<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
POST-EFFECTIVE AMENDMENT NO. 1
to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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DIAMOND OFFSHORE DRILLING, INC.
(Exact Name of Registrant as Specified in Its Charter)
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<S> <C> <C>
DELAWARE 1381 76-0321760
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Organization) Classification Code Number) Identification Number)
DIAMOND OFFSHORE DRILLING, INC. RICHARD L. LIONBERGER, ESQ.
15415 KATY FREEWAY VICE PRESIDENT, GENERAL COUNSEL AND COPY TO:
HOUSTON, TEXAS 77094 SECRETARY JAMES L. RICE III, ESQ.
(281) 492-5300 15415 KATY FREEWAY WEIL, GOTSHAL & MANGES LLP
(Address, Including Zip Code, and Telephone HOUSTON, TEXAS 77094 700 LOUISIANA, SUITE 1600
Number, (281) 492-5300 HOUSTON, TEXAS 77002
Including Area Code, of Registrant's (Name, Address, Including Zip Code (713) 546-5000
Principal Executive Offices) and Telephone Number, Including
Area Code, of Agent For Service)
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.
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.
CALCULATION OF REGISTRATION FEE
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<CAPTION>
===================================================================================================================================
Proposed maximum Amount of
Title of each class of Amount to be offering price per Proposed maximum registration
securities to be registered registered (1) (2) unit aggregate offering price (2) fee
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Debt Securities(3)...........................
Warrants to Purchase Debt Securities.........
Preferred Stock, par value $.01 per share
(4).......................................... $600,000,000 (2) $600,000,000 $181,818.18(6)
Warrants to Purchase Preferred Stock.........
Common Stock, par value $.01 per share (5)...
===================================================================================================================================
</TABLE>
(1) In United States dollars or the equivalent thereof in foreign currency or
currency units.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, as amended. The
aggregate public offering price of the Debt Securities, Warrants to
purchase Debt Securities, Preferred Stock, Warrants to purchase Preferred
Stock and Common Stock registered hereby will not exceed $600,000,000. No
separate consideration will be received for Common Stock, Preferred Stock
or Debt Securities that are issued upon conversion or exchange of
Preferred Stock or Debt Securities.
(3) Such indeterminate amount of Debt Securities as may from time to time be
issued at indeterminate prices or issuable upon conversion or exchange of
Debt Securities or Preferred Stock, to the extent such Debt Securities or
Preferred Stock are, by their terms, convertible into or exchangeable for
Debt Securities, or upon the exercise of Warrants to purchase Debt
Securities.
(4) Such indeterminate number of shares of Preferred Stock as may from time to
time be issued at indeterminate prices or issuable upon conversion or
exchange of Debt Securities or Preferred Stock, to the extent such Debt
Securities or Preferred Stock are, by their terms, convertible into or
exchangeable for shares of Preferred Stock, or upon the exercise of
Warrants to purchase Preferred Stock.
(5) Such indeterminate number of shares of Common Stock as may from time to
time be issued at indeterminate prices or issuable upon conversion or
exchange of Debt Securities or Preferred Stock, to the extent such Debt
Securities or Preferred Stock are, by their terms, convertible into or
exchangeable for shares of Common Stock.
(6) The registration fee was previously paid in full. No additional fee is
required.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, 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
post-effective amendment to this registration statement relating to these
securities has been filed with the Securities and Exchange Commission. No
additional securities may be sold after the date hereof nor may offers to buy be
accepted prior to the time such post-effective amendment 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.
[LOGO]
SUBJECT TO COMPLETION, DATED MARCH 28, 1997
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$600,000,000
DEBT SECURITIES PREFERRED STOCK COMMON STOCK SECURITIES WARRANTS
-----------------------------
Diamond Offshore Drilling, Inc., a Delaware corporation (the "Company"),
may issue from time to time, together or separately, (1) its debt securities
(the "Debt Securities"), which may be either senior ("Senior Securities") or
subordinated ("Subordinated Securities") and which may be convertible into or
exchangeable for shares of common stock, par value $0.01 per share, of the
Company (the "Common Stock"), shares of preferred stock, par value $0.01 per
share, of the Company (the "Preferred Stock"), or other Debt Securities; (2)
warrants to purchase Debt Securities (the "Debt Warrants"); (3) Preferred Stock,
which may be convertible into or exchangeable for shares of Common Stock or
shares of Preferred Stock or Debt Securities; (4) warrants to purchase shares of
Preferred Stock (the "Preferred Stock Warrants"); and (5) Common Stock,
including Common Stock issuable upon the conversion or exchange of Debt
Securities or Preferred Stock offered hereunder, to the extent such Debt
Securities or Preferred Stock are, by their terms, convertible into or
exchangeable for shares of Common Stock, in amounts, at prices and on terms to
be determined by market conditions at the time of offering thereof. The Debt
Warrants and Preferred Stock Warrants are collectively referred to herein as the
"Securities Warrants" and the Debt Securities, Preferred Stock, Common Stock and
Securities Warrants are collectively referred to herein as the "Offered
Securities."
The Offered Securities may be issued in one or more series or issuances
and will be limited to $600,000,000 in aggregate public offering price (or its
equivalent, based on the applicable exchange rate, to the extent Debt Securities
are issued for one or more foreign currencies or currency units). The Offered
Securities may be sold for U.S. dollars, or any foreign currency or currencies
or currency units, and the principal of, and any premium or interest on, the
Debt Securities may be payable in U.S. dollars, or any foreign currency or
currencies or currency units.
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered are set forth in the accompanying Prospectus
Supplement (the "Prospectus Supplement"), including, where applicable, (1) in
the case of Debt Securities, the specific designation, aggregate principal
amount, authorized denomination, initial offering price, maturity, premium (if
any), interest rate (which may be fixed or floating), time of and method of
calculating the payment of interest, if any, the currency in which principal,
premium, if any, and interest, if any, are payable, any redemption or sinking
fund terms, any terms for the conversion into or exchange for shares of Common
Stock or Preferred Stock or other Debt Securities, terms of subordination of
Subordinated Securities, and other specific terms; (2) in the case of Preferred
Stock, the specific designation, any dividend, liquidation, redemption, sinking
fund, voting or other rights, time of payment of dividends, any terms for the
conversion into or exchange for shares of Common Stock or shares of Preferred
Stock or Debt Securities, the initial offering price and other specific terms;
(3) in the case of Common Stock, the initial offering price; and (4) in the
case of Securities Warrants, the duration, initial offering price, exercise
price and detachability thereof. The Prospectus Supplement will also contain
information, where applicable, about certain United States Federal income tax
considerations relating to, and any listing on a securities exchange of, the
Offered 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.
-----------------------------
The Offered Securities will be sold directly, through agents, dealers
or underwriters as designated from time to time, or through a combination of
such methods. If any agents of the Company or any dealers or underwriters are
involved in the sale of the Offered Securities in respect of which this
Prospectus is being delivered, the names of such agents, dealers or
underwriters and any applicable agent's commission, dealer's purchase price or
underwriter's discount will be set forth in or may be calculated from the
Prospectus Supplement. The net proceeds to the Company from such sale will be
the purchase price less such commission in the case of an agent, the purchase
price in the case of a dealer, or the public offering price less such discount
in the case of an underwriter and less, in each case, other attributable
issuance expenses. See "Plan of Distribution."
The date of this Prospectus is March , 1997.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "Commission") relating to its business, financial
position, results of operations and other matters. Such reports and other
information can be inspected and copied at the Public Reference Section
maintained by the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at certain of its Regional Offices, located at
Northwest Atrium Center (Suite 1400), 500 West Madison Street, Chicago,
Illinois 60661, and Seven World Trade Center, 13th Floor, New York, New York
10048. Copies of such material can also be obtained from the Public Reference
Section of the Commission at prescribed rates. Such material can also be
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005. Such material may also be accessed electronically by
means of the Commission's home page on the Internet (http://www.sec.gov).
The Company has filed with the Commission a registration statement on
Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the securities offered hereby.
This Prospectus does not contain all the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. Reference is made to the
Registration Statement and to the exhibits relating thereto for further
information with respect to the Company and the securities offered hereby.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference herein its Annual Report
on Form 10-K for the fiscal year ended December 31, 1996 and its Current
Reports on Form 8-K dated January 29, 1997 and February 11, 1997, all of which
have been previously filed with the Commission under File No. 1-13926, and the
description of Common Stock of the Company that is contained in the
registration statement on Form 8-A dated September 6, 1995 filed under the
Exchange Act under File No. 1-13926, and Amendment No. 1 thereto on Form 8-A/A
dated October 9, 1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and before
the termination of the offering of the Offered Securities offered hereby shall
be deemed incorporated herein by reference, and such documents shall be deemed
to be a part hereof from the date of filing such documents. Any statement
contained herein, in a document incorporated or deemed to be incorporated by
reference herein, or in the accompanying Prospectus Supplement, shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent that
a statement contained in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein or in the accompanying
Prospectus Supplement modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the above documents incorporated or deemed to be
incorporated herein by reference (other than exhibits to such documents, unless
such exhibits are specifically incorporated by reference into the documents
that this Prospectus incorporates). Written or oral requests should be directed
to: Diamond Offshore Drilling, Inc., 15415 Katy Freeway, Houston, Texas 77094;
Attn: Corporate Secretary (telephone 281-492-5300).
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THE COMPANY
The Company, through wholly owned subsidiaries, engages worldwide in
the contract drilling of offshore oil and gas wells and is a leader in deep
water drilling. The Company's fleet of 46 mobile offshore drilling rigs is one
of the largest in the world and includes the largest fleet of semisubmersible
rigs. The fleet is comprised of 30 semisubmersibles (including three of the
world's 13 fourth-generation semisubmersibles), 15 jack-ups and one drillship.
Unless the context otherwise requires, references herein and in any
Prospectus Supplement to the "Company" shall mean Diamond Offshore Drilling,
Inc. and its subsidiaries.
The Company is a Delaware corporation with its principal executive
offices located at 15415 Katy Freeway, Houston, Texas 77094, where its
telephone number is (281) 492-5300.
RATIO OF EARNINGS TO FIXED CHARGES
For the year ended December 31, 1996, the Company's ratio of earnings
to fixed charges was 31.56. The Company's fixed charges exceeded the Company's
earnings by approximately $13,803,000, $46,425,000, $21,670,000 and $77,951,000
for the years ended December 31, 1995, 1994, 1993 and 1992, respectively.
Fixed charges for the years ended December 31, 1992 through December 31, 1995
consisted primarily of interest expense on notes payable to Loews Corporation.
For all such periods, the ratio of earnings to fixed charges has been computed
on a total enterprise basis. Earnings represent income from continuing
operations plus income taxes and fixed charges. Fixed charges represent
interest, whether expensed or capitalized.
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USE OF PROCEEDS
Unless otherwise specified in the Prospectus Supplement, the net
proceeds from the sale of the Offered Securities offered hereby will be used
for general corporate purposes, including repayment of borrowings, working
capital, capital expenditures and acquisitions. Additional information on the
use of net proceeds from the sale of the Offered Securities offered hereby is
set forth in the Prospectus Supplement relating to such Offered Securities.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities
summarizes certain general terms and provisions of the Debt Securities to which
any Prospectus Supplement may relate. The particular terms of the Debt
Securities and the extent, if any, to which such general provisions may apply
to any series of Debt Securities will be described in the Prospectus Supplement
relating to such series.
The Debt Securities are to be issued under one or more Indentures
(collectively, the "Indenture") between the Company and a trustee selected by
the Company, which trustee shall be named in a Prospectus Supplement (the
"Trustee"). The following statements are subject to the detailed provisions of
the Indenture, a copy of which is filed as an exhibit to the Registration
Statement. Wherever any particular provisions of the Indenture or terms defined
therein are referred to, such provisions and terms are incorporated by
reference as a part of the statements made herein and such statements are
qualified in their entirety by such references. References to particular
sections of the Indenture are noted below. Defined terms used herein but not
defined herein shall have the meanings ascribed to them in the Indenture.
GENERAL
The Debt Securities may be either Senior Securities or Subordinated
Securities and will be unsecured. The Indenture does not limit the amount of
Debt Securities which may be issued thereunder and Debt Securities may be
issued thereunder up to the aggregate principal amount which may be authorized
from time to time by the Company. (Section 301) Debt Securities will be issued
from time to time and offered on terms determined by market conditions at the
time of sale.
The Senior Securities will be unsecured and will rank on a parity with
all other unsecured and unsubordinated indebtedness of the Company. To the
extent provided in the Prospectus Supplement relating thereto, the Company may
be required to secure Senior Securities equally and ratably with other Debt (as
defined in the Indenture) with respect to which the Company elects or is
required to provide security. The Subordinated Securities will be unsecured and
will be subordinated and junior to all "Senior Indebtedness" (which for this
purpose includes any Senior Securities) to the extent set forth in the
applicable supplemental Indenture and the Prospectus Supplement relating to
such series.
The Debt Securities may be issued in one or more series with the same
or various maturities at par, at a premium or at a discount. Any Debt
Securities bearing no interest or interest at a rate which at the time of
issuance is below market rates will be sold at a discount (which may be
substantial) from their stated principal amount. Federal income tax
consequences and other special considerations applicable to any such
substantially discounted Debt Securities will be described in the Prospectus
Supplement relating thereto.
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Reference is made to the Prospectus Supplement for the following terms
of the Debt Securities offered hereby: (i) the designation, aggregate principal
amount and authorized denominations of such Debt Securities; (ii) the
percentage of their principal amount at which such Debt Securities will be
issued; (iii) the date or dates on which the Debt Securities will mature; (iv)
the rate or rates (which may be fixed or floating) per annum at which the Debt
Securities will bear interest, if any, or the method of determining such rate
or rates; (v) the date or dates on which any such interest will be payable, the
date or dates on which payment of any such interest will commence and the
Regular Record Dates for such Interest Payment Dates; (vi) whether such Debt
Securities are Senior Securities or Subordinated Securities; (vii) the terms of
any mandatory or optional redemption (including any provisions for any sinking,
purchase or other analogous fund) or repayment option; (viii) the currency,
currencies or currency units for which the Debt Securities may be purchased and
the currency, currencies or currency units in which the principal thereof, any
premium thereon and any interest thereon may be payable; (ix) if the currency,
currencies or currency units for which the Debt Securities may be purchased or
in which the principal thereof, any premium thereon and any interest thereon
may be payable is at the election of the Company or the purchaser, the manner
in which such election may be made; (x) if the amount of payments on the Debt
Securities is determined with reference to an index based on one or more
currencies or currency units, changes in the price of one or more securities or
changes in the price of one or more commodities, the manner in which such
amounts may be determined; (xi) the extent to which any of the Debt Securities
will be issuable in temporary or permanent global form, or the manner in which
any interest payable on a temporary or permanent Global Security will be paid;
(xii) the terms and conditions upon which conversion or exchange of the Debt
Securities into or for Common Stock, Preferred Stock or other Debt Securities
will be effected, including the conversion price or exchange ratio, the
conversion or exchange period and any other conversion or exchange provisions;
(xiii) information with respect to book-entry procedures, if any; (xiv) a
discussion of certain Federal income tax, accounting and other special
considerations, procedures and limitations with respect to the Debt Securities;
and (xv) any other specific terms of the Debt Securities not inconsistent with
the Indenture.
If any of the Debt Securities are sold for one or more foreign
currencies or foreign currency units or if the principal of, premium, if any,
or any interest on any series of Debt Securities is payable in one or more
foreign currencies or foreign currency units, the restrictions, elections,
Federal income tax consequences, specific terms and other information with
respect to such issue of Debt Securities and such currencies or currency units
will be set forth in the Prospectus Supplement relating thereto.
Unless otherwise specified in the Prospectus Supplement, the principal
of, any premium on, and any interest on the Debt Securities will be payable,
and the Debt Securities will be transferable, at the Corporate Trust Office of
the Trustee specified in the applicable Indenture, provided that payment of
interest, if any, may be made at the option of the Company by check mailed on
or before the payment date, first class mail, to the address of the person
entitled thereto as it appears on the registry books of the Company or its
agent.
Unless otherwise specified in the Prospectus Supplement, the Debt
Securities will be issued only in fully registered form and in denominations of
$1,000 and any integral multiple thereof. (Sections 301 and 302) No service
charge will be made for any transfer or exchange of any Debt Securities, but
the Company may, except in certain specified cases not involving any transfer,
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. (Section 305)
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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 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 may not be transferred except as a whole
by the Depositary for such Global Security to a nominee of such Depositary or
by a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by the Depositary or any nominee of such Depositary to a
successor Depositary or any nominee of such successor.
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 such nominee,
as the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Except as provided below, owners of beneficial interests in a Global
Security will not be entitled to have 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 of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture governing such Debt Securities.
Payments of principal of, any premium on, and any interest 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. Neither the Company, the Trustee for such
Debt Securities, any Paying Agent, nor the Security 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.
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The Company expects that the Depositary for a series of Debt
Securities or its nominee, upon receipt of any payment of principal, premium or
interest in respect of a permanent Global Security representing any of 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 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.
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
denominations, unless otherwise specified by the Company, of $1,000 and
integral multiples thereof.
SENIOR SECURITIES
The Senior Securities will be direct, unsecured obligations of the
Company, and will constitute Senior Indebtedness (in each case as defined in
the applicable supplemental Indenture) ranking on a parity with all other
unsecured and unsubordinated indebtedness of the Company.
SUBORDINATED SECURITIES
The Subordinated Securities will be direct, unsecured obligations of
the Company. The obligations of the Company pursuant to the Subordinated
Securities will be subordinate in right of payment to the extent set forth in
the Indenture and the applicable supplemental Indenture to all Senior
Indebtedness (including all Senior Securities) (in each case as defined in the
applicable supplemental Indenture). Except to the extent otherwise set forth in
a Prospectus Supplement, the Indenture does not contain any restriction on the
amount of Senior Indebtedness which the Company may incur.
The terms of the subordination of a series of Subordinated Securities,
together with the definition of Senior Indebtedness related thereto, will be as
set forth in the applicable supplemental Indenture and the Prospectus
Supplement relating to such series.
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The Subordinated Securities will not be subordinated to indebtedness
of the Company which is not Senior Indebtedness, and the creditors of the
Company who do not hold Senior Indebtedness will not benefit from the
subordination provisions described herein. In the event of the bankruptcy or
insolvency of the Company before or after maturity of the Subordinated
Securities, such other creditors would rank pari passu with holders of the
Subordinated Securities, subject, however, to the broad equity powers of the
Federal bankruptcy court pursuant to which such court may, among other things,
reclassify the claims of any series of Subordinated Securities into a class of
claims having a different relative priority with respect to the claims of such
other creditors or any other claims against the Company.
CERTAIN DEFINITIONS
Certain terms defined in Section 101 of the Indenture are summarized
below.
"Debt" means indebtedness for money borrowed.
"Subsidiary", when used with respect to the Company, means (i) any
corporation of which a majority of the outstanding voting stock is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries, or
both, (ii) a partnership in which the Company or any Subsidiary of the Company
is, at the date of determination, a general or limited partner of such
partnership, but only if the Company or its Subsidiary is entitled to receive
more than fifty percent of the assets of such partnership upon its dissolution,
or (iii) any other Person (other than a corporation or partnership) in which
the Company or any Subsidiary of the Company, directly or indirectly, at the
date of determination thereof, has (x) at least a majority ownership interest
or (y) the power to elect or direct the election of a majority of the directors
or other governing body of such Person.
COVENANTS
The Indenture contains certain covenants that will be applicable
(unless waived or amended) so long as any of the Debt Securities are
outstanding, unless stated otherwise in the Prospectus Supplement.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
The Indenture provides that the Company may not consolidate with or
merge into any other Person or convey or transfer its properties and assets
substantially as an entirety to any Person, unless (i) the successor Person
shall be a corporation or partnership organized and existing under the laws of
the United States or any State thereof or the District of Columbia, and shall
expressly assume by a supplemental indenture executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of, any premium on, and any interest on, all the outstanding Debt
Securities and the performance of every covenant in the Indenture on the part
of the Company to be performed or observed; (ii) immediately after giving
effect to such transaction, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and (iii) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance or transfer and such supplemental
indenture comply with the foregoing provisions relating to such transaction.
(Section 801) In case of any such consolidation, merger, conveyance or
transfer, such successor Person will succeed to and be substituted for the
Company as obligor on the Debt Securities, with the same effect as if it had
been named in the Indenture as the Company. (Section 802 )
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EVENTS OF DEFAULT; WAIVER AND NOTICE THEREOF; DEBT SECURITIES IN FOREIGN
CURRENCIES
As to any series of Debt Securities, an Event of Default is defined in
the Indenture as (a) default for 30 days in payment of any interest on the Debt
Securities of such series; (b) default in payment of principal of or any
premium on the Debt Securities of such series at maturity; (c) default in
payment of any sinking or purchase fund or analogous obligation, if any, on the
Debt Securities of such series; (d) default by the Company in the performance
of any other covenant or warranty contained in the Indenture for the benefit of
such series which shall not have been remedied by the end of a period of 60
days after notice is given as specified in the Indenture; (e) certain events of
bankruptcy, insolvency and reorganization of the Company; and (f) to the extent
set forth in the applicable supplemental Indenture and Prospectus Supplement,
certain defaults under other Debt. (Section 501)
A default under one series of Debt Securities will not necessarily be
a default under another series. Any additions, deletions or other changes to
the Events of Default which will be applicable to a series of Debt Securities
will be described in the Prospectus Supplement relating to such series of Debt
Securities.
The Indenture provides that (i) if an Event of Default described in
clause (a), (b), (c), (d) or (f) above (if the Event of Default under clause
(d) is with respect to less than all series of Debt Securities then
outstanding) shall have occurred and be continuing with respect to any series,
either the Trustee or the holders of not less than 25% in aggregate principal
amount of the Debt Securities of such series then outstanding (each such series
acting as a separate class) may declare the principal (or, in the case of
Original Issue Discount Securities, the portion thereof specified in the terms
thereof) of all outstanding Debt Securities of such series and the interest
accrued thereon, if any, to be due and payable immediately and (ii) if an Event
of Default described in clause (d) or (f) above (if the Event of Default under
clause (d) is with respect to all series of Debt Securities then outstanding)
shall have occurred and be continuing, either the Trustee or the holders of at
least 25% in aggregate principal amount of all Debt Securities then outstanding
(treated as one class) may declare the principal (or, in the case of Original
Issue Discount Securities, the portion thereof specified in the terms thereof)
of all Debt Securities then outstanding and the interest accrued thereon, if
any, to be due and payable immediately, but upon certain conditions such
declarations may be annulled and past defaults (except for defaults in the
payment of principal of, any premium on, or any interest on, such Debt
Securities and in compliance with certain covenants) may be waived by the
holders of a majority in aggregate principal amount of the Debt Securities of
such series then outstanding. If an Event of Default described in clause (e)
occurs and is continuing, then the principal amount (or, in the case of Debt
Securities originally issued at a discount, such portion of the principal
amount as may be specified in the terms hereof) of all the Debt Securities then
outstanding and all accrued interest thereon shall become and be due and
payable immediately, without any declaration or other act by the Trustee or any
other Holder. (Sections 502 and 513)
Under the Indenture the Trustee must give to the holders of each
series of Debt Securities notice of all uncured defaults known to it with
respect to such series within 90 days after such a default occurs (the term
default to include the events specified above without notice or grace periods);
provided that, except in the case of default in the payment of principal of,
any premium on, or any interest on, any of the Debt Securities, or default in
the payment of any sinking or purchase fund installment or analogous
obligations, the Trustee shall be protected in withholding such notice if it in
good faith determines that the withholding of such notice is in the interests
of the holders of the Debt Securities of such series. (Section 602)
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No holder of any Debt Securities of any series may institute any
action under the Indenture unless (a) such holder shall have given the Trustee
written notice of a continuing Event of Default with respect to such series,
(b) the holders of not less than 25% in aggregate principal amount of the Debt
Securities of such series then outstanding shall have requested the Trustee to
institute proceedings in respect of such Event of Default, (c) such holder or
holders shall have offered the Trustee such reasonable indemnity as the Trustee
may require, (d) the Trustee shall have failed to institute an action for 60
days thereafter and (e) no inconsistent direction shall have been given to the
Trustee during such 60-day period by the holders of a majority in aggregate
principal amount of Debt Securities of such series. (Section 507)
The holders of a majority in aggregate principal amount of the Debt
Securities of any series affected and then outstanding will have the right,
subject to certain limitations, to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to such series of Debt
Securities. (Section 512) The Indenture provides that, in case an Event of
Default shall occur and be continuing, the Trustee, in exercising its rights
and powers under the Indenture, will be required to use the degree of care of a
prudent man in the conduct of his own affairs. (Section 601) The Indenture
further provides that the Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties under the Indenture unless it has reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is reasonably assured to it. (Section 601)
The Company must furnish to the Trustee within 120 days after the end
of each fiscal year a statement signed by one of certain officers of the
Company to the effect that a review of the activities of the Company during
such year and of its performance under the Indenture and the terms of the Debt
Securities has been made, and, to the best of the knowledge of the signatories
based on such review, the Company has complied with all conditions and
covenants of the Indenture or, if the Company is in default, specifying such
default. (Section 1004)
If any Debt Securities are denominated in a coin or currency other
than that of the United States, then for the purposes of determining whether
the holders of the requisite principal amount of Debt Securities have taken any
action as herein described, the principal amount of such Debt Securities shall
be deemed to be that amount of United States dollars that could be obtained for
such principal amount on the basis of the spot rate of exchange into United
States dollars for the currency in which such Debt Securities are denominated
(as evidenced to the Trustee by an Officers' Certificate) as of the date the
taking of such action by the holders of such requisite principal amount is
evidenced to the Trustee as provided in the Indenture. (Section 104)
If any Debt Securities are Original Issue Discount Securities, then
for the purposes of determining whether the holders of the requisite principal
amount of Debt Securities have taken any action herein described, the principal
amount of such Debt Securities shall be deemed to be the portion of such
principal amount that would be due and payable at the time of the taking of
such action upon a declaration of acceleration of maturity thereof. (Section
101)
MODIFICATION OF THE INDENTURE
The Company and the Trustee may, without the consent of the holders of
the Debt Securities, enter into indentures supplemental to the Indenture for,
among others, one or more of the following purposes; (i) to evidence the
succession of another corporation to the Company, and the assumption by such
successor of
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the Company's obligations under the Indenture and the Debt Securities of any
series; (ii) to add covenants of the Company, or surrender any rights of the
Company, for the benefit of the holders of Debt Securities of any or all
series; (iii) to cure any ambiguity, omission, defect or inconsistency in such
Indenture; (iv) to establish the form or terms of any series of Debt
Securities, including any Subordinated Securities; (v) to evidence and provide
for the acceptance of any successor Trustee with respect to one or more series
of Debt Securities or to facilitate the administration of the trusts thereunder
by one or more trustees in accordance with such Indenture; and (vi) to provide
any additional Events of Default. (Section 901)
With certain exceptions, the Indenture or the rights of the holders of
the Debt Securities may be modified by the Company and the Trustee with the
consent of the holders of a majority in aggregate principal amount of the Debt
Securities of each series affected by such modification then outstanding, but
no such modification may be made without the consent of the holder of each
outstanding Debt Security affected thereby which would (i) change the maturity
of any payment of principal of, or any premium on, or any installment of
interest on any Debt Security, or reduce the principal amount thereof or the
interest or any premium thereon, or change the method of computing the amount
of principal thereof or interest thereon on any date or change any place of
payment where, or the coin or currency in which, any Debt Security or any
premium or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the maturity thereof (or,
in the case of redemption or repayment, on or after the redemption date or the
repayment date, as the case may be), or (ii) reduce the percentage in principal
amount of the outstanding Debt Securities of any series, the consent of whose
holders is required for any such modification, or the consent of whose holders
is required for any waiver of compliance with certain provisions of the
Indenture or certain defaults thereunder and their consequences provided for in
the Indenture, or (iii) modify any of the provisions of certain Sections of the
Indenture, including the provisions summarized in this paragraph, except to
increase any such percentage or to provide that certain other provisions of the
Indenture cannot be modified or waived without the consent of the holder of
each outstanding Debt Security affected thereby. (Section 902)
DISCHARGE AND DEFEASANCE
Unless otherwise set forth in the applicable Prospectus Supplement,
the Company can discharge or defease its obligations with respect to any series
of Debt Securities as set forth below. (Article Four)
The Company may discharge all of its obligations (except those set
forth below) to holders of any series of Debt Securities issued under any
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, premium, if
any, and interest, if any, on all outstanding Debt Securities of such series
and to make any mandatory sinking fund payments, if any, thereon when due.
(Section 401)
Unless otherwise provided in the applicable Prospectus Supplement, the
Company may also elect at any time to (a) defease and be discharged from all of
its obligations (except those set forth below) to holders of any series of Debt
Securities issued under each Indenture ("defeasance") or (b) be released from
all of its obligations with respect to certain covenants applicable to any
series of Debt Securities issued under each supplemental Indenture ("covenant
defeasance"), if, among other things: (i) the Company irrevocably
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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, premium, if any, and interest, if any, on all outstanding
Debt Securities of such series and to make any mandatory sinking fund payments,
if any, 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; and (iii) 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 Federal income tax purposes as a
result of such defeasance or covenant defeasance and that defeasance or
covenant defeasance will not otherwise alter the Federal income tax treatment
of such holders' principal and interest payments, if any, on such series of
Debt Securities. (Section 403)
DESCRIPTION OF PREFERRED STOCK
The following is a description of certain general terms and provisions
of the Preferred Stock. The particular terms of any series of Preferred Stock
will be described in the applicable Prospectus Supplement. If so indicated in a
Prospectus Supplement, the terms of any such series may differ from the terms
set forth below.
The Board of Directors of the Company (the "Board of Directors") is
authorized, without action by the holders of Common Stock, to issue up to
25,000,000 shares of Preferred Stock in one or more series. Prior to issuance
of shares of each series, the Board of Directors is required by the Delaware
General Corporation Law (the "DGCL") and the Company's Restated Certificate of
Incorporation (the "Certificate of Incorporation") to adopt resolutions and
file a Certificate of Designations (the "Certificate of Designations") with the
Secretary of State of the State of Delaware, fixing for each such series the
designations, powers, preferences and rights of the shares of such series and
the qualifications, limitations or restrictions thereon, including, but not
limited to, dividend rights, dividend rate or rates, conversion rights, voting
rights, rights and terms of redemption (including sinking fund provisions), the
redemption price or prices, and the liquidation preferences as are permitted by
the DGCL. The Board of Directors could authorize the issuance of shares of
Preferred Stock with terms and conditions which could have the effect of
discouraging a takeover or other transaction which holders of some, or a
majority, of such shares might believe to be in their best interests or in
which holders of some, or a majority, of such shares might receive a premium
for their shares over the then-market price of such shares.
Subject to limitations prescribed by the DGCL, the Board of Directors
is authorized to fix the number of shares constituting each series of Preferred
Stock and the designations and powers, preferences and relative, participating,
optional or other special rights and qualifications, limitations or
restrictions thereof, including such provisions as may be desired concerning
voting, redemption, dividends, dissolution or the distribution of assets,
conversion or exchange, and such other subjects or matters as may be fixed by
resolution of the Board of Directors or duly authorized committee thereof. The
Preferred Stock offered hereby will, upon issuance and full payment of the
purchase price therefor, be fully paid and nonassessable and will not have, or
be subject to, any preemptive or similar rights.
Reference is made to the Prospectus Supplement relating to the series
of Preferred Stock being offered for the specific terms thereof, including: (i)
the title and stated value of such Preferred Stock; (ii) the number of shares
of such Preferred Stock offered, the liquidation preference per share and the
purchase price of such Preferred Stock; (iii) the dividend rate(s), period(s)
and/or payment date(s) or method(s) of calculation thereof
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applicable to such Preferred Stock; (iv) whether dividends shall be cumulative
or non-cumulative and, if cumulative, the date from which dividends on such
Preferred Stock shall accumulate; (v) the procedures for any auction and
remarketing, if any, for such Preferred Stock; (vi) the provisions for a
sinking fund, if any, for such Preferred Stock; (vii) the provisions for
redemption, if applicable, of such Preferred Stock; (viii) any listing of such
Preferred Stock on any securities exchange; (ix) the terms and conditions, if
applicable, upon which such Preferred Stock will be convertible into Common
Stock, including the conversion price (or manner of calculation thereof) and
conversion period; (x) voting rights, if any, of such Preferred Stock; (xi) a
discussion of any material and/or special Federal income tax considerations
applicable to such Preferred Stock; (xii) the relative ranking and preferences
of such Preferred Stock as to dividend rights and rights upon liquidation,
dissolution or winding up of the affairs of the Company; (xiii) any limitations
on issuance of any series of Preferred Stock ranking senior to or on a parity
with such series of Preferred Stock as to dividend rights and rights upon
liquidation, dissolution or winding up of the affairs of the Company; and (xiv)
any other specific terms, preferences, rights, limitations or restrictions of
such Preferred Stock.
The transfer agent and registrar for each series of Preferred Stock
will be described in the related Prospectus Supplement.
DESCRIPTION OF COMMON STOCK
The following summary does not purport to be complete and is subject
in all respects to the applicable provisions of the DGCL and the Certificate of
Incorporation. The Company is presently authorized to issue 200,000,000 shares
of Common Stock, par value $0.01 per share. At the close of business on March
27 , 1997, an aggregate of 68,395,368 shares of Common Stock were
outstanding.
Subject to such preferential rights as may be granted by the Board of
Directors in connection with the future issuance of Preferred Stock, holders of
Common Stock are entitled to one vote for each share held. Such holders are not
entitled to cumulative voting for the purpose of electing directors and have no
preemptive or similar right to subscribe for, or to purchase, any shares of
Common Stock or other securities to be issued by the Company in the future.
Accordingly, the holders of more than 50% in voting power of the shares of
Common Stock voting generally for the election of directors will be able to
elect all of the Company's directors. At March 27, 1997, Loews Corporation
beneficially owned 51.2% of the outstanding shares of Common Stock and was in a
position to control actions that require the consent of stockholders, including
the election of directors, amendment of the Certificate of Incorporation and
any mergers or any sale of substantially all of the assets of the Company.
Holders of shares of Common Stock have no exchange, conversion or
preemptive rights and such shares are not subject to redemption. All
outstanding shares of Common Stock are, and upon issuance and full payment of
the purchase price therefor the shares of Common Stock offered hereby will be,
duly authorized, validly issued, fully paid and nonassessable. Subject to the
prior rights, if any, of holders of any outstanding class or series of
Preferred Stock having a preference in relation to the Common Stock as to
distributions upon the dissolution, liquidation and winding-up of the Company
and as to dividends, holders of shares of Common Stock are entitled to share
ratably in all assets of the Company which remain after payment in full of all
debts and liabilities of the Company, and to receive ratably such dividends, if
any, as may be declared by the Board of Directors from time to time out of
funds and other property legally available therefor.
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The Company is a Delaware corporation and is subject to Section 203
("Section 203") of the DGCL. In general, Section 203 will prevent an
"interested stockholder" (defined generally as a person owning 15% or more of a
corporation's outstanding voting stock) of the Company from engaging in a
"business combination" (as therein defined) with the Company for three years
following the date such person became an interested stockholder, unless (i)
before such person became an interested stockholder, the Board of Directors
approved the business combination in question, or the transaction which
resulted in such person becoming an interested stockholder, (ii) upon
consummation of the transaction that resulted in the interested stockholder
becoming such, the interested stockholder owns at least 85% of the voting stock
of the Company outstanding at the time such transaction commenced (excluding
stock held by directors who are also officers of the Company and by employee
stock plans that do not provide employees with rights to determine
confidentially whether shares held subject to the plan will be tendered in a
tender or exchange offer), or (iii) following the transaction in which such
person became an interested stockholder, the business combination is approved
by the Board of Directors and authorized at a meeting of stockholders by the
affirmative vote of the holders of not less than 66-2/3% of the outstanding
voting stock of the Company not owned by the interested stockholder. Under
Section 203, the restrictions described above do not apply to certain business
combinations proposed by an interested stockholder following the announcement
(or notification) of one of certain extraordinary transactions involving the
Company and a person who had not been an interested stockholder during the
preceding three years or who became an interested stockholder with the approval
of the Board of Directors, and which transactions are approved or not opposed
by a majority of the members of the Board of Directors then in office who were
directors prior to any person becoming an interested stockholder during the
previous three years or were recommended for election or elected to succeed
such directors by a majority of such directors. Section 203 does not apply to
Loews Corporation because it has been more than three years since Loews
Corporation became an interested stockholder.
The transfer agent and registrar for the Common Stock is ChaseMellon
Shareholder Services, L.L.C., whose principal offices are located at 450 West
33rd Street, New York, New York 10001.
DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Debt
Securities or Preferred Stock. Securities Warrants may be issued independently
or together with any Debt Securities or shares of Preferred Stock offered by
any Prospectus Supplement and may be attached to or separate from such Debt
Securities or shares of Preferred Stock. The Securities Warrants are to be
issued under Warrant Agreements to be entered into between the Company and the
Warrant Agent named in the Prospectus Supplement relating to the particular
issue of Securities Warrants (the "Warrant Agent"). The Warrant Agent will act
solely as an agent of the Company in connection with the Securities Warrants
and will not assume any obligation or relationship of agency or trust for or
with any holders of Securities Warrants or beneficial owners of Securities
Warrants. The following summaries of certain provisions of the form of Warrant
Agreement and Securities Warrants do not purport to be complete and are subject
to, and are qualified in their entirety by reference to, all the provisions of
the applicable Warrant Agreement and the Securities Warrants.
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GENERAL
If Securities Warrants are offered, the Prospectus Supplement will
describe the terms of the Securities Warrants, including the following: (i) the
offering price; (ii) the currency, currencies or currency units for which
Securities Warrants may be purchased; (iii) the designation, aggregate
principal amount, currency, currencies or currency units and terms of the Debt
Securities purchasable upon exercise of the Securities Warrants and the price
at which such Debt Securities may be purchased upon such exercise; (iv) the
designation, number of shares and terms of the series of Preferred Stock
purchasable upon exercise of the Securities Warrants to purchase Preferred
Stock and the price at which such shares of Preferred Stock may be purchased
upon such exercise; (v) if applicable, the designation and terms of the Debt
Securities or Preferred Stock with which the Securities Warrants are issued,
and the number of Securities Warrants issued with each such Debt Security or
share of Preferred Stock; (vi) if applicable, the date on and after which the
Securities Warrants and the related Debt Securities or shares of Preferred
Stock will be separately transferable; (vii) the date on which the right to
exercise the Securities Warrants shall commence and the date (the "Expiration
Date") on which such right shall expire; (viii) whether the Securities Warrants
will be issued in registered or bearer form; (ix) a discussion of certain
Federal income tax, accounting and other special considerations, procedures and
limitations relating to the Securities Warrants; and (x) any other terms of the
Securities Warrants.
Securities Warrants may be exchanged for new Securities Warrants of
different denominations, may (if in registered form) be presented for
registration of transfer, and may be exercised at the corporate trust office of
the Warrant Agent or any other office indicated in the Prospectus Supplement.
Before the exercise of their Securities Warrants, holders of Securities
Warrants will not have any of the rights of holders of the Debt Securities or
shares of Preferred Stock purchasable upon such exercise, including the right
to receive payments of principal of, any premium on, or any interest on, the
Debt Securities purchasable upon such exercise or to enforce the covenants in
the Indenture or to receive payments of dividends, if any, on the Preferred
Stock purchasable upon such exercise or to exercise any applicable right to
vote.
EXERCISE OF SECURITIES WARRANTS
Each Securities Warrant will entitle the holder to purchase such
principal amount of Debt Securities or such number of shares of Preferred Stock
at such exercise price as shall in each case be set forth in, or calculable
from, the Prospectus Supplement relating to the Securities Warrant. Securities
Warrants may be exercised at such times as are set forth in the Prospectus
Supplement relating to such Securities Warrants. 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 Securities Warrants will become void.
Subject to any restrictions and additional requirements that may be
set forth in the Prospectus Supplement relating thereto, Securities Warrants
may be exercised by delivery to the Warrant Agent of the certificate evidencing
such Securities Warrants properly completed and duly executed and of payment as
provided in the Prospectus Supplement of the amount required to purchase the
Debt Securities or shares of Preferred Stock purchasable upon such exercise.
The exercise price will be the price applicable on the date of payment in full,
as set forth in the Prospectus Supplement relating to the Securities Warrants.
Upon receipt of such payment and the certificate representing the Securities
Warrants to be exercised properly completed and duly executed at the corporate
trust office of the Warrant Agent or any other office indicated in the
Prospectus Supplement, the Company will, as soon as practicable, issue and
deliver the Debt Securities
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or shares of Preferred Stock purchasable upon such exercise. If fewer than all
of the Securities Warrants represented by such certificate are exercised, a new
certificate will be issued for the remaining amount of Securities Warrants.
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PLAN OF DISTRIBUTION
The Company may sell the Offered Securities offered hereby (1) through
underwriters or dealers; (2) through agents; (3) directly to purchasers; or (4)
through a combination of any such methods of sale. Any such underwriter, dealer
or agent may be deemed to be an underwriter within the meaning of the
Securities Act. The Prospectus Supplement relating to the Offered Securities
will set forth their offering terms, including the name or names of any
underwriters, dealers or agents, the purchase price of the Offered Securities
and the proceeds to the Company from such sale, any underwriting discounts,
commissions and other items constituting compensation to underwriters, dealers
or agents, any initial public offering price, any discounts or concessions
allowed or reallowed or paid by underwriters or dealers to other dealers, and
any securities exchanges on which the Offered Securities may be listed.
If underwriters or dealers are used in the sale, the Offered
Securities will be acquired by the underwriters or dealers for their own
account and may be resold from time to time in one or more transactions, at a
fixed price or prices, which may be changed, or at market prices prevailing at
the time of sale, or at prices related to such prevailing market prices, or at
negotiated prices. The Offered Securities may be offered to the public either
through underwriting syndicates represented by one or more managing
underwriters or directly by one or more of such firms. Unless otherwise set
forth in the Prospectus Supplement, the obligations of underwriters or dealers
to purchase the Offered Securities will be subject to certain conditions
precedent and the underwriters or dealers will be obligated to purchase all the
Offered Securities if any are purchased. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid by underwriters or
dealers to other dealers may be changed from time to time.
Offered Securities may be sold directly by the Company or through
agents designated by the Company from time to time. Any agent involved in the
offer or sale of the Offered Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent will be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will
authorize underwriters, dealers or agents to solicit offers by certain
specified institutions to purchase Offered Securities from the Company at the
public offering price set forth in the Prospectus Supplement pursuant to
delayed delivery contracts providing for payment and delivery on a specified
date in the future. Such contracts will be subject to any conditions set forth
in the Prospectus Supplement and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts. The underwriters and
other persons soliciting such contracts will have no responsibility for the
validity or performance of any such contracts.
Underwriters, dealers and agents may be entitled under agreements
entered into with the Company to indemnification by the Company against certain
civil liabilities, including liabilities under the Securities Act, or to
contribution by the Company to payments they may be required to make in respect
thereof. The terms and conditions of such indemnification will be described in
an applicable Prospectus Supplement. Underwriters, dealers and agents may be
customers of, engage in transactions with, or perform services for the Company
in the ordinary course of business.
Each series of Offered Securities other than Common Stock will be a
new issue of securities with no established trading market. Any underwriters to
whom Offered Securities are sold by the Company for public
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offering and sale may make a market in such Offered Securities, but such
underwriters 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 Offered Securities.
LEGAL MATTERS
The validity of the Offered Securities will be passed upon for the
Company by Weil, Gotshal & Manges LLP, 700 Louisiana, Suite 1600, Houston,
Texas 77002, and for the underwriters, dealers or agents, if any, by Andrews &
Kurth L.L.P., 425 Lexington Avenue, New York, New York 10017, unless otherwise
specified in the Prospectus Supplement.
EXPERTS
The consolidated financial statements of the Company and subsidiaries
as of December 31, 1996 and 1995 and for each of the years in the three-year
period ended December 31, 1996, incorporated by reference in this Prospectus
from the Company's Annual Report on Form 10-K for the year ended December 31,
1996, have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report with respect thereto, and is incorporated by
reference herein, in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
-----------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE
OFFERED SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT
IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY SINCE SUCH DATE.
-----------------------------
18
<PAGE> 20
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee............. $181,818.18
Trustee's Fees and Expenses.................................... 25,000.00
Printing Expenses............................................... 100,000.00
Rating Agencies' Fees.......................................... 100,000.00
Legal Fees and Expenses......................................... 200,000.00
Accountants' Fees and Expenses................................. 60,000.00
Blue Sky Fees and Expenses...................................... 5,000.00
-----------
Total....................................................... $671,818.18
===========
</TABLE>
- ---------------
* All amounts are estimated except for the registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102 of the DGCL allows a corporation to eliminate the personal
liability of directors of a corporation to the corporation or to any of its
stockholders for monetary damage for a breach of his fiduciary duty as a
director, except in the case where the director breached his duty of loyalty,
failed to act in good faith, engaged in intentional misconduct or knowingly
violated a law, authorized the payment of a dividend or approved a stock
repurchase in violation of Delaware corporate law or obtained an improper
personal benefit. The Company's Restated Certificate of Incorporation contains
a provision which, in substance, eliminates directors' personal liability as
set forth above.
Section 145 of the DGCL provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was a director, officer, employee or agent of the corporation or is or was
serving at its request in such capacity in another corporation or business
association against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
Company's Certificate of Incorporation contains a provision which, in
substance, provides for indemnification as set forth above.
Reference is made to Section 6 of the form of Underwriting Agreement
filed as Exhibit 1.1 for additional indemnification provisions.
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
1.1 -- Form of underwriting agreement between the Company and Credit
Suisse First Boston Corporation, individually and as the
representative of the underwriters named therein (incorporated
by reference to exhibit 1.1 to the Company's Current Report on
Form 8-K filed January 29, 1997).
</TABLE>
II-1
<PAGE> 21
<TABLE>
<S> <C>
1.2 -- Terms agreement, dated January 29, 1997, to the underwriting
agreement between the Company and Credit Suisse First Boston
Corporation, individually and as the representative of the
underwriters named therein, dated January 29, 1997
(incorporated by reference to exhibit 1.1 to the Company's
Current Report on form 8-k filed February 11, 1997).
1.3** -- Form of Underwriting Agreement.
4.1 -- Indenture, dated as of February 4, 1997, between the Company
and the Chase Manhattan Bank, as Trustee (incorporated by
reference to Exhibit 4.1 to the Company's Current Report on
Form 8-K filed February 11, 1997).
4.2 -- Supplemental Indenture, dated as of February 4, 1997,
between the Company and The Chase Manhattan Bank, as trustee
(incorporated by reference to exhibit 4.2 to the Company's
Current Report on Form 8-K filed February 11, 1997).
4.3** -- Form of Warrant Agreement.
4.4 -- Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the fiscal year ended December
31, 1995).
4.5 -- By-laws of the Company (incorporated by reference to
Exhibits 3.2, 3.2.1 and 3.2.2 of the Company's Registration
Statement No. 333-2680 on Forms S-4/S-1).
5.1 -- Opinion and consent of Weil, Gotshal & Manges LLP, counsel
for the Company.
12.1 -- Computation of Ratio of Earnings to Fixed Charges
(incorporated by reference to Exhibit 12.1 of the Company's
Annual Report on Form 10-K for the fiscal year ended December
31, 1996).
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of Weil, Gotshal & Manges LLP (included in Exhibit
5.1).
24.1* -- Powers of Attorney.
25.1 -- Statement of Eligibility of Trustee on Form T-1
(incorporated by reference to Exhibit 25.1 to the Company's
Current Report on Form 8-K filed January 29, 1997).
</TABLE>
- ---------------
* Previously filed.
** To be filed by amendment or incorporated herein by reference.
ITEM 17. UNDERTAKINGS
The Company hereby undertakes:
II-2
<PAGE> 22
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, 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 this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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;
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 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 this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering; and
(4) That, for 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 that is
incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the provisions described under Item 15
above, or otherwise, the Company 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 Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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
II-3
<PAGE> 23
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.
The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of section 310 of the Trust Indenture Act ("Act") in accordance
with the rules and regulations prescribed by the Commission under section
305(b)(2) of the Act.
II-4
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Company 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 Post-Effective Amendment No. 1 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Houston, State of Texas, on March 28, 1997.
DIAMOND OFFSHORE DRILLING, INC.
By: /s/ Richard L. Lionberger
----------------------------------------
Richard L. Lionberger
Vice President, General Counsel
and Secretary
II-5
<PAGE> 25
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Post-Effective Amendment No. 1 to the Registration Statement has
been signed by the following persons in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Robert E. Rose* President, Chief Executive Officer March 28, 1997
- --------------------------------- and Director
Robert E. Rose (Principal executive officer)
/s/ Lawrence R. Dickerson* Senior Vice President and Chief March 28, 1997
- --------------------------------- Financial Officer
Lawrence R. Dickerson (Principal financial officer)
/s/ Gary T. Krenek* Controller (Principal accounting March 28, 1997
- --------------------------------- officer)
Gary T. Krenek
/s/ James S. Tisch* Chairman of the Board March 28, 1997
- ---------------------------------
James S. Tisch
/s/ Herbert C. Hofmann* Director March 28, 1997
- ---------------------------------
Herbert C. Hofmann
</TABLE>
*By: /s/ Richard L. Lionberger
----------------------------
Richard L. Lionberger
Attorney-in-Fact
II-6
<PAGE> 26
EXHIBIT INDEX
<TABLE>
<S> <C>
1.1 -- Form of underwriting agreement between the Company and Credit
Suisse First Boston Corporation, individually and as the
representative of the underwriters named therein (incorporated
by reference to exhibit 1.1 to the Company's Current Report on
Form 8-K filed January 29, 1997).
1.2 -- Terms agreement, dated January 29, 1997, to the underwriting
agreement between the Company and Credit Suisse First Boston
Corporation, individually and as the representative of the
underwriters named therein, dated January 29, 1997
(incorporated by reference to exhibit 1.1 to the Company's
Current Report on form 8-k filed February 11, 1997).
1.3** -- Form of Underwriting Agreement.
4.1 -- Indenture, dated as of February 4, 1997, between the Company
and the Chase Manhattan Bank, as Trustee (incorporated by
reference to Exhibit 4.1 to the Company's Current Report on
Form 8-K filed February 11, 1997).
4.2 -- Supplemental Indenture, dated as of February 4, 1997,
between the Company and The Chase Manhattan Bank, as trustee
(incorporated by reference to exhibit 4.2 to the Company's
Current Report on Form 8-K filed February 11, 1997).
4.3** -- Form of Warrant Agreement.
4.4 -- Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the fiscal year ended December
31, 1995).
4.5 -- By-laws of the Company (incorporated by reference to
Exhibits 3.2, 3.2.1 and 3.2.2 of the Company's Registration
Statement No. 333-2680 on Forms S-4/S-1).
5.1 -- Opinion and consent of Weil, Gotshal & Manges LLP, counsel
for the Company.
12.1 -- Computation of Ratio of Earnings to Fixed Charges
(incorporated by reference to Exhibit 12.1 of the Company's
Annual Report on Form 10-K for the fiscal year ended December
31, 1996).
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of Weil, Gotshal & Manges LLP (included in Exhibit
5.1).
24.1* -- Powers of Attorney.
25.1 -- Statement of Eligibility of Trustee on Form T-1
(incorporated by reference to Exhibit 25.1 to the Company's
Current Report on Form 8-K filed January 29, 1997).
</TABLE>
- ---------------
* Previously filed.
** To be filed by amendment or incorporated herein by reference.
<PAGE> 1
EXHIBIT 5.1
WEIL, GOTSHAL & MANGES LLP
700 LOUISIANA, SUITE 1600
HOUSTON, TEXAS 77002
(713) 546-5000
March 28, 1997
Diamond Offshore Drilling, Inc.
15415 Katy Freeway
Houston, Texas 77094
Ladies and Gentlemen:
We have acted as counsel to Diamond Offshore Drilling, Inc., a
Delaware corporation (the "Company"), in connection with the preparation and
filing by the Company of Post-Effective Amendment No. 1 to its Registration
Statement on Form S-3 (Registration No. 333-19987) (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act"),
pertaining to the issuance by the Company from time to time, together or
separately, and as set forth in the prospectus contained in the Registration
Statement (the "Prospectus") and in one or more supplements to the Prospectus
(each, a "Prospectus Supplement"), of up to $600,000,000 aggregate offering
price of (1) debt securities (the "Debt Securities"), which may be either
senior or subordinated and which may be convertible into or exchangeable for
shares of common stock, par value $.01 per share, of the Company (the "Common
Stock"), shares of preferred stock, par value $.01 per share, of the Company
(the "Preferred Stock"), or other Debt Securities; (2) warrants to purchase
Debt Securities (the "Debt Warrants"); (3) Preferred Stock, which may be
convertible into or exchangeable for shares of Common Stock or shares of
Preferred Stock or Debt Securities; (4) warrants to purchase shares of
Preferred Stock (the "Preferred Stock Warrants"); and (5) Common Stock,
including Common Stock issuable upon the conversion or exchange of Debt
Securities or Preferred Stock offered thereunder, to the extent such
Debt Securities or Preferred Stock are, by their terms, convertible into or
<PAGE> 2
exchangeable for shares of Common Stock, in amounts, at prices and on terms to
be determined by market conditions at the time of offering thereof. The Debt
Securities will be issued pursuant to one or more indentures (each, an
"Indenture") in the form filed as an exhibit to the Registration Statement, as
amended or supplemented from time to time, between the Company, as obligor, and
a trustee (each, a "Trustee") chosen by the Company and qualified to act as
such under the Trust Indenture Act of 1939, as amended (the "TIA"). The Debt
Warrants and the Preferred Stock Warrants (collectively, the "Securities
Warrants") will be issued under one or more warrant agreements (each, a
"Warrant Agreement") between the Company and a financial institution identified
therein as warrant agent (each, a "Warrant Agent").
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Company's Restated Certificate
of Incorporation (the "Certificate"), the resolutions adopted by the Board of
Directors of the Company authorizing the filing of the Registration Statement,
the Indenture, and such other corporate records, agreements, documents and
other instruments, and such certificates or comparable documents of public
officials and of officers and representatives of the Company, and have made
such inquiries of such officers and representatives, as we have deemed relevant
and necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to this opinion that have not been independently established, we
have relied upon certificates or comparable documents of officers and
representatives of the Company.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that:
1. With respect to the Debt Securities issued under the
Registration Statement after the date hereof, when (1) the Registration
Statement shall have become effective under the Act, (2) an Indenture shall
have been duly executed and delivered by the Company and a Trustee and
2
<PAGE> 3
duly qualified under the TIA, duly establishing the terms of particular Debt
Securities, and (3) such Debt Securities shall have been (a) duly authorized,
executed, authenticated, issued and delivered against payment therefor as
contemplated by the Indenture and the Registration Statement and/or the
applicable Prospectus Supplement or (b) duly authorized and issued upon
conversion or exchange of Debt Securities or Preferred Stock which, by their
respective terms, are convertible into or exchangeable for Debt Securities or
upon exercise of Debt Warrants, in each case as contemplated by the Indenture
and the Registration Statement and/or the applicable Prospectus Supplement, and
the Company shall have received any additional consideration which is payable
upon such conversion, exchange or exercise, such Debt Securities will
constitute binding obligations of the Company enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except that rights to indemnification and
contribution thereunder and under the Indenture may be limited by federal or
state securities laws or public policy relating thereto.
2. With respect to the Preferred Stock issued under the
Registration Statement after the date hereof, when (1) the Registration
Statement shall have become effective under the Act, (2) a series of Preferred
Stock shall have been (a) duly authorized, duly established in accordance with
the terms of the Company's Certificate and applicable law, and upon adoption by
the Board of Directors of the Company of one or more resolutions in form and
content as required by applicable law, issued and sold against payment therefor
as contemplated by the Registration Statement and/or the applicable Prospectus
Supplement and by such resolution(s), or (b) duly authorized, duly established
in accordance with the terms of the Company's Certificate and applicable law,
and upon adoption by the Board of Directors of the Company of one or more
resolutions in form and content as required by applicable law, issued upon
conversion or exchange of Debt Securities or Preferred Stock which, by their
respective terms, are convertible into or exchangeable for such shares of
Preferred Stock or upon exercise of Preferred Stock Warrants, and the Company
shall have received any additional consideration which is payable upon such
3
<PAGE> 4
conversion, exchange or exercise, in each case as contemplated by the
Registration Statement and/or the applicable Prospectus Supplement and by such
resolution(s), and assuming for the purpose of each opinion set forth in this
paragraph 2 that the Company shall have sufficient authorized but unissued
shares of Preferred Stock to so issue such shares of such series of Preferred
Stock, such shares of such series of Preferred Stock will be validly issued,
fully paid and non-assessable.
3. With respect to the Common Stock issued under the
Registration Statement after the date hereof, when (1) the Registration
Statement shall have become effective under the Act and (2) shares of Common
Stock shall have been duly authorized pursuant to adoption by the Board of
Directors of the Company of one or more resolutions in form and content as
required by applicable law, and issued, including, without limitation, upon
conversion or exchange of Debt Securities or Preferred Stock which, by their
respective terms, are convertible into or exchangeable for such shares of
Common Stock, and the Company shall have received the consideration therefor
including, without limitation, any additional consideration which is payable
upon such conversion or exchange, in each case as contemplated by the
Registration Statement and/or the applicable Prospectus Supplement and by such
resolution(s), and assuming for the purpose of each opinion set forth in this
paragraph 3 that the Company shall have sufficient authorized but unissued
shares of Common Stock to so issue such shares of Common Stock, such shares of
Common Stock will be validly issued, fully paid and non-assessable.
4. With respect to the Securiites Warrants issued under the
Registration Statement after the date hereof, when (1) the Registration
Statement shall have become effective under the Act, (2) the blue sky or
securities laws of the necessary states shall have been complied with, (3) a
Warrant Agreement shall have been duly authorized, executed and delivered by
the Company and a Warrant Agent, duly establishing Debt Warrants or Preferred
Stock Warrants, and (4) the Debt Warrants or Preferred Stock Warrants, as the
case may be, shall have been duly authorized, executed, authenticated, issued
and delivered against payment therefor as contemplated by such Warrant
Agreement and the Registration Statement and/or the applicable Prospectus
Supplement, such Debt Warrants or Preferred Stock Warrants, as the case may be,
will be validly issued.
4
<PAGE> 5
To the extent that the obligations of the Company under any
Indenture may be dependent upon such matters, we assume for purposes of the
opinions set forth herein that each Trustee is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization; that
each Trustee is duly qualified to engage in the activities contemplated by each
Indenture to which it is a party; that each Indenture has been duly authorized,
executed and delivered by the Trustee party thereto and constitutes the legal,
valid and binding obligation of such Trustee, enforceable against such Trustee
in accordance with its terms; that each Trustee is in compliance, generally and
with respect to acting as a Trustee under each Indenture to which it is a
party, with all applicable laws and regulations; and that each Trustee has the
requisite organizational and legal power and authority to perform its
obligations under each Indenture to which it is a party.
To the extent that the obligations of the Company under any
Warrant Agreement may be dependent upon such matters, we assume for purposes of
the opinions set forth herein that each Warrant Agent is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization; that each Warrant Agent is duly qualified to engage in the
activities contemplated by each Warrant Agreement to which it is a party; that
each Warrant Agreement has been duly authorized, executed and delivered by the
Warrant Agent party thereto and constitutes the legal, valid and binding
obligation of such Warrant Agent, enforceable against such Warrant Agent in
accordance with its terms; that each Warrant Agent is in compliance, generally
and with respect to acting as a Warrant Agent under each Warrant Agreement to
which it is a party, with all applicable laws and regulations; and that each
Warrant Agent has the requisite organizational and legal power and authority to
perform its obligations under each Warrant Agreement to which it is a party.
The opinions expressed herein are limited to the laws of the
State of New York, the corporate laws of the State of Delaware, and the federal
laws of the United States, and we express no opinion as to the effect on the
matters covered by this letter of the laws of any other jurisdiction.
The opinions expressed herein are rendered solely for your
benefit in connection with the transactions described herein. Such opinions
may not be used or relied upon by any other person, nor may this letter or any
copies
5
<PAGE> 6
thereof be furnished to a third party, filed with a governmental agency,
quoted, cited or otherwise referred to without our prior written consent,
except that we hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the reference to our Firm under the caption
"Legal Matters" in the Prospectus contained therein.
Very truly yours,
/s/ WEIL, GOTSHAL & MANGES LLP
6
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to Registration Statement of Diamond Offshore Drilling, Inc. on Form S-3
(No. 333-19987) of our report dated February 4, 1997, appearing in the Annual
Report on Form 10-K of Diamond Offshore Drilling, Inc. for the year ended
December 31, 1996, and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Houston, Texas
March 28, 1997
Exhibit 23.1 - 1
