default"), then, upon the receipt by the Company and the
Trustee under the Subordinated Debt Indenture of written notice thereof (a
"Payment Notice") from or on behalf of holders of such Senior Indebtedness
specifying an election to prohibit such payment and other action by the Company
in accordance with the following provisions of this paragraph, the Company may
not make any payment or take any other action that would be prohibited by the
immediately preceding paragraph during the period (the "Payment Blockage
Period") commencing on the date of receipt of such Payment Notice and ending on
the earlier of (i) the date, if any, on which the holders of such Senior
Indebtedness or their representative notify the Trustee that such Senior
Nonmonetary Default is cured or waived or ceases to exist or the Senior
Indebtedness to which such Senior Nonmonetary Default relates is discharged or
(ii) the 179th day after the date of receipt of such Payment Notice.
Notwithstanding the provisions described in the immediately preceding sentence,
the Company may resume payments on the Subordinated Debt Securities after such
Payment Blockage Period (Section 12.1(c) of the Subordinated Debt Indenture).
If (i)(a) without the consent of the Company, a receiver, conservator,
liquidator or trustee of the Company or of any of its property is appointed by
the order or decree of any court or agency or supervisory authority having
jurisdiction, and such decree or order remains in effect for more than 60 days
or (b) the Company is adjudicated bankrupt or insolvent or (c) any of its
property is sequestered by court order and such order remains in effect for more
than 60 days or a petition is filed against the Company under any state or
federal bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution, liquidation or receivership law of any jurisdiction whether
now or hereafter in effect, and is not dismissed within 60 days after such
filing; or (ii) the Company (a) commences a voluntary case or other proceeding
seeking liquidation, reorganization, arrangement, insolvency, readjustment of
debt, dissolution, liquidation or other relief with respect to itself or its
debt or other liabilities under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or (b) consents to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or (c) fails generally to, or cannot, pay its
debts generally as they become due or (d) takes any corporate action to
authorize or effect any of the foregoing; or (iii) any subsidiary of the Company
takes, suffers or permits to exist any of the events or conditions referred to
in the foregoing clause
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(i) or (ii), then all Senior Indebtedness (including any interest thereon
accruing after the commencement of any such proceedings) will first be paid in
full before any payment or distribution, whether in cash, securities or other
property, is made to any holder of Subordinated Debt Securities on account of
the principal of, premium, if any, or interest, if any, on such Subordinated
Debt Securities. Any payment or distribution, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in the subordination provisions
with respect to the indebtedness evidenced by the Subordinated Debt Securities,
to the payment of all Senior Indebtedness then outstanding and to any securities
issued in respect thereof under any such plan of reorganization or readjustment)
that would otherwise (but for the subordination provisions) be payable or
deliverable in respect of the Subordinated Debt Securities of any series will be
paid or delivered directly to the holders of Senior Indebtedness in accordance
with the priorities then existing among such holders until all Senior
Indebtedness (including any interest thereon accruing after the commencement of
any such proceedings) has been paid in full. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior
Indebtedness, the holders of Subordinated Debt Securities, together with the
holders of any obligations of the Company ranking on a parity with the
Subordinated Debt Securities, will be entitled to be repaid from the remaining
assets of the Company the amounts at that time due and owing on account of
unpaid principal of, premium, if any, or interest, if any, on the Subordinated
Debt Securities and such other obligations before any payment or other
distribution, whether in cash, property or otherwise, shall be made on account
of any capital stock or obligations of the Company ranking junior to the
Subordinated Debt Securities and such other obligations (Section 12.1(d) of the
Subordinated Debt Indenture).
If any payment or distribution of any character, whether in cash,
securities or other property (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided in the subordination
provisions with respect to the Subordinated Debt Securities, to the payment of
all Senior Indebtedness then outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), shall be
received by the Trustee or any holder of any Subordinated Debt Securities in
contravention of any of the terms of the Subordinated Debt Indenture, such
payment or distribution of securities will be received in trust for the benefit
of, and will be paid over or delivered and transferred to, the holders of the
Senior Indebtedness then outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all such Senior
Indebtedness in full (Section 12.1(e) of the Subordinated Debt Indenture).
By reason of such subordination, in the event of the insolvency of the
Company, holders of Senior Indebtedness may receive more, ratably, than holders
of the Subordinated Debt Securities. Such subordination will not prevent the
occurrence of any Event of Default (as defined in the Indentures) or limit the
right of acceleration in respect of the Subordinated Debt Securities, but the
payment of any amount due upon such acceleration shall be limited in accordance
with the foregoing provisions. Payment from money or the proceeds of U.S.
Government Obligations deposited to defease the Subordinated Debt Indenture
shall not be subordinated to the prior payment of any Senior Indebtedness
(Section 12.11 of the Subordinated Debt Indenture).
CONCERNING THE TRUSTEES
The Company, its officers and directors, and certain of its or their
affiliates may maintain banking, borrowing, consulting and other relations with
Bankers Trust Company, Marine Midland Bank and certain of their respective
affiliates.
The Indentures provide that an alternative Trustee may be appointed by the
Company with respect to any particular series of Debt Securities. Any such
appointment will be described in the Prospectus Supplement relating to such
series of Debt Securities.
The Trustee under an Indenture, prior to default, undertakes to perform
only such duties as are specifically set forth in the Indenture and, after
default, is required to exercise the same degree of care as a
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prudent individual would exercise in the conduct of his or her own affairs
(Section 6.1). Subject to such provision, the Trustee under an Indenture is
under no obligation to exercise any of the powers vested in it by an Indenture
at the request of any holder of Debt Securities, unless offered reasonable
indemnity by such holder against the costs, expenses and liabilities which might
be incurred thereby. The Trustee under an Indenture is not required to expend or
risk its own funds or otherwise incur personal financial liability in the
performance of its duties if the Trustee reasonably believes that repayment or
adequate indemnity is not reasonably assured to it. Each Indenture contains
other provisions limiting the responsibilities and liabilities of the Trustee
thereunder.
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
The Company's authorized capital stock consists of 200,000,000 shares of
Common Stock, par value $.01 per share, and 20,000,000 shares of Preferred
Stock, par value $.01 per share, each of which is described below. The summary
description of the capital stock of the Company contained herein is necessarily
general and reference should be made in each case to the Company's Restated
Articles of Incorporation and Bylaws, which are exhibits to the Registration
Statement of which this Prospectus is a part.
COMMON STOCK
Each share of Common Stock is subject to all rights, privileges,
preferences and priorities of any class of preferred stock of the Company. Each
share of Common Stock has an equal and ratable right to receive dividends as and
when declared by the Board of Directors out of any funds of the corporation
legally available for the payment thereof. The Company currently has no
intention to pay dividends on the shares of Common Stock in the foreseeable
future.
In the event of a liquidation, dissolution or winding up of the Company,
the holders of Common Stock are entitled to share equally and ratably in the
assets available for distribution after payment of all liabilities, including
any liquidation preferences payable to the holders of Preferred Stock that may
at the time be outstanding.
Each share of Common Stock is entitled to one vote in the election of
directors and on all other matters submitted to a vote of shareholders. Holders
of Common Stock have no right to cumulate their vote in the election of
directors.
American Stock Transfer & Trust Company, 40 Wall Street, New York, New York
10005, acts as the transfer agent and registrar of the Common Stock.
PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which an
applicable Prospectus Supplement may relate. Certain other terms of any series
of Preferred Stock offered by an applicable Prospectus Supplement will be
specified in such Prospectus Supplement. If so specified in the applicable
Prospectus Supplement, the terms of any series of Preferred Stock may differ
from the terms set forth below. The description of the terms of the Preferred
Stock set forth below and in an applicable Prospectus Supplement does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Statement of Resolution relating to the applicable series of
Preferred Stock, which will be filed as an exhibit to, or incorporated by
reference in, the Registration Statement of which this Prospectus forms a part.
General. The Preferred Stock may be divided into and issued in one or more
series, each series to be so designated as to distinguish the shares thereof
from the shares of all other series and classes. The Board of Directors is
vested with the authority to establish and designate such series from time to
time, and within the limitations prescribed by law or set forth in the Company's
Restated Articles of Incorporation, to fix and determine the number,
preferences, limitations and relative rights, including voting rights, of the
authorized shares within each such series; provided, however, that the Board of
Directors may not decrease the number of
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shares within a series below the number of shares within such series that is
then issued. The Board of Directors shall exercise such authority by the
adoption of a resolution or resolutions as prescribed by law.
The terms of any series of Preferred Stock may be amended without the
consent of the holders of any other series of Preferred Stock or of any class of
junior stock, provided such amendment does not adversely affect the holders of
such other series of Preferred Stock or class of junior stock. Shares of any
class of Preferred Stock which have been issued and reacquired in any manner and
are not held as treasury shares, including shares redeemed by purchase (whether
through the operation of a retirement or sinking fund or otherwise), will have
the status of authorized and unissued Preferred Stock and may be reissued as a
part of the series of which they were originally a part or may be reclassified
into and reissued as part of a new series.
No shares of Preferred Stock are, as of the date of this Prospectus,
issued, outstanding or designated as to series. It is not possible to state the
actual effect of the authorization and issuance of a new series of Preferred
Stock upon the rights of holders of the Common Stock and other series of
Preferred Stock unless and until the Board of Directors determines the
attributes of such new series of Preferred Stock and the specific rights of its
holders. Such effects might include, however, (i) restrictions on dividends on
Common Stock and other series of Preferred Stock if dividends on such new series
of Preferred Stock have not been paid; (ii) dilution of the voting power of
Common Stock and other series of Preferred Stock to the extent that such new
series of Preferred Stock has voting rights, or to the extent that any such new
series of Preferred Stock is convertible into Common Stock; (iii) dilution of
the equity interest of Common Stock and other series of Preferred Stock; and
(iv) limitation on the right of holders of Common Stock and other series of
Preferred Stock to share in the Company's assets upon liquidation until
satisfaction of any liquidation preference attributable to such new series of
Preferred Stock. While the ability of the Company to issue Preferred Stock
provides flexibility in connection with possible acquisitions and other
corporate purposes, its issuance could be used to impede an attempt by a third
party to acquire a majority of the outstanding voting stock of the Company.
The Preferred Stock will have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise provided in the Prospectus
Supplement relating to a particular series of the Preferred Stock. Reference is
made to the Prospectus Supplement relating to the particular series of the
Preferred Stock offered thereby for specific terms, including: (i) the
designation of such Preferred Stock, the number of shares offered and the
liquidation value thereof; (ii) the price at which such Preferred Stock will be
issued; (iii) the dividend rate (or method of calculation), the dates on which
dividends shall be payable, whether such dividends shall be cumulative or
noncumulative and, if cumulative, the dates from which dividends shall commence
to accumulate; (iv) the liquidation preference thereof; (v) any redemption or
sinking fund provisions; (vi) any conversion or exchange provisions of such
Preferred Stock; and (vii) any additional dividend, liquidation, redemption,
sinking fund and other rights, preferences, limitations and restrictions of such
Preferred Stock.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a particular
series of the Preferred Stock, each series of the Preferred Stock will rank on a
parity as to dividends and distributions in the event of a liquidation with each
other series of the Preferred Stock, if any. Holders of Preferred Stock will
have no preemptive rights to subscribe for or purchase shares of capital stock.
Dividend Rights. Holders of the Preferred Stock of each series will be
entitled to receive, when, as and if declared by the Board of Directors, out of
assets of the Company legally available therefor, cash dividends at such rates
and on such dates as are set forth in the Prospectus Supplement relating to such
series of the Preferred Stock. Such rate may be fixed or variable or both. Each
such dividend will be payable to the holders of record as they appear on the
stock books of the Company on such record dates as will be fixed by the Board of
Directors or a duly authorized committee thereof. Dividends on any series of the
Preferred Stock may be cumulative or noncumulative, as provided in the
Prospectus Supplement relating thereto. If the Board of Directors fails to
declare a dividend payable on a dividend payment date on any series of Preferred
Stock for which dividends are noncumulative, then the right to receive a
dividend in respect of the dividend period ending on such dividend payment date
will be lost, and the Company shall have no obligation to pay the dividend
accrued for that period, whether or not dividends are declared for any future
period.
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Unless otherwise indicated in an applicable Prospectus Supplement, all
series of Preferred Stock will be senior in right as to dividends and in
liquidation to the Common Stock and any other class of stock of the Company
ranking junior to the Preferred Stock.
Rights Upon Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the holders of each
series of Preferred Stock will be entitled to receive out of assets of the
Company available for distribution to stockholders, before any distribution of
assets is made to holders of Common Stock or any other class of stock ranking
junior to such series of the Preferred Stock upon liquidation, liquidating
distributions in the amount set forth in the Prospectus Supplement relating to
such series of the Preferred Stock plus an amount equal to accrued and unpaid
dividends for the then-current dividend period and, if such series of the
Preferred Stock is cumulative, for all dividend periods prior thereto. If, upon
any voluntary or involuntary liquidation, dissolution or winding up of the
Company, the amounts payable with respect to the Preferred Stock of any series
and any other shares of stock of the Company ranking as to any such distribution
on a parity with such series of the Preferred Stock are not paid in full, the
holders of the Preferred Stock of such series and of such other shares will
share ratably in any such distribution of assets of the Company in proportion to
the full respective preferential amounts to which they are entitled. After
payment of the full amount of the liquidating distribution to which they are
entitled, the holders of such series of Preferred Stock will have no right or
claim to any of the remaining assets of the Company. Neither the sale of all or
substantially all the property or business of the Company nor the merger or
consolidation of the Company into or with any other corporation shall be deemed
to be a dissolution, liquidation or winding up, voluntary or involuntary, of the
Company.
Redemption. A series of the Preferred Stock may be redeemable, in whole or
in part, at the option of the Company, and may be subject to mandatory
redemption pursuant to a sinking fund, in each case upon terms, at the times and
at the redemption prices set forth in the Prospectus Supplement relating to such
series.
The Prospectus Supplement relating to a series of Preferred Stock that is
subject to mandatory redemption will specify the number of shares of such series
of Preferred Stock that will be redeemed by the Company in each year commencing
after a date to be specified, at a redemption price per share to be specified,
together with an amount equal to any accrued and unpaid dividends thereon to the
date of redemption. The redemption price may be payable in cash, capital stock
or in cash received from the net proceeds of the issuance of capital stock of
the Company, as specified in the Prospectus Supplement relating to such series
of Preferred Stock.
If fewer than all the outstanding shares of any series of the Preferred
Stock are to be redeemed, whether by mandatory or optional redemption, the
selection of the shares to be redeemed will be determined by lot or pro rata as
may be determined by the Board of Directors or a duly authorized committee
thereof, or by any other method which may be determined by the Board of
Directors or such committee to be equitable. From and after the date of
redemption (unless default shall be made by the Company in providing for the
payment of the redemption price), dividends shall cease to accrue on the shares
of Preferred Stock called for redemption and all rights of the holders thereof
(except the right to receive the redemption price) shall cease.
In the event that full dividends, including accumulations in the case of
cumulative Preferred Stock, on any series of the Preferred Stock have not been
paid, such series of the Preferred Stock may not be redeemed in part and the
Company may not purchase or acquire any shares of such series of the Preferred
Stock otherwise than pursuant to a purchase or exchange offer made on the same
terms to all holders of such series of the Preferred Stock.
Conversion or Exchange Rights. The Prospectus Supplement for any series of
the Preferred Stock will state the terms, if any, on which shares of such series
are convertible into, or exchangeable for, securities of the Company or another
person.
Voting Rights. Unless otherwise determined by the Board of Directors and
indicated in the Prospectus Supplement relating to a particular series of
Preferred Stock, the holders of the Preferred Stock will not be entitled to
vote, except as expressly required by applicable law. In the event the Company
issues share of any series of Preferred Stock with voting rights, including any
voting rights in the case of dividend arrearages,
15
<PAGE> 17
unless otherwise specified in the Prospectus Supplement relating to a particular
series of Preferred Stock, each such share will be entitled to one vote on
matters on which holders of such series of the Preferred Stock are entitled to
vote. In the case of any series of Preferred Stock having one vote per share on
matters on which holders of such series are entitled to vote, the voting power
of such series, on matters on which holders of such series and holders of other
series of preferred stock are entitled to vote as a single class, will depend on
the number of shares in such series, not on the aggregate liquidation preference
or initial offering price of the shares of such series of Preferred Stock.
Conditions and Restrictions Upon the Company. The Prospectus Supplement
relating to a series of the Preferred Stock will describe any conditions or
restrictions upon the Company which are for the benefit of such series,
including restrictions upon the creation of debt or other series of Preferred
Stock; payment of dividends; or distributions, acquisitions or redemptions of
shares ranking junior to such series.
VOTING
The Company's Restated Articles of Incorporation provide that (a) action
may be taken without a meeting, without prior notice, and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall have
been signed by the holder or holders of shares having not less than the minimum
number of votes that would be necessary to take such action at a meeting of the
shareholders, and (b) the vote required to approve a merger, share exchange,
certain sales of assets, charter amendment or dissolution involving the Company
shall be a majority of each outstanding class of capital stock entitled to vote
thereon.
NO PREEMPTIVE RIGHTS
No holder of shares of the Company, including shares of Common Stock or
Preferred Stock, shall have any preemptive right or other right to purchase or
subscribe for or receive any shares of any class, or series thereof, of stock of
the Company, whether now or hereafter authorized, or any warrants, options,
bonds, debentures or other securities convertible into, exchangeable for or
carrying any right to purchase any shares of any class, or series thereof, of
stock.
FOREIGN OWNERSHIP
The Restated Articles of Incorporation of the Company contain provisions
limiting foreign ownership of the capital stock of the Company. These provisions
were originally intended to, among other things, protect the Company's ability
to be deemed a United States citizen under Section 2 ("U.S. citizen") of the
Shipping Act, 1916, as amended (the "Shipping Act") which allowed the Company to
avail itself of certain types of U.S. government guaranteed financings
previously available only for U.S. flag vessels owned by U.S. citizens. Although
being a U.S. citizen is not currently necessary to obtain such financings, the
ability to be a U.S. citizen may be beneficial in the future should the Company
desire to obtain certain types of U.S. flag vessels. One of the conditions that
must be satisfied in order that a corporation may be deemed to be a U.S. citizen
is that a controlling interest therein is owned by citizens of the United
States. Thus, a transfer of Common Stock which would result in more than 50% of
the outstanding Common Stock being held by non-U.S. citizens would cause the
Company to then be ineligible to be a U.S. citizen. Under the provisions of the
Company's Restated Articles of Incorporation, (i) shares of any class of capital
stock of the Company are not issuable to and are not registrable upon transfer
in the name of any person who cannot demonstrate to the satisfaction of the
Company that such person is a U.S. citizen and is not holding such shares for
the account of any non-U.S. citizen, if as a result of such issuance or
registration of transfer the percentage of such class owned by non-U.S. citizens
would exceed a fixed percentage (the "Permitted Percentage"), which is equal to
2% less than the percentage that would prevent the Company from being a U.S.
citizen (currently 50%, thus resulting in a Permitted Percentage of 48%), and
any such transfer shall be void and ineffective as against the Company, and (ii)
if at any time non-U.S. ownership of any such class (either record or
beneficial) exceeds the Permitted Percentage, the Company may withhold payment
of dividends on such shares deemed to be in excess of the Permitted Percentage
and may suspend the voting rights of such shares.
16
<PAGE> 18
In addition to the foregoing, Section 9 of the Shipping Act provides that a
controlling interest in the Company may not be acquired by a non-U.S. citizen
without the consent of the U.S. Secretary of Transportation, acting through the
United States Maritime Administration ("MARAD"). Notwithstanding the provisions
of Section 9, current MARAD regulations authorize the transfer of a controlling
interest in a company as long as the United States is not at war, the transferee
is not a national of a country to which the transfer would be contrary to the
foreign policy of the United States and the Company's U.S. flag vessels remain
documented under the U.S. flag after the transfer. In the absence of MARAD
consent (either by the current regulations or otherwise) the transfer of a
controlling interest in the Company to non-U.S. citizens would enable MARAD to
exercise various remedies under the Shipping Act including seizure of vessels,
civil penalties and, in certain cases, criminal penalties.
Certificates representing the capital stock of the Company bear legends
concerning the restrictions on non-U.S. ownership. In addition, the Board of
Directors is authorized to adopt a bylaw provision for the establishment of a
dual stock certificate systems under which different forms of certificates may
be used to indicate whether or not the owner thereof is a U.S. citizen. To date,
the Board of Directors has not deemed it necessary to adopt such a system.
The restrictions imposed by the Company's Restated Articles of
Incorporation may at times preclude U.S. citizens from transferring their shares
of Common Stock to non-U.S. citizens. This may restrict the available market for
resales of shares of Common Stock and for the issuance of shares by the Company.
DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of Common Stock. Warrants
may be issued independently or together with Debt Securities, Preferred Stock or
Common Stock offered by any Prospectus Supplement and may be attached to or
separate from any such offered Securities. Each series of Warrants will be
issued under a separate warrant agreement (a "Warrant Agreement") to be entered
into between the Company and a bank or trust company, as warrant agent (the
"Warrant Agent"), all as set forth in the Prospectus Supplement relating to the
particular issue of Warrants. The Warrant Agent will act solely as an agent of
the Company in connection with the Warrants and will not assume any obligation
or relationship of agency or trust for or with any holders of Warrants or
beneficial owners of Warrants. The following summary of certain provisions of
the Warrants does not purport to be complete and is subject to, and is qualified
in its entirety by reference to, all provisions of the Warrant Agreements.
Reference is made to the Prospectus Supplement relating to the particular
issue of Warrants offered thereby for the terms of such Warrants, including,
where applicable: (i) the number of shares of Common Stock purchasable upon the
exercise of Warrants and the price at which such number of shares of Common
Stock may be purchased upon such exercise; (ii) the date on which the right to
exercise such Warrants shall commence and the date on which such right shall
expire (the "Expiration Date"); (iii) United States Federal income tax
consequences applicable to such Warrants; and (iv) any other terms of such
Warrants. Warrants will be offered and exercisable for U.S. dollars only.
Warrants will be issued in registered form only. The exercise price for Warrants
will be subject to adjustment in accordance with the applicable Prospectus
Supplement.
Each Warrant will entitle the holder thereof to purchase such number of
shares of Common Stock at such exercise price as shall in each case be set forth
in, or calculable from, the Prospectus Supplement relating to the Warrants,
which exercise price may be subject to adjustment upon the occurrence of certain
events as set forth in such Prospectus Supplement. After the close of business
on the Expiration Date (or such later date to which such Expiration Date may be
extended by the Company), unexercised Warrants will become void. The place or
places where, and the manner in which, Warrants may be exercised shall be
specified in the Prospectus Supplement relating to such Warrants.
Prior to the exercise of any Warrants, holders of such Warrants will not
have any of the rights of holders of Common Stock purchasable upon such
exercise, including the right to receive payments of dividends, if any, on the
Common Stock purchasable upon such exercise, or to exercise any applicable right
to vote.
17
<PAGE> 19
PLAN OF DISTRIBUTION
GENERAL
The Company may sell Securities to or through underwriters or dealers, and
also may sell Securities directly to one or more other purchasers or through
agents. The Prospectus Supplement sets forth the names of any underwriters or
agents involved in the sale of the Offered Securities and any applicable
commissions or discounts.
Underwriters, dealers or agents may offer and sell the Offered Securities
at a fixed price or prices, which may be changed, or from time to time at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. In connection with the sale of the
Securities, underwriters or agents may be deemed to have received compensation
from the Company in the form of underwriting discounts or commissions and may
also receive commissions from purchasers of the Securities for whom they may act
as agent. Underwriters or agents may sell the Securities to or through dealers,
and such dealers may receive compensation in the form of discounts, concessions
or commissions from the underwriters or commissions from the purchasers for whom
they may act as agent.
The Securities (other than the Common Stock), when first issued, will have
no established trading market. Any underwriters or agents to or through whom
Securities are sold by the Company for public offering and sale may make a
market in such Securities, but such underwriters or agents will not be obligated
to do so and may discontinue any market making at any time without notice. No
assurance can be given as to the liquidity of the trading market for any such
Securities.
Any underwriters, dealers or agents participating in the distribution of
the Securities may be deemed to be underwriters, and any discounts and
commissions received by them and any profit realized by them on resale of the
Securities may be deemed to be underwriting discounts and commissions under the
Securities Act of 1933, as amended (the "1933 Act"). Underwriters, dealers or
agents may be entitled, under agreements entered into with the Company, to
indemnification against or contribution toward certain civil liabilities,
including liabilities under the 1933 Act.
LEGAL MATTERS
Unless otherwise specified in a Prospectus Supplement relating to
particular Securities, certain legal matters with respect to the validity of the
Securities will be passed upon for the Company by Vinson & Elkins L.L.P.,
Houston, Texas, and for the underwriters, dealers or agents, if any, of a
particular issue of Securities, by Fulbright & Jaworski L.L.P., Houston, Texas.
18
<PAGE> 20
EXPERTS
The financial statements of the Company as of December 31, 1995 and 1994,
and for each of the years in the three-year period ended December 31, 1995, have
been incorporated by reference herein and in the Registration Statement in
reliance upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of such
firm as experts in accounting and auditing.
With respect to the unaudited interim financial information for the periods
ended March 31, 1996 and 1995, incorporated by reference herein, the independent
certified public accountants have reported that they applied limited procedures
in accordance with professional standards for a review of such information.
However, their separate reports included in the Company's quarterly reports on
Form 10-Q for the quarter ended March 31, 1996, and included and/or incorporated
herein, state that they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their reports on such
information should be restricted in light of the limited nature of the review
procedures applied. The accountants are not subject to the liability provisions
of Section 11 of the Securities Act for their report on the unaudited interim
financial information because that report is not a "report" or a "part" of the
registration statement prepared or certified by the accountants within the
meaning of Sections 7 and 11 of the Securities Act.
19
<PAGE> 21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with
the distribution of the securities covered by this Registration Statement. All
of the expenses will be borne by the Company except as otherwise indicated.
<TABLE>
<S> <C>
Registration fee under the Securities Act................................. $ 51,725
Printing and engraving expenses........................................... 75,000
Blue Sky filing fees and expenses......................................... 15,000
Legal and accounting fees................................................. 100,000
Trustee, transfer agent and registrar fees................................ 10,000
Miscellaneous............................................................. 23,275
-------
Total........................................................... $275,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 2.02-1 of the Texas Business Corporation Act provides that any
director or officer of a Texas corporation may be indemnified against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by him
in connection with or in defending any action, suit or proceeding in which he is
a party by reason of his position. A director or officer may be indemnified only
if it is determined that the person (a) conducted himself in good faith; (b)
reasonably believed (i) in the case of conduct in his official capacity, that
his conduct was in the corporation's best interests; and (ii) in all other
cases, that his conduct was at least not opposed to the corporation's best
interests; and (c) in the case of any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful. If a director or officer is wholly
successful, on the merits or otherwise, in connection with such a proceeding,
such indemnification is mandatory.
The Company's Restated Articles of Incorporation contain provisions
eliminating or limiting liabilities of directors for breaches of their duty of
care. The Company's Bylaws provide for indemnification of officers and directors
of the Company and persons serving at the request of the Company in such
capacities for other business organizations against certain losses, costs,
liabilities and expenses incurred by reason of their positions with the Company
or such other business organizations. The Company also has policies insuring its
officers and directors against certain liabilities for actions taken in such
capacities, including liabilities under the Securities Act.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
1.1** -- Form of Underwriting Agreement (Debt Securities)
1.2** -- Form of Underwriting Agreement (Common Stock, Preferred Stock and/or
Warrants)
4.1 -- Restated Articles of Incorporation of Marine Drilling Companies, Inc.
(Incorporated by reference to Exhibit 28.17 to the Current Report on
Form 8-K of the Registrant dated October 30, 1992.)
4.2 -- Amended and Restated Bylaws of Marine Drilling Companies, Inc.
(Incorporated by reference to Exhibit 28.18 to the Current Report on
Form 8-K of the Registrant dated October 30, 1992.)
4.3* -- Form of Senior Indenture between the Company and Marine Midland Bank,
as Trustee.
4.4* -- Form of Senior Subordinated Indenture between the Company and Bankers
Trust Company, as Trustee.
</TABLE>
II-1
<PAGE> 22
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- -------------------- ------------
<S> <C>
4.5** -- Form of Debt Securities.
4.6** -- Form of Warrants
5.1* -- Opinion of Vinson & Elkins L.L.P. as to the legality of the
securities being registered.
12.1*** -- Computation of Ratio of Earnings to Fixed Charges.
15.1* -- Letter regarding unaudited interim financial information.
23.1* -- Consent of KPMG Peat Marwick LLP
23.2* -- Consent of Vinson & Elkins L.L.P. (see Exhibit 5.1).
24.1* -- Powers of attorney.
25.1* -- Form T-1 Statement of Eligibility of Marine Midland Bank, as Trustee
under the Senior Indenture.
25.2* -- Form T-1 Statement of Eligibility of Bankers Trust Company, as
Trustee under the Subordinated Indenture.
99.1 -- Loan Agreement, dated as of December 1, 1994, among the CIT
Group/Equipment Financing, Inc., the Company and Keyes Holding
Corporation. (Incorporated by reference to Exhibit 10.23 to the
Annual Report on Form 10-K of the Company for the fiscal year ended
December 31, 1994.)
99.2 -- Guaranty, dated as of December 1, 1994, of the Company for the
benefit of the CIT Group/Equipment Financing, Inc. (Incorporated by
reference to Exhibit 10.23 to the Annual Report on Form 10-K of the
Company for the fiscal year ended December 31, 1994.)
99.3 -- Amendment No. 1 dated as of May 31, 1996 to the Loan Agreement among
Keyes Holding Corporation, as Borrower, Marine Drilling Companies,
Inc., as Guarantor, and The CIT Group/Equipment Financing, Inc.
(Incorporated by reference to Exhibit 99.12 to the Current Report on
Form 8-K of the Company dated June 3, 1996.)
99.4 -- Amendment No. 1 dated as of May 31, 1996 to the Guaranty made by
Marine Drilling Companies, Inc. in favor of The CIT Group/Equipment
Financing, Inc. (Incorporated by reference to Exhibit 99.13 to the
Current Report on Form 8-K of the Company dated June 3, 1996.)
</TABLE>
- ---------------
* Previously filed.
** To be filed as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
*** Filed herewith.
ITEM 17. UNDERTAKINGS
The registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
II-2
<PAGE> 23
provided, however, that the undertakings set forth in clauses (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those clauses is contained in periodic reports
filed with or furnished to the Securities and Exchange Commission by the
Company pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Company's annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(5) That for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of a registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrants pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed
to be part of this registration statement as of the time it was declared
effective.
(6) That, for 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrants pursuant to the provisions set forth in Item 15, 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.
II-3
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Marine Drilling
Companies, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Sugar Land, State of
Texas, on July 10, 1996.
MARINE DRILLING COMPANIES, INC.
By: /s/ WILLIAM H. FLORES
-----------------------------
William H. Flores
Chief Operating Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities on July 10, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ WILLIAM H. FLORES Senior Vice President,
- --------------------------------------------- Chief Operating Officer, Chief
William H. Flores Financial Officer and Director
(Principal Executive Officer and
Principal Financial Officer)
/s/ JOAN R. SMITH Vice President, Controller
- --------------------------------------------- and Secretary
Joan R. Smith (Principal Accounting Officer)
ROBERT L. BARBANELL* Chairman of the Board
- --------------------------------------------- and Director
Robert L. Barbanell
DAVID A.B. BROWN* Director
- ---------------------------------------------
David A.B. Brown
HOWARD I. BULL* Director
- ---------------------------------------------
Howard I. Bull
NATHANIEL A. GREGORY* Director
- ---------------------------------------------
Nathaniel A. Gregory
CHRISTOPHER M. LINNEMAN* Director
- ---------------------------------------------
Christopher M. Linneman
/s/ JAN RASK Director
- ---------------------------------------------
Jan Rask
*By: /s/ WILLIAM H. FLORES
------------------------------------------
(William H. Flores)
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 25
INDEX TO EXHIBITS
12.1 -- Computation of Ratio of Earnings to Fixed Charges
<PAGE> 1
EXHIBIT 12.1
MARINE DRILLING COMPANIES, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND
THE RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
Three
Years Ended December 31, Months Ended
------------------------------------------------------------------------- ------------
1991 1992 1993 1994 1995 31-Mar-96
--------- ---------- --------- -------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income (loss) before income $ (34,462) $ (91,327) $ 23,301 $ 9,123 $ (6,102) $ 3,669
taxes and extraordinary items
Adjustments:
Fixed charges, as below 14,340 9,727 580 70 1,032 232
Interest capitalized - - - - (126) (38)
--------- ---------- --------- -------- --------- ---------
Earnings (losses) as adjusted $ (20,122) $ (81,600) $ 23,881 $ 9,193 $ (5,196) $ 3,863
========= ========== ========= ======== ========= =========
Fixed charges:
Interest on indebtedness,
expensed or capitalized $ 14,340 $ 9,727 $ 580 $ 70 $ 961 $ 219
Amortization of debt discount
and expense - - - - 51 13
--------- ---------- --------- -------- --------- ---------
Total fixed charges 14,340 9,727 580 70 1,032 232
--------- ---------- --------- -------- --------- ---------
Preferred dividend requirements,
adjusted to a pre-tax basis 7,937 6,681 - - - -
--------- ---------- --------- -------- --------- ---------
Combined fixed charges and
preferred dividend requirements $ 22,277 $ 16,408 $ 580 $ 70 $ 1,032 $ 232
========= ========== ========= ======== ========= =========
Ratio of earnings to fixed charges - - 41.2 131.3 - 16.7
========= ========== ========= ======== ========= =========
Ratio of earnings to fixed charges
and preferred stock dividends - - 41.2 131.3 - 16.7
========= ========== ========= ======== ========= =========
Amount by which earnings did not
cover fixed charges $ 34,462 $ 91,327 $ - $ - $ 6,228 $ -
========= ========== ========= ======== ========= =========
</TABLE>
