UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
Form 10-Q
x | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
FOR QUARTERLY PERIOD ENDED MARCH 31, 2012
¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
COMMISSION FILE NUMBER 1-13167
ATWOOD OCEANICS, INC.
(Exact name of registrant as specified in its charter)
TEXAS | 74-1611874 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
15835 Park Ten Place Drive Houston, Texas |
77084 | |
(Address of principal executive offices) | (Zip Code) |
281-749-7800
(Registrants telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months, and (2) has been subject to such filings requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer | x | Accelerated filer | ¨ | |||
Non-accelerated filer | ¨ | Smaller reporting company | ¨ |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x
Indicate the number of shares outstanding of each of the issuers classes of common stock, as of April 30, 2011: 65,361,041 shares of common stock, $1 par value
ATWOOD OCEANICS, INC.
FORM 10-Q
For the Quarter Ended March 31, 2012
Part I. Financial Information | ||||||||
Item 1. |
Unaudited Condensed Consolidated Financial Statements | Page | ||||||
a) |
Unaudited Condensed Consolidated Statements of Operations for the Three and Six Months ended March 31, 2012 and 2011 | 3 | ||||||
b) |
4 | |||||||
c) |
Unaudited Condensed Consolidated Balance Sheets as of March 31, 2012 and 2011 |
5 | ||||||
d) |
Unaudited Condensed Consolidated Statements of Cash Flows for the Six Months Ended March 31, 2012 and 2011 |
6 | ||||||
e) |
Unaudited Condensed Consolidated Statement of Changes in Shareholders Equity for the Six Months Ended March 31, 2012 and 2011 | 7 | ||||||
f) |
Notes to Unaudited Condensed Consolidated Financial Statements | 8 | ||||||
Item 2. |
Managements Discussion and Analysis of Financial Condition and Results of Operations | 17 | ||||||
Item 3. |
Quantitative and Qualitative Disclosures about Market Risk | 29 | ||||||
Item 4. |
Controls and Procedures | 30 | ||||||
Part II. Other Information | ||||||||
Item 1. | Legal Proceedings | 31 | ||||||
Item 1A. |
Risk Factors | 31 | ||||||
Item 5. |
Other Information | 31 | ||||||
Item 6. |
Exhibits | 31 | ||||||
33 |
2
ATWOOD OCEANICS, INC. AND SUBSIDIARIES
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
Three Months Ended March 31, |
Six Months Ended March 31, |
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2012 | 2011 | 2012 | 2011 | |||||||||||||
REVENUES: |
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Contract drilling |
$ | 171,621 | $ | 159,085 | $ | 356,293 | $ | 305,371 | ||||||||
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COSTS AND EXPENSES: |
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Contract drilling |
79,342 | 50,402 | 157,686 | 108,746 | ||||||||||||
Depreciation |
15,406 | 8,794 | 30,769 | 17,596 | ||||||||||||
General and administrative |
11,552 | 9,074 | 25,646 | 24,738 | ||||||||||||
Other, net |
863 | (16 | ) | 863 | (77 | ) | ||||||||||
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107,163 | 68,254 | 214,964 | 151,003 | |||||||||||||
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OPERATING INCOME |
64,458 | 90,831 | 141,329 | 154,368 | ||||||||||||
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OTHER INCOME (EXPENSE): |
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Interest expense, net of capitalized interest |
(1,080 | ) | (459 | ) | (1,683 | ) | (1,137 | ) | ||||||||
Interest income |
114 | 113 | 200 | 495 | ||||||||||||
Other |
| | 1,577 | | ||||||||||||
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(966 | ) | (346 | ) | 94 | (642 | ) | ||||||||||
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INCOME BEFORE INCOME TAXES |
63,492 | 90,485 | 141,423 | 153,726 | ||||||||||||
PROVISION FOR INCOME TAXES |
4,026 | 19,874 | 16,489 | 30,264 | ||||||||||||
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NET INCOME |
$ | 59,466 | $ | 70,611 | $ | 124,934 | $ | 123,462 | ||||||||
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EARNINGS PER COMMON SHARE (NOTE 2): |
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Basic |
0.91 | 1.09 | 1.92 | 1.91 | ||||||||||||
Diluted |
0.90 | 1.08 | 1.90 | 1.89 | ||||||||||||
AVERAGE COMMON SHARES OUTSTANDING (NOTE 2): |
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Basic |
65,276 | 64,720 | 65,150 | 64,624 | ||||||||||||
Diluted |
65,781 | 65,409 | 65,660 | 65,297 |
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
3
ATWOOD OCEANICS, INC. AND SUBSIDIARIES
UNAUDITED CONDENSED CONSOLIDATED
STATEMENT OF COMPREHENSIVE INCOME
Three Months Ended March 31, |
Six Months Ended March 31, |
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(In thousands) |
2012 | 2011 | 2012 | 2011 | ||||||||||||
Net income |
$ | 59,466 | $ | 70,611 | $ | 124,934 | $ | 123,462 | ||||||||
Other comprehensive loss |
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Loss on interest rate swaps |
(352 | ) | | (560 | ) | | ||||||||||
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Other comprehensive loss |
(352 | ) | | (560 | ) | | ||||||||||
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Total comprehensive income |
$ | 59,114 | $ | 70,611 | $ | 124,374 | $ | 123,462 | ||||||||
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The accompanying notes are an integral part of these condensed consolidated financial statements.
4
ATWOOD OCEANICS, INC. AND SUBSIDIARIES
UNAUDITED CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands)
March 31, 2012 |
September 30, 2011 |
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ASSETS |
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CURRENT ASSETS: |
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Cash and cash equivalents |
$ | 131,627 | $ | 295,002 | ||||
Accounts receivable |
104,307 | 87,173 | ||||||
Income tax receivable |
3,867 | 5,631 | ||||||
Inventories of materials and supplies |
60,831 | 58,263 | ||||||
Prepaid expenses and deferred costs |
6,837 | 14,862 | ||||||
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Total current assets |
307,469 | 460,931 | ||||||
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PROPERTY AND EQUIPMENT, net |
2,187,471 | 1,887,321 | ||||||
LONG TERM ASSETS: |
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Other receivables |
11,875 | 11,875 | ||||||
Deferred costs and other assets |
26,114 | 15,264 | ||||||
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Total long-term assets |
37,989 | 27,139 | ||||||
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Total assets |
$ | 2,532,929 | $ | 2,375,391 | ||||
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LIABILITIES AND SHAREHOLDERS' EQUITY |
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CURRENT ASSETS: |
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Accounts payable |
$ | 57,824 | $ | 113,021 | ||||
Accrued liabilities |
23,710 | 30,680 | ||||||
Notes payable |
| 5,461 | ||||||
Income tax payable |
13,141 | 8,461 | ||||||
Deferred credits |
16,794 | 1,700 | ||||||
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Total current liabilities |
111,469 | 159,323 | ||||||
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LONG TERM LIABILITIES: |
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Long-term debt |
600,000 | 520,000 | ||||||
Deferred income taxes |
9,355 | 9,780 | ||||||
Deferred credits |
7,427 | 7,910 | ||||||
Other |
19,344 | 25,591 | ||||||
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Total long-term liabilities |
636,126 | 563,281 | ||||||
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COMMITMENTS AND CONTINGENCIES (SEE NOTE 10) |
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SHAREHOLDERS' EQUITY: |
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Preferred stock, no par value; |
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1,000 shares authorized, none outstanding |
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Common stock, $1 par value, 90,000 shares authorized with 65,361 and 64,960 issued and outstanding at March 31, 2012 and September 30, 2011, respectively |
65,361 | 64,960 | ||||||
Paid-in capital |
152,856 | 145,084 | ||||||
Retained earnings |
1,569,204 | 1,444,270 | ||||||
Accumulated other comprehensive loss |
(2,087 | ) | (1,527 | ) | ||||
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Total shareholders' equity |
1,785,334 | 1,652,787 | ||||||
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Total liabilities and shareholders' equity |
$ | 2,532,929 | $ | 2,375,391 | ||||
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The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
5
ATWOOD OCEANICS, INC. AND SUBSIDIARIES
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
Six Months Ended March 31, |
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2012 | 2011 | |||||||
CASH FLOW FROM OPERATING ACTIVITIES: |
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Net income |
$ | 124,934 | $ | 123,462 | ||||
Adjustments to reconcile net cash provided by operating activities: |
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Depreciation |
30,769 | 17,596 | ||||||
Amortization of debt issuance costs |
1,562 | 404 | ||||||
Amortization of deferred items |
791 | 3,941 | ||||||
Provision for doubtful accounts |
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Provision for inventory obsolesence |
435 | 314 | ||||||
Deferred income tax benefit |
(425 | ) | (443 | ) | ||||
Share-based compensation expense |
4,931 | 3,316 | ||||||
Other, net |
863 | (77 | ) | |||||
Changes in assets and liabilities: |
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Increase in accounts receivable |
(765 | ) | (5,614 | ) | ||||
Decrease in income tax receivable |
1,764 | 8,960 | ||||||
Increase in inventory |
(3,003 | ) | (3,378 | ) | ||||
Decrease in prepaid expenses |
6,285 | 5,444 | ||||||
Increase in deferred costs and other assets |
(14,220 | ) | (7,690 | ) | ||||
Increase in accounts payable |
10,465 | 245 | ||||||
Increase (decrease) in accrued liabilities |
(7,337 | ) | 1,473 | |||||
Increase (decrease) in income tax payable |
4,680 | (12,162 | ) | |||||
Increase (decrease) in deferred credits and other liabilities |
(5,441 | ) | 37,842 | |||||
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Net cash provided by operating activities |
156,288 | 173,633 | ||||||
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CASH FLOW FROM INVESTING ACTIVITIES: |
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Capital expenditures |
(397,444 | ) | (420,829 | ) | ||||
Proceeds from sale of assets |
| 115 | ||||||
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Net cash used by investing activities |
(397,444 | ) | (420,714 | ) | ||||
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CASH FLOW FROM FINANCING ACTIVITIES: |
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Proceeds from issuance of bonds |
450,000 | | ||||||
Proceeds from credit facilities |
80,000 | 225,000 | ||||||
Principal payments on credit facilities |
(450,000 | ) | | |||||
Principal payments on notes payable |
(5,461 | ) | | |||||
Proceeds from exercise of stock options |
3,242 | 3,559 | ||||||
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Net cash provided by financing activities |
77,781 | 228,559 | ||||||
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NET DECREASE IN CASH AND CASH EQUIVALENTS |
$ | (163,375 | ) | $ | (18,522 | ) | ||
CASH AND CASH EQUIVALENTS, at beginning of period |
$ | 295,002 | $ | 180,523 | ||||
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CASH AND CASH EQUIVALENTS, at end of period |
$ | 131,627 | $ | 162,001 | ||||
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Non-cash activities |
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Increase (decrease) in accounts payable and accrued liabilities related to capital expenditures |
$ | (65,662 | ) | $ | 6,676 |
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
6
ATWOOD OCEANICS, INC. AND SUBSIDIARIES
UNAUDITED CONDENSED CONSOLIDATED
STATEMENT OF CHANGES IN SHAREHOLDERS EQUITY
Accumulated Other Comprehensive Loss |
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Total Stockholders Equity |
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Common Stock | Paid-in Capital |
Retained Earnings |
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(In thousands) |
Shares | Amount | ||||||||||||||||||||||
September 30, 2011 |
64,960 | $ | 64,960 | $ | 145,084 | $ | 1,444,270 | $ | (1,527 | ) | $ | 1,652,787 | ||||||||||||
Net income |
| | | 124,934 | | 124,934 | ||||||||||||||||||
Other comprehensive loss |
| | | | (560 | ) | (560 | ) | ||||||||||||||||
Restricted stock awards |
207 | 207 | (207 | ) | | | | |||||||||||||||||
Exercise of employee stock options |
194 | 194 | 3,048 | | | 3,242 | ||||||||||||||||||
Stock option and restricted stock award compensation expense |
| | 4,931 | | | 4,931 | ||||||||||||||||||
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March 31, 2012 |
65,361 | $ | 65,361 | $ | 152,856 | $ | 1,569,204 | $ | (2,087 | ) | $ | 1,785,334 | ||||||||||||
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The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
7
ATWOOD OCEANICS, INC. AND SUBSIDIARIES
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. UNAUDITED INTERIM INFORMATION
The unaudited interim condensed consolidated financial statements of Atwood Oceanics, Inc. and its subsidiaries as of March 31, 2012, and for the three and six months ended March 31, 2012 and 2011, included herein, have been prepared in accordance with accounting principles generally accepted in the United States of America for interim financial information and with the instructions for Form 10-Q and Article 10 of Regulation S-X. Unless otherwise indicated, references to we, us, our and the Company refer collectively to Atwood Oceanics, Inc., its subsidiaries and affiliates. The year-end condensed consolidated balance sheet data was derived from the audited financial statements as of September 30, 2011. Although these financial statements and related information have been prepared without audit, and certain information and note disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted, we believe that the note disclosures are adequate to make the information not misleading. The interim financial results may not be indicative of results that could be expected for a full fiscal year. It is suggested that these unaudited condensed consolidated financial statements be read in conjunction with the audited consolidated financial statements and the notes thereto included in our Annual Report to Shareholders for the year ended September 30, 2011. In our opinion, the unaudited interim financial statements reflect all adjustments considered necessary for a fair statement of our financial position, results of operations and cash flows for the periods presented.
2. EARNINGS PER COMMON SHARE
The computation of basic and diluted earnings per share is as follows (in thousands, except per share amounts):
Three Months Ended | Six Months Ended | |||||||||||||||||||||||
Net Income |
Shares | Per Share Amount |
Net Income | Shares | Per Share Amount |
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March 31, 2012: |
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Basic earnings per share |
$ | 59,466 | 65,276 | $ | 0.91 | $ | 124,934 | 65,150 | $ | 1.92 | ||||||||||||||
Effect of dilutive securities: |
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Stock options |
| 505 | $ | (0.01 | ) | | 510 | $ | (0.02 | ) | ||||||||||||||
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Diluted earnings per share |
$ | 59,466 | 65,781 | $ | 0.90 | $ | 124,934 | 65,660 | $ | 1.90 | ||||||||||||||
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March 31, 2011: |
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Basic earnings per share |
$ | 70,611 | 64,720 | $ | 1.09 | $ | 123,462 | 64,624 | $ | 1.91 | ||||||||||||||
Effect of dilutive securities: |
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Stock options |
| 689 | $ | (0.01 | ) | | 673 | $ | (0.02 | ) | ||||||||||||||
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Diluted earnings per share |
$ | 70,611 | 65,409 | $ | 1.08 | $ | 123,462 | 65,297 | $ | 1.89 | ||||||||||||||
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The calculation of diluted earnings per share for the three and six months ended March 31, 2012 and 2011 excludes shares of common stock related to 562,000 and 702,000 outstanding stock options, respectively, because such options were anti-dilutive. These options could potentially dilute basic earnings per share in the future.
8
3. SHARE-BASED COMPENSATION
Share-based compensation cost is measured at the grant date, based on the calculated fair value of the award, and is recognized as an expense over the requisite service period, which is generally the vesting period of the equity award. As of March 31, 2012, unrecognized compensation cost, net of estimated forfeitures, related to stock options and restricted stock awards was approximately $8.4 million and $17.8 million, respectively, which we expect to recognize over a weighted average period of approximately 2.6 years.
Stock Options
Under our stock incentive plans, the exercise price of each stock option must be equal to or greater than the fair market value of our common stock on the date of grant, with all outstanding options having a maximum term of 10 years. Options vest ratably over a period from the end of the first to the fourth year from the date of grant. Each option is for the purchase of one share of our common stock.
The per share weighted average fair value of stock options granted during the six months ended March 31, 2012 was $16.90. We estimated the fair value of each stock option then outstanding using the Black-Scholes pricing model and the following assumptions for the six months ended March 31, 2012:
Risk-Free Interest Rate |
0.9 | % | ||
Expected Volatility |
44 | % | ||
Expected Life (Years) |
5.4 | |||
Dividend Yield |
None |
The average risk-free interest rate is based on the five-year U.S. treasury security rate in effect as of the grant date. We determined expected volatility using a six-year historical volatility figure and determined the expected term of the stock options using 10 years of historical data. The expected dividend yield is based on the expected annual dividend as a percentage of the market value of our common stock as of the grant date. We have never paid any cash dividends on our common stock.
9
A summary of stock option activity during the six months ended March 31, 2012 is as follows:
Number of Options (000s) |
Wtd. Avg. Exercise Price |
Wtd. Avg. Remaining Contractual Life (Years) |
Aggregate Intrinsic Value (000s) |
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Outstanding at September 30, 2011 |
1,480 | $ | 25.44 | 6.1 | $ | 13,198 | ||||||||||
Granted |
320 | $ | 41.60 | |||||||||||||
Exercised |
(194 | ) | $ | 16.73 | $ | 5,796 | ||||||||||
Forfeited |
(29 | ) | $ | 36.51 | ||||||||||||
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Outstanding at March 31, 2012 |
1,577 | $ | 29.59 | 6.6 | $ | 24,132 | ||||||||||
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Exercisable at March 31, 2012 |
978 | $ | 24.11 | 5.2 | $ | 20,323 | ||||||||||
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Restricted Stock
We have awarded restricted stock under the 2007 Plan to certain employees and to our non-employee directors. All current awards of restricted stock to employees are subject to a vesting and restriction period ranging from three to four years, subject to early termination as provided in the 2007 Plan. In addition, certain awards of restricted stock are subject to market conditions. All awards of restricted stock to non-employee directors are subject to a vesting and restriction period of a minimum of 13 months, subject to early termination as provided in the 2007 Plan. We value restricted stock awards based on the fair market value of our common stock on the date of grant and also adjust fair market value for any awards subject to market conditions, where applicable.
A summary of restricted stock activity for the three months ended March 31, 2012 is as follows:
Number of Shares (000s) |
Wtd. Avg. Fair Value |
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Unvested at September 30, 2011 |
560 | $ | 34.54 | |||||
Granted |
388 | $ | 41.37 | |||||
Vested |
(207 | ) | $ | 33.06 | ||||
Forfeited |
(23 | ) | $ | 38.47 | ||||
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Unvested at March 31, 2012 |
718 | $ | 38.53 | |||||
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10
4. PROPERTY AND EQUIPMENT
A summary of property and equipment by classification is as follows (in thousands):
(In thousands) |
March 31, 2012 |
September 30, 2011 |
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Drilling vessels and equipment |
$ | 1,580,714 | $ | 1,578,592 | ||||
Construction work in progress |
1,061,157 | 736,827 | ||||||
Drill pipe |
18,703 | 18,182 | ||||||
Office equipment and other |
12,750 | 8,800 | ||||||
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Cost |
2,673,324 | 2,342,401 | ||||||
Less: Accumulated depreciation |
(485,853 | ) | (455,080 | ) | ||||
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Drilling and other property and equipment, net |
$ | 2,187,471 | $ | 1,887,321 | ||||
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Property and equipment are recorded at costs. Interest incurred related to property under construction is capitalized as a component of construction costs. Interest capitalized during the six months ended March 31, 2012 and 2011, was approximately $15.9 million and $2.4 million, respectively.
New Construction Projects
As of March 31, 2012, we had expended approximately $1.0 billion towards the construction of our six drilling units currently under construction. Total remaining firm commitments for our six drilling units currently under construction are approximately $1.3 billion.
5. LONG-TERM DEBT
A summary of long-term debt is as follows (in thousands):
March 31, 2012 |
September 30, 2011 |
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Senior Notes, bearing fixed interest at 6.5% per annum |
$ | 450,000 | $ | | ||||
2011 credit facility, bearing interest (market adjustable) at approximately 3.3% per annum at March 31, 2012 and 3.1% per annum at September 30, 2011. |
150,000 | 520,000 | ||||||
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$ | 600,000 | $ | 520,000 | |||||
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Senior Notes
In January 2012, we issued $450 million aggregate principal amount of 6.50% Senior Notes due 2020 (the Notes). We received net proceeds, after deducting underwriting discounts and estimated offering expenses, of approximately $440 million. We used the net proceeds to reduce outstanding borrowings under our 2011 Credit Facility.
11
The Notes are our senior unsecured obligations and are not currently guaranteed by any of our subsidiaries. Interest is payable on the Notes semi-annually in arrears. The indenture governing the Notes contains provisions that limit our ability and the ability of our restricted subsidiaries to incur or guarantee additional indebtedness or issue preferred stock; pay dividends or make other restricted payments; sell assets; make investments; create liens; enter into agreements that restrict dividends or other payments from our restricted subsidiaries to us; and consolidate, merge or transfer all or substantially all of our assets. Many of these restrictions will terminate if the Notes become rated investment grade. The indenture governing the Notes also contains customary events of default, including payment defaults; defaults for failure to comply with other covenants in the indenture; cross-acceleration and entry of final judgments in excess of $50.0 million; and certain events of bankruptcy, in certain cases subject to notice and grace periods. We are required to offer to repurchase the Notes in connection with specified change in control events or with excess proceeds of asset sales not applied for permitted purposes.
2011 Credit Facility
As of March 31, 2012, we had $150 million of outstanding borrowings under our five-year $750 million senior secured revolving credit facility, which we entered into in May 2011. Our subsidiary, Atwood Offshore Worldwide Limited (AOWL), is the borrower under the credit facility, and we and certain of our other subsidiaries are guarantors under the facility. Borrowings under the credit facility bear interest at the Eurodollar rate plus a margin of 2.5% (approximately 3.3% per annum at March 31, 2012, after considering the impact of our interest rate swaps). Certain borrowings effectively bear interest at a fixed rate due to our interest rate swaps. The credit facility also provides for the issuance, when required, of standby letters of credit. The credit facility has a commitment fee of 1.0% per annum on the unused portion of the underlying commitment. Subject to the satisfaction of certain conditions precedent and the agreement by the lenders, the credit facility includes an accordion feature which, if exercised, will increase total commitments by up to $350 million for a total commitment of up to $1.1 billion.
The credit facility contains various financial covenants that impose a maximum leverage ratio of 4.0 to 1.0, a debt to capitalization ratio of 0.5 to 1.0, a minimum interest expense coverage ratio of 3.0 to 1.0 and a minimum collateral maintenance of 150% of the aggregate amount outstanding under the credit facility. In addition, the credit facility contains limitations on our and certain of our subsidiaries ability to incur liens; merge, consolidate or sell substantially all assets; pay dividends (including restrictions on AOWLs ability to pay dividends to us); incur additional indebtedness; make advances, investments or loans; and transact with affiliates. The credit facility also contains customary events of default, including but not limited to delinquent payments, bankruptcy filings, material adverse judgments, guarantees or security documents not being in full effect, non-compliance with the Employee Retirement Income Security Act of 1974, cross-defaults under other debt agreements, or a change of control. The credit facility is secured primarily by first preferred mortgages on six of our active drilling units (the Atwood Aurora, the Atwood Beacon, the Atwood Eagle, the Atwood Falcon, the Atwood Hunter, and the Atwood Osprey), as well as liens on the equity interests of our subsidiaries that own, directly or indirectly, such drilling units. In addition, if the accordion feature is exercised, the credit facility requires that we provide a first preferred mortgage on the Atwood Condor, as well as a lien on the equity interests of our subsidiaries that own, directly or indirectly, the Atwood Condor. We were in compliance with all financial covenants under the credit facility at March 31, 2012.
As of March 31, 2012, we had one interest rate swap agreement in effect to fix the interest rate on $50.0 million of our borrowings under the credit facility at 3.5% through September 2014.
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6. INTEREST RATE SWAPS
Our credit facility exposes us to short-term changes in market interest rates as our interest obligations on these instruments are periodically re-determined based on the prevailing Eurodollar rate. We enter into interest rate swaps to limit our exposure to fluctuations and volatility in interest rates. We do not engage in derivative transactions for speculative or trading purposes and we are not a party to leveraged derivatives.
Currently, we have five executed interest rate swaps covering $250 million of our borrowings under the credit facility. In February 2012, we temporarily suspended four swaps for periods ranging from two to five months due to the repayment of borrowings under the credit facility following the issuance of the Notes. As of March 31, 2012, we had one interest rate swap agreement in effect to fix the interest rate on $50.0 million of our borrowings under the credit facility at 3.5%. The remaining four swaps became or will become active again between April and July 2012. After all swaps are active, the five swaps will fix the interest rate on $250 million of borrowings under the credit facility at a weighted average 3.4% through September 2014.
Fair Value of Derivatives
The following table presents the fair value of our cash flow hedge derivative contracts included in the Consolidated Balance Sheets as of March 31, 2012 and September 30, 2011 (in thousands):
March 31 | September 30 | |||||||||
Type of Contract |
Balance Sheet Classification |
2012 | 2011 | |||||||
Short term interest rate swaps |
Accrued liabilities | $ | 1,289 | $ | 988 | |||||
Long term interest rate swaps |
Other long-term liabilities | 824 | 631 | |||||||
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Total derivative contracts, net |
$ | 2,113 | $ | 1,619 | ||||||
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We record the interest rate derivative contracts at fair value on our consolidated balance sheets (See Note 8). Hedging effectiveness is evaluated each quarter end using the Dollar Off-Set Method. Each quarter, changes in the fair values will adjust the balance sheet asset or a liability, with an offset to Other Comprehensive Income (OCI).
We recognized a loss of approximately $0.6 million in Other Comprehensive Income (OCI) as a result of changes in fair value of our interest rate swaps as of March 31, 2012, net of realized losses incurred via settlement payments throughout the period, and as a result of a loss realized from hedge ineffectiveness.
For interest rate swaps, we evaluate all material terms between the swap and the underlying debt obligation. Any change in fair value resulting from ineffectiveness is recognized immediately in earnings. A $0.4 million loss was recognized during the quarter ended March 31, 2012 due to hedge ineffectiveness.
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7. INCOME TAXES
Our consolidated effective income tax rate for the three and six months ended March 31, 2012 was approximately 6% and 12%, respectively, which includes an approximate $6.4 million tax benefit recognized during the current quarter related to the settlement of a foreign tax examination.
We record estimated accrued interest and penalties related to uncertain tax positions as income tax expense. At March 31, 2012, we had approximately $8.1 million of reserves for uncertain tax positions, including estimated accrued interest and penalties of $2.1 million, which are included in Other Long Term Liabilities in the Consolidated Balance Sheet. None of our reserves for uncertain tax positions relate to timing differences. Accordingly, all $8.1 million of the net uncertain tax liabilities would affect the effective tax rate if recognized.
Our United States tax returns for fiscal year 2008 and subsequent years remain subject to examination by tax authorities. As we conduct business globally, we have various tax years that remain open to examination in various international tax jurisdictions. We do not anticipate that any tax contingencies resolved during the next 12 months will have a material impact on our consolidated financial position, results of operations or cash flows.
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8. FAIR VALUE
We have certain assets and liabilities that are required to be measured and disclosed at fair value in accordance with generally accepted accounting principles (GAAP). Fair value is defined as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date.
The established GAAP fair value hierarchy prioritizes inputs to valuation techniques used to measure fair value into three levels. Priority is given to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1) and the lowest priority to unobservable inputs (Level 3). Assets and liabilities measured at fair value are classified based on the lowest level of input that is significant to the fair value measurement. Our assessment of the significance of a particular input to the fair value measurement requires judgment, which may affect the valuation of the fair value of assets and liabilities and their placement within the fair value hierarchy levels. The determination of the fair values, stated below, takes into account the market for our financial assets and liabilities, the associated credit risk and other considerations.
We have classified and disclosed fair value measurements using the following levels of the fair value hierarchy:
Level 1: Unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted assets or liabilities.
Level 2: Quoted prices in markets that are not active, or inputs which are observable, either directly or indirectly, for substantially the full term of the asset or liability.
Level 3: Measurement based on prices or valuation models that require inputs that are both significant to the fair value measurement and less observable for objective sources (i.e., supported by little or no market activity).
Fair value of Certain Assets and Liabilities
The fair value of cash and cash equivalents, accounts receivable and accounts payable approximate fair value because of their short term maturities.
Fair Value of Financial Instruments
The fair value of financial instruments is determined by using quoted market prices when available. When quoted prices are not available, independent third party services may be used to determine the fair value with reference to observable inputs used. When independent third party services are used, we obtain an understanding of how the fair values are derived and selectively corroborate fair values by reviewing other readily available market based sources of information. Valuation policies and procedures are determined and monitored by our treasury department, which reports to our Senior Vice-President and Chief Financial Officer.
The following table sets forth the estimated fair value of certain financial instruments at March 31, 2012, which are measured and recorded at fair value on a recurring basis:
March 31, 2012 | ||||||||||||||||||||
Fair Value Measurement | ||||||||||||||||||||
Carrying Amount |
Level 1 | Level 2 | Level 3 | Estimated Fair Value |
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Interest rate swaps |
$ | 2,113 | $ | | $ | 2,113 | $ | | $ | 2,113 |
Interest rate swaps - The fair values of our interest rate swaps are based upon valuations calculated by an independent third party. We review other readily available market prices for other similar derivative contracts as there is an active market for these contracts. Based on valuation inputs for fair value measurement, we have classified our derivative contracts as Level 2.
Long-term Debt Our long-term debt consists of both our 6.50% Senior Notes and our 2011 Credit Facility.
2011 Credit Facility The carrying amounts of our variable-rate debt approximates fair value because such debt bears short-term, market-based interest rates. We have classified this instrument as Level 2 as valuation inputs for purposes of determining our fair value disclosure are readily available published Eurodollar rates.
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6.50% Senior Notes The carrying value of our 6.50% Senior Notes is $450 million on the face of our financial statements. The fair value of our 6.50% Senior Notes due 2020, is $472.5 million. We have classified this instrument as Level 2 as valuation inputs for fair value measurements are quoted market prices for our issuance obtained from independent third party sources on March 31, 2012. The fair value amount has been calculated using these quoted prices. However, no assurance can be given that the fair value would be the amount realized in an active market exchange.
9. RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
In May 2011, the Financial Accounting Standards Board issued Accounting Standards Update 2011-04, Fair Value Measurement (Topic 820): Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in U.S. GAAP and IFRS. The amendment clarifies existing fair value measurement and disclosure requirements, amends certain fair value measurement principles and requires additional disclosures about fair value measurements. We adopted the accounting standard effective January 1, 2012, with no material impact to our financial statements or disclosures in our financial statements.
10. COMMITMENTS AND CONTINGENCIES
Litigation
We are party to a number of lawsuits which are ordinary, routine litigation incidental to our business, the outcome of which, individually, or in the aggregate, is not expected to have a material adverse effect on our financial position, results of operations, or cash flows.
Other Matters
The Atwood Beacon operated in India from early December 2006 to the end of July 2009. A service tax was enacted in India in 2004 on revenues derived from seismic and exploration activities. This service tax law was subsequently amended in June 2007 and again in May 2008 to state that revenues derived from mining services and drilling services were specifically subject to this service tax. The contract terms with our customer in India provided that any liability incurred by us related to any taxes pursuant to laws not in effect at the time the contract was executed in 2005 was to be reimbursed by our customer. We believe any service taxes assessed by the Indian tax authorities under the 2007 or 2008 amendments are an obligation of our customer. Our customer is disputing this obligation on the basis that revenues derived from drilling services were taxable under the initial 2004 law, and are, therefore, our obligation.
After reviewing the status of the drilling service we provided to our customer, the Indian tax authorities assessed service tax obligations on revenues derived from the Atwood Beacon commencing on June 1, 2007. The relevant Indian tax authority issued an extensive written ruling setting forth the application of the June 1, 2007 service tax regulation and confirming the position that the drilling services, including the services performed under our contract with our customer prior to June 1, 2007, were not covered by the 2004 service tax law. The ruling of the Indian tax authority is currently subject to the review of the Tax Appeal Tribunal.
As of March 31, 2012, we have paid to the Indian government $10.1 million in service taxes and have accrued $1.8 million of additional service tax obligations in accrued liabilities on our consolidated balance sheets, for a total of $11.9 million relating to service taxes. We have recorded a corresponding $11.9 million long-term other receivable due from our customer relating to service taxes due under the contract. We intend to pursue collection of such amounts from our customer.
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ITEM 2. MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Managements Discussion and Analysis of Financial Condition and Results of Operations should be read in conjunction with the accompanying unaudited condensed consolidated financial statements as of March 31, 2012 and for the three and six months ended March 31, 2012 and 2011 included elsewhere herein, and with our Annual Report on Form 10-K for the fiscal year ended September 30, 2011. The following discussion and analysis contains forward-looking statements that involve risks and uncertainties. Our actual results may differ materially from those anticipated in these forward-looking statements as a result of certain factors, including those set forth under Risk Factors in Item 1A of our Annual Report on Form 10-K for the fiscal year ended September 30, 2011 and elsewhere in this Quarterly Report. See Forward-Looking Statements below.
OVERVIEW
The following discussion is intended to assist in understanding our financial position at March 31, 2012, and our results of operations for the three and six months ended March 31, 2012 and 2011. Financial and operating results for the three ended March 31, 2012, include:
| Operating revenues totaling $172 million on 584 operating days as compared to $159 million on 540 operating days for the three months ended March 31, 2011; |
| Net income of $59 million as compared to $71 million for the three months ended March 31, 2011; |
| Net cash provided by operating activities of $99 million as compared to $89 million for the three months ended March 31, 2011; and |
| Capital expenditures of $140 million as compared to $284 million for the three months ended March 31, 2011. |
MARKET OUTLOOK
Industry Conditions
Offshore drilling activity in the U.S. Gulf of Mexico is approaching levels the industry last experienced in April 2010 prior to the Macondo well incident. The number of drilling permits issued per month has increased steadily as the Bureau of Ocean Energy Management (BOEM) and Bureau of Safety and Environmental Enforcement (BSEE) appear more comfortable with the industrys response to safety and environmental stewardship and the industrys ability to prevent similar future disasters. Although risks remain, including the risks raised by third party environmental lawsuits targeting the permitting process and the risk of the enactment of new drilling regulations, we are encouraged by the level of permitting activity and, absent any significant safety or environmental event, expect drilling activity to continue to increase in the U.S. Gulf of Mexico.
Despite an uneven recovery from the global credit crisis, sustained strong oil prices appear to have motivated our customers to increase their annual exploration and production capital budgets. This increase has resulted in the offshore drilling industry continuing to enjoy strong and increasing marketed rig utilization levels and improving day rates across all rig segments. These positive conditions are particularly apparent in the ultra-deepwater segment where, due to numerous recent contract awards, there is no available rig capacity for the remainder of 2012. Conversely, however, high oil prices which result in higher gasoline and fuel prices in the U.S. and
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internationally may impede future economic growth. Any significant slowdown in global economic growth could result in an excess of oil supply over demand which may lead to lower oil prices in the future and may negatively impact the offshore drilling industry.
During the past quarter, additions to rig capacity have slowed significantly. This slowdown is primarily the result of having a limited number of offshore drilling contractors which already have 40 uncontracted floating rigs under construction, a lack of visibility as to the sustainability of the global economic recovery due to the continuation of European sovereign issues and the slowdown of GDP growth in China, and the reduction in available financing for speculative new build orders. For example, since the beginning of 2012, only four floating rigs (excluding Norwegian harsh-environment vessels and those ordered by Sete Brasil) and two jack-ups have been ordered. This decrease in the level of new build orders together with the ongoing slowdown in the shipping industry, has resulted in new build rigs prices remaining attractive as compared to new build prices during previous market cycles.
Deepwater and Ultra-deepwater
Deepwater rig utilization increased from 94% to 98% during the quarter ended March 31, 2012, while ultra-deepwater utilization remains effectively at full utilization. The near term shortage of ultra-deepwater rigs has driven recent day rates fixtures above $650,000 for ultra-deepwater rigs with 2012 availability and to approximately $550,000 for rigs with 2013 availability. Day rates for deepwater rigs have risen to above $400,000 for recent fixtures.
The Atwood Condor, a dynamically positioned, 10,000 foot water depth ultra-deepwater semisubmersible, is on schedule to be delivered from the Jurong shipyard in early July 2012 at a total cost, including project management, drilling, handling tools and spares, of approximately $750 million. The Atwood Condor is contracted to Hess Corporation for 21 months in the U.S. Gulf of Mexico directly after mobilization from Singapore.
In April 2012, the Atwood Osprey, a moored 8,200 foot water depth ultra-deepwater semisubmersible, entered into a three-year extension of its contract with Chevron in Australia and is now contracted through mid-2017. The Atwood Eagle and Atwood Falcon, both deepwater semisubmersibles, are contracted through the second quarter of fiscal year 2014 and the first quarter of fiscal year 2015, respectively. The Atwood Falcon is currently at the SembCorp Marine shipyard in Singapore completing contract specific upgrades and other maintenance activities and is expected to commence its contract in Australia with Apache Corporation in June 2012. Finally, the Atwood Hunter, a deepwater semisubmersible, will complete its four-year contract with Noble Energy and Kosmos in October 2012. Thereafter the rig will proceed to a shipyard in Cameroon for 30 days to complete regulatory survey work and general maintenance activities. In April 2012, we signed a three well contract with Noble Energy which we expect to provide work into April 2013.
The Atwood Advantage, a DP-3 dynamically-positioned, dual derrick, ultra-deepwater drillship rated to operate in water depths up to 12,000 feet, is currently under construction at the DSME shipyard in South Korea. The Atwood Advantage will have enhanced technical capabilities, including a seven-ram blowout preventer (BOP), the ability to have two BOPs, three 100-ton knuckle boom cranes, a 165-ton active heave tree-running knuckle boom crane and 200 person accommodations. The Atwood Advantage is expected to be delivered in September 2013 at a total cost, including project management, drilling and handling tools and spares, of approximately $600 million.
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The Atwood Achiever, which is also currently under construction at the DSME shipyard in South Korea, is identical in all material respects to the Atwood Advantage. The Atwood Achiever is scheduled for delivery in June 2014 at a total cost, including project management, drilling and handling tools and spares, of approximately $600 million.
We have until July 31, 2012 to exercise our option to build an additional ultra-deepwater drillship with DSME. At this time, we have made no determination as to whether we will exercise this option.
Although we currently do not have drilling contracts for the Atwood Advantage or the Atwood Achiever, we expect that the demand for ultra-deepwater drilling capacity in established and emerging basins should provide us with opportunities to contract these two rigs prior to their delivery dates.
As of March 31, 2012, we had invested approximately $937 million toward the construction of our three ultra-deepwater drilling units currently under construction.
Jack-ups
Although the bifurcation in day rates and utilization levels between standard and higher specification jack-up rigs has narrowed slightly from previous quarters, exploration and production companies appear to be willing to continue to pay higher day rates for higher specification equipment. Currently, higher specification jack-up rigs are achieving marketed utilization levels of approximately 94% as compared to 90% for the remainder of the global jack-up fleet. Higher specification rigs continue to represent less than 30% of the global jack-up fleet. We expect this bifurcation trend to become more accentuated in the remainder of 2012 as the majority of the older standard rigs are now contracted. There are currently 55 uncontracted high specification new build rigs scheduled for delivery through 2014.
Currently, the Atwood Aurora is contracted through October 2012 while the Atwood Beacon is contracted through February 2013. The Vicksburg, our only standard jack-up, is contracted through December 2012. Due to market bifurcation for high-specification jack-ups, we expect the Atwood Beacon and the Atwood Aurora to be contracted at higher day rates upon contract renewal in 2013.
We currently have three Pacific Class 400 high-specification jack-up drilling units, the Atwood Mako, the Atwood Manta and the Atwood Orca, under construction at the PPL Shipyard Pte. Ltd. (PPL) shipyard in Singapore. These new rigs will have a rated water depth of 400 feet, accommodations for 150 personnel and significant offline handling features. The three rigs are expected to cost approximately $190 million each, including project management, drilling, handling tools and spares and capitalized interest, and are scheduled for delivery in September 2012, December 2012 and June 2013, respectively. These three rigs are currently ahead of their construction schedules with the Atwood Mako expected to be delivered two weeks ahead of schedule.
The Atwood Mako is contracted to Salamander in Thailand under a one-year contract directly after mobilization from the shipyard in Singapore and is expected to begin work in mid-September. We expect to contract the remaining two new build jack-up rigs prior to their delivery dates due to the preference of customers for these newer, more capable high-specification assets.
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As of March 31, 2012, we had invested approximately $113 million toward the construction of our three jack-up units currently under construction.
Idled Rigs
During fiscal year 2010, the Atwood Southern Cross, Richmond and Seahawk completed their drilling contracts and were subsequently idled. In March 2012, we entered into an agreement to sell the Richmond for approximately $7.0 million which approximates book value at March 31, 2012. We expect this sale to close in the third quarter of fiscal year 2012. With respect to the remaining two idled rigs, we do not anticipate these units returning to service during fiscal year 2012 due to the lack of sufficient continuous demand. Neither rig is being actively marketed at this time.
Contract Backlog
We maintain a backlog of commitments for contract drilling revenues. Our contract backlog at March 31, 2012 was approximately $1.6 billion, representing a 45% increase compared to our contract backlog of $1.1 billion at March 31, 2011. We calculate our contract backlog by multiplying the day rate under our drilling contracts by the number of days remaining under the contract, assuming full utilization. The calculation does not include any revenues related to other fees such as for mobilization, demobilization, contract preparation, customer reimbursables and bonuses. The amount of actual revenues earned and the actual periods during which revenues are earned will be different from the amounts disclosed in our backlog calculations due to various factors, including unscheduled repairs, maintenance, weather and other factors. Such factors may result in lower applicable day rates than the full contractual day rate. In addition, under certain circumstances, our customers may seek to terminate or renegotiate our contracts. See Risks Related to our BusinessOur business may experience reduced profitability if our customers terminate or seek to renegotiate our drilling contracts under Part I., Item 1A. in our Annual Report on Form 10-K for the fiscal year ended September 30, 2011.
The following table sets forth, as of March 31, 2012, the amount of our contract drilling revenue backlog and the percent of available operating days committed for our actively-marketed drilling units for the periods indicated (dollars in millions):
Fiscal 2012 |
Fiscal 2013 |
Fiscal 2014 |
Fiscal 2015 |
Total | ||||||||||||||||
Contract Drilling Revenue Backlog |
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Ultradeepwater and Deepwater |
$ | 337 | $ | 705 | $ | 473 | $ | 24 | $ | 1,539 | ||||||||||
Jack-ups |
64 | 31 | | | 95 | |||||||||||||||
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$ | 401 | $ | 736 | $ | 473 | $ | 24 | $ | 1,634 | |||||||||||
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Percent of Available Operating Days Committed |
100 | % | 56 | % | 24 | % | 1 | % |
As mentioned previously, during April 2012, we announced a three-year contract extension for the Atwood Osprey and a three well contract for the Atwood Hunter which has increased our contract backlog to approximately $2.2 billion as of April 30, 2012.
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RESULTS OF OPERATIONS
Operating RevenuesRevenues for the three months and six months ended March 31, 2012 increased approximately $12.5 million, or 8%, and $50.9 million, or 17%, respectively, compared to the three and six months ended March 31, 2011. A comparative analysis of revenues is as follows:
REVENUES | ||||||||||||||||||||||||
(In millions) | ||||||||||||||||||||||||
Three Months Ended March 31, | Six Months Ended March 31, | |||||||||||||||||||||||
2012 | 2011 | Variance | 2012 | 2011 | Variance | |||||||||||||||||||
Atwood Osprey |
$ | 38.5 | $ | | $ | 38.5 | $ | 79.4 | $ | | $ | 79.4 | ||||||||||||
Atwood Aurora |
13.0 | 11.7 | 1.3 | 25.7 | 22.4 | 3.3 | ||||||||||||||||||
Atwood Hunter |
50.6 | 50.0 | 0.6 | 95.3 | 99.8 | (4.5 | ) | |||||||||||||||||
Atwood Beacon |
11.5 | 11.2 | 0.3 | 23.0 | 21.9 | 1.1 | ||||||||||||||||||
Vicksburg |
8.8 | 8.7 | 0.1 | 17.9 | 16.8 | 1.1 | ||||||||||||||||||
Atwood Eagle |
35.1 | 38.0 | (2.9 | ) | 70.6 | 64.9 | 5.7 | |||||||||||||||||
Atwood Falcon |
14.1 | 39.5 | (25.4 | ) | 44.4 | 79.6 | (35.2 | ) | ||||||||||||||||
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$ | 171.6 | $ | 159.1 | $ | 12.5 | $ | 356.3 | $ | 305.4 | $ | 50.9 | |||||||||||||
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Our newest active drilling rig, the Atwood Osprey, commenced drilling operations in late May 2011 offshore Australia, and thus, earned no revenue in the prior fiscal periods.
The increase in revenues for the Atwood Aurora is due to the rig working on a higher day rate contract during the three and six months ended March 31, 2012, as compared to the prior fiscal periods. The rig worked offshore Egypt through most of fiscal year 2011 and relocated in late September 2011 to work offshore West Africa.
Revenues for the Atwood Hunter, Atwood Beacon and Atwood Vicksburg remained relatively consistent during the three months ended March 31, 2012 when compared to the prior fiscal periods. Revenues for the Atwood Beacon and Atwood Vicksburg remained relatively consistent during the six months ended March 31, 2012 when compared to the prior fiscal periods. Revenues decreased for the Atwood Hunter for the six months ended March 31, 2012 when compared to the prior fiscal period due to lower revenue efficiency.
The decrease in revenues for the Atwood Eagle during the three months ended March 31, 2012 is due primarily to the rig working on a lower day rate contract as compared to the prior fiscal period. Revenues were lower for the six months ended March 31, 2011 for the Atwood Eagle due to an extended downtime period for regulatory inspections during the prior fiscal period.
The decrease in revenues for the Atwood Falcon during the three and six months ended March 31, 2012 is due primarily to the rig working at a lower day rate when compared to the prior fiscal period and the rig undergoing a shipyard upgrade project commencing in February 2012.
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Contract Drilling CostsContract drilling costs for the three and six months ended March 31, 2012, increased approximately $28.9 million, or 57%, and $49.0 million, or 45%, respectively, compared to the three and six months ended March 31, 2011. An analysis of contract drilling costs by rig is as follows:
CONTRACT DRILLING COSTS | ||||||||||||||||||||||||
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Three Months Ended March 31, | Six Months Ended March 31, | |||||||||||||||||||||||
2012 | 2011 | Variance | 2012 | 2011 | Variance | |||||||||||||||||||
Atwood Osprey |
$ | 16.3 | $ | | $ | 16.3 | $ | 32.2 | $ | | $ | 32.2 | ||||||||||||
Atwood Hunter |
13.6 | 8.6 | 5.0 | 25.9 | 18.8 | 7.1 | ||||||||||||||||||
Atwood Falcon |
12.2 | 7.4 | 4.8 | 20.4 | 15.1 | 5.3 | ||||||||||||||||||
Atwood Aurora |
8.4 | 5.5 | 2.9 | 17.2 | 10.9 | 6.3 | ||||||||||||||||||
Atwood Beacon |
8.5 | 7.5 | 1.0 | 15.9 | 16.4 | (0.5 | ) | |||||||||||||||||
Vicksburg |
5.1 | 4.2 | 0.9 | 10.4 | 8.3 | 2.1 | ||||||||||||||||||
Atwood Eagle |
14.6 | 15.7 | (1.1 | ) | 32.8 | 32.7 | 0.1 | |||||||||||||||||
Other |
0.6 | 1.5 | (0.9 | ) | 2.9 | 6.5 | (3.6 | ) | ||||||||||||||||
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$ | 79.3 | $ | 50.4 | $ | 28.9 | $ | 157.7 | $ | 108.7 | $ | 49.0 | |||||||||||||
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Our newest active drilling rig, the Atwood Osprey, commenced drilling operations in late May 2011 offshore Australia, and, therefore, had no contract drilling costs in the prior fiscal periods. Costs should remain relatively consistent during the second half of the fiscal year when compared to first half of the fiscal year.
The increase in contract drilling costs for the Atwood Hunter for the three and six months ended March 31, 2012 is due primarily to increased equipment related costs associated with maintenance projects as compared to the prior fiscal periods. We expect costs to moderate during the second half of the fiscal year.
The increase in contract drilling costs for the Atwood Falcon for the three and six months ended March 31, 2012 is due to its current shipyard project for contract upgrades and maintenance activities.
The increase in contract drilling costs for the Atwood Aurora for the three and six months ended March 31, 2012 is attributable primarily to increased costs for monthly amortization charges for mobilization of the rig from Italy to Equatorial Guinea and personnel costs due to the remote location of the rig offshore West Africa. We expect costs to moderate during the second half of the fiscal year.
The increase in contract drilling costs for the Atwood Beacon for the three months ended March 31, 2012 is due primarily to increased equipment related costs associated with maintenance projects performed as compared to the prior fiscal period. Drilling costs for the Atwood Beacon for the six months ended March 31, 2012 were relatively consistent with the same prior fiscal year period and should remain relatively consistent during the second half of the fiscal year.
The increase in contract drilling costs for the Vicksburg for the three months and six months ended March 31, 2012 is attributable primarily to increased equipment costs related to a planned regulatory inspection and general increased equipment related costs associated with maintenance projects as compared to the prior fiscal year periods. Costs should remain relatively consistent during the second half of the fiscal year when compared to first half of the fiscal year.
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Drilling costs for the Atwood Eagle remained relatively consistent compared to the prior fiscal periods and should remain relatively consistent during the second half of the fiscal year.
Other drilling costs for the three and six months ended March 31, 2012 decreased due primarily to lower operating costs incurred for our three stacked rigs during the current fiscal year.
DepreciationDepreciation expense for the three months and six months ended March 31, 2012 increased approximately $6.6 million, or 75%, and $13.2 million, or 75%, respectively, compared to the three and six months ended March 31, 2011. A comparative analysis of depreciation expense by rig is as follows:
DEPRECIATION EXPENSE | ||||||||||||||||||||||||
(In millions) | ||||||||||||||||||||||||
Three Months Ended March 31, | Six Months Ended March 31, | |||||||||||||||||||||||
2012 | 2011 | Variance | 2012 | 2011 | Variance | |||||||||||||||||||
Atwood Opsrey |
$ | 6.2 | $ | | $ | 6.2 | $ | 12.4 | $ | | $ | 12.4 | ||||||||||||
Atwood Eagle |
1.4 | 1.2 | 0.2 | 2.7 | 2.4 | 0.3 | ||||||||||||||||||
Atwood Beacon |
1.2 | 1.1 | 0.1 | 2.4 | 2.3 | 0.1 | ||||||||||||||||||
Atwood Aurora |
1.9 | 1.8 | 0.1 | 3.8 | 3.7 | 0.1 | ||||||||||||||||||
Atwood Hunter |
1.6 | 1.6 | | 3.2 | 3.2 | | ||||||||||||||||||
Atwood Falcon |
1.3 | 1.3 | | 2.6 | 2.6 | | ||||||||||||||||||
Vicksburg |
0.5 | 0.5 | | 1.0 | 1.0 | | ||||||||||||||||||
Other |
1.3 | 1.3 | | 2.6 | 2.4 | 0.2 | ||||||||||||||||||
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$ | 15.4 | $ | 8.8 | $ | 6.6 | $ | 30.8 | $ | 17.6 | $ | 13.2 | |||||||||||||
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The Atwood Osprey, which was placed into service in late May 2011, incurred no depreciation expense in the prior fiscal year periods.
Depreciation expense for all other rigs has remained relatively consistent during the three and six months ended March 31, 2012, when compared to the prior fiscal year periods.
General and AdministrativeFor the three and six months ended March 31, 2012, general and administrative expenses increased by approximately $2.5 million, or 27%, and $0.9 million, or 4%, respectively, compared to the three and six months ended March 31, 2011, primarily due to increased compensation costs related to an increase in support personnel, which was partially offset by higher expenses in the prior fiscal periods in connection with transition of executive leadership.
Income TaxesOur effective tax rate was 6% and 12% for the three and six months ended March 31, 2012, respectively, compared to 22% and 20% for the three and six months ended March 31, 2011, respectively. The effective tax rates were lower due in part to an approximate $6.4 million tax benefit recognized during the three months ended March 31, 2012 related to the settlement of a foreign tax examination. Additionally, the rates from the prior fiscal periods included a $6.1 million increase in our liability for uncertain tax positions. Our effective tax rates were lower than the statutory rate of 35% as a result of working in certain foreign nontaxable and deemed profit tax jurisdictions.
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LIQUIDITY AND CAPITAL RESOURCES
Capital expenditures totaled $397 million for the six months ended March 31, 2012. During the six months ended March 31, 2012, our capital expenditures and working capital needs were funded by cash flows from operations, borrowings under our credit facility and a reduction of cash and cash equivalents. The reduction in cash and cash equivalents was partially offset by a decrease in accounts payable of $55 million, resulting in a decrease in our working capital to $196 million as of March 31, 2012 from $302 million as of September 30, 2011.
To date, general inflationary trends have not had a material effect on our operating revenues or expenses.
Revolving Credit Facility
As of March 31, 2012, we had $150 million of outstanding borrowings under our five-year $750 million senior secured revolving credit facility. Including the $450 million aggregate principal amount of our senior notes, we had a total debt to capitalization ratio of 25%. As of May 1, 2012, no additional funds had been borrowed under our credit facility subsequent to March 31, 2012. Our subsidiary, Atwood Offshore Worldwide Limited (AOWL), is the borrower under the credit facility, and we and certain of our other subsidiaries are guarantors under the facility. Borrowings under the credit facility bear interest at the Eurodollar rate plus a margin of 2.50% (approximately 3.3% per annum at March 31, 2012, after considering the impact of our interest rate swaps). Certain borrowings effectively bear interest at a fixed rate due to our interest rate swaps. The credit facility also provides for the issuance, when required, of standby letters of credit. The credit facility has a commitment fee of 1.0% per annum on the unused portion of the underlying commitment. Subject to the satisfaction of certain conditions precedent and the agreement by the lenders, the credit facility includes an accordion feature which, if exercised, will increase total commitments by up to $350 million for a total commitment of up to $1.1 billion.
The credit facility contains various financial covenants that impose a maximum leverage ratio of 4.0 to 1.0, a debt to capitalization ratio of 0.5 to 1.0, a minimum interest expense coverage ratio of 3.0 to 1.0 and a minimum collateral maintenance of 150% of the aggregate amount outstanding under the credit facility. In addition, the credit facility contains limitations on our and certain of our subsidiaries ability to incur liens; merge, consolidate or sell substantially all assets; pay dividends (including restrictions on AOWLs ability to pay dividends to us); incur additional indebtedness; make advances, investments or loans; and transact with affiliates. The credit facility also contains customary events of default, including but not limited to delinquent payments, bankruptcy filings, material adverse judgments, guarantees or security documents not being in full effect, non-compliance with the Employee Retirement Income Security Act of 1974, cross-defaults under other debt agreements, or a change of control. The credit facility is secured primarily by first preferred mortgages on six of our active drilling units (the Atwood Aurora, the Atwood Beacon, the Atwood Eagle, the Atwood Falcon, the Atwood Hunter, and the Atwood Osprey), as well as liens on the equity interests of our subsidiaries that own, directly or indirectly, such drilling units. In addition, if the accordion feature is exercised, the credit facility requires that we provide a first preferred mortgage on the Atwood Condor, as well as a lien on the equity interests of our subsidiaries that own, directly or indirectly, the Atwood Condor. We were in compliance with all financial covenants under the credit facility at March 31, 2012.
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Senior Notes
In January 2012, we issued $450 million aggregate principal amount of 6.50% Senior Notes due 2020 (the Notes). We received net proceeds, after deducting underwriting discounts and estimated offering expenses, of approximately $440 million. We used the net proceeds to reduce outstanding borrowings under our credit facility.
The Notes are our senior unsecured obligations and are not initially guaranteed by any of our subsidiaries. Interest is payable on the Notes semiannually in arrears. The indenture governing the Notes contains provisions that limit our ability and the ability of our restricted subsidiaries to incur or guarantee additional indebtedness or issue preferred stock; pay dividends or make other restricted payments; sell assets; make investments; create liens; enter into agreements that restrict dividends or other payments from our restricted subsidiaries to us; and consolidate, merge or transfer all or substantially all of our assets. Many of these restrictions will terminate if the Notes become rated investment grade. The indenture governing the Notes also contains customary events of default, including payment defaults; defaults for failure to comply with other covenants in the indenture; cross-acceleration and entry of final judgments in excess of $50.0 million; and certain events of bankruptcy, in certain cases subject to notice and grace periods. We are required to offer to repurchase the Notes in connection with specified change in control events or with excess proceeds of asset sales not applied for permitted purposes.
Capital Expenditures
We estimate that our total capital expenditures, including maintenance capital expenditures, for fiscal year 2012 will be approximately $780 million, substantially all of which is contractually committed. As of March 31, 2012, we had incurred approximately $397 million of our total expected capital expenditures. The remaining capital expenditures are expected to be funded with existing cash balances on hand, cash flows from operations and additional borrowings under our credit facility.
As of March 31, 2012, we had expended approximately $1.0 billion on our six drilling units under construction at that time. The expected remaining costs for our six drilling units currently under construction are as follows (in millions):
Remaining Fiscal 2012 |
Fiscal 2013 |
Fiscal 2014 |
Fiscal 2015 |
Total | ||||||||||||||
$334 | $ | 362 | $ | 805 | $ | | $ | 1,501 |
With the issuance of the Notes in January 2012, we believe that we will be able to fund all additional construction costs with cash on hand, cash flow from operations and borrowings under our revolving credit facility, which has provisions to increase the total commitment to $1.1 billion as described above.
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Other
From time to time, we may seek possible expansion and acquisition opportunities relating to our business, which may include the construction or acquisition of rigs or other businesses in addition to those described in this Quarterly Report. Such determinations will depend on market conditions and opportunities existing at that time, including with respect to the market for drilling contracts and day rates and the relative costs associated with such expansions or acquisitions. The timing, success or terms of any such efforts and the associated capital commitments are not currently known. In addition to cash on hand, cash flow from operations and borrowings under our revolving credit facility, we may seek to access the capital markets to fund such opportunities. Our ability to access the capital markets depends on a number of factors, including, among others, our credit rating, industry conditions, general economic conditions, market conditions and market perceptions of us and our industry. In addition, we continually review the possibility of disposing of assets that we do not consider core to our long-term business plan.
In addition, in the future, we may seek to redeploy our assets to more active regions if we have the opportunity to do so on attractive terms. We frequently bid for or negotiate with customers regarding multi-year contracts that could require significant capital expenditures and mobilization costs. We expect to fund these opportunities primarily with cash on hand, cash flow from operations and borrowings under our revolving credit facility.
Off-Balance Sheet Arrangements
We have no off-balance sheet arrangements as that term is defined in Item 303(a)(4)(ii) of Regulation S-K.
Commitments and Contractual Obligations
For additional information about our commitments and contractual obligations as of September 30, 2011, see Managements Discussion and Analysis of Financial Condition and Results of OperationsCommitments and Contractual Obligations in our Annual Report to Shareholders for fiscal year 2011, filed as exhibit 13.1 to our Annual Report on Form 10-K for the fiscal year ended September 30, 2011. As of March 31, 2012, other than with respect to the issuance of the Notes and the repayment of borrowings under our credit facility with the net proceeds, there were no material changes to this disclosure regarding our commitments and contractual obligations.
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FORWARD-LOOKING STATEMENTS
Statements included in this quarterly report regarding future financial performance, capital sources and results of operations and other statements, other than statements of historical fact, that address activities, events or developments that we expect, believe or anticipate will or may occur in the future are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, and Section 21E of the Securities Exchange Act of 1934. Such statements are those concerning strategic plans, expectations and objectives for future operations and performance. When used in this report, the words believes, expects, anticipates, plans, intends, estimates, projects, could, should, may, or similar expressions are intended to be among the statements that identify forward-looking statements.
Such statements are subject to numerous risks, uncertainties and assumptions that are beyond our ability to control, including, but not limited to:
| prices of oil and natural gas and industry expectations about future prices; |
| market conditions, expansion and other development trends in the drilling industry and the global economy in general; |
| the operational risks involved in drilling for oil and gas; |
| the highly competitive and volatile nature of our business; |
| the impact of governmental or industry regulation, both in the United States and internationally; |
| the risks of and disruptions to international operations, including political instability and the impact of terrorist acts, acts of piracy, embargoes, war or other military operations; |
| our ability to enter into, and the terms of, future drilling contracts, including contracts for our new build units; |
| our ability to retain the business of one or more significant customers; |
| our ability to obtain and retain qualified personnel to operate our vessels; |
| timely access to spare parts, equipment and personnel to maintain and service our fleet; |
| the termination or renegotiation of contracts by customers or payment or other delays by our customers; |
| customer requirements for drilling capacity and customer drilling plans; |
| the adequacy of sources of liquidity for us and for our customers; |
| changes in tax laws, treaties and regulations; |
| the risks involved in the construction, upgrade, and repair of our drilling units; |
| unplanned downtime and repairs on our rigs; and |
| such other risks discussed in Part I, Item 1A. Risk Factors in our Form 10-K for fiscal year 2011 and in our other reports filed with the SEC. |
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Forward-looking statements are made based upon managements current plans, expectations, estimates, assumptions and beliefs concerning future events impacting us and therefore involve a number of risks and uncertainties. We caution that forward-looking statements are not guarantees and that actual results could differ materially from those expressed or implied in the forward-looking statements. Undue reliance should not be placed on these forward-looking statements, which are applicable only on the date hereof. We undertake no obligation to revise or update these forward-looking statements to reflect events or circumstances that arise after the date hereof or to reflect the occurrence of unanticipated events.
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ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We are exposed to market risk, interest rate risk and foreign currency exchange risk as discussed below:
Interest Rate Risk
The provisions of our credit facility provide for a variable interest rate cost on our $150 million outstanding as of March 31, 2012. However, we employed an interest rate risk management strategy that utilizes derivative instruments with respect to $50 million as of March 31, 2012 in order to minimize or eliminate unanticipated fluctuations in earnings and cash flows arising from changes in, and volatility of, interest rates. Effectively, only $100 million of our variable long-term debt outstanding at March 31, 2012 is subject to changes in interest rates. Thus, a 10% change in the interest rate on the floating rate debt would have an immaterial impact on our annual earnings and cash flows.
Foreign Currency Risk
As a multinational company, we conduct business in numerous foreign countries. Our functional currency is the U.S. dollar. Certain of our subsidiaries have monetary assets and liabilities that are denominated in a currency other than our functional currency. Based on March 31, 2012 amounts, a decrease in the value of 10% in foreign currencies relative to the U.S. dollar would have an immaterial effect to our annual earnings and cash flows. We did not have any open derivative contracts relating to foreign currencies at March 31, 2012.
Market Risk
Our Senior Notes due 2020 are maintained at a fixed interest rate whose fair value will fluctuate based on changes in prevailing market interest rates and market perceptions of our credit risk. The fair value of those notes was approximately $473 million at March 31, 2012.
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ITEM 4. CONTROLS AND PROCEDURES
(a) | Evaluation of Disclosure Controls and Procedures |
Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of our disclosure controls and procedures as of the end of the period covered by this report. Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures as of the end of the period covered by this report have been designed and are effective at the reasonable assurance level so that the information required to be disclosed by us in our periodic SEC filings is recorded, processed, summarized and reported within the time periods specified in the SECs rules, regulations and forms and have been accumulated and communicated to our management, including executive and financial officers, as appropriate, to allow timely decisions regarding required disclosures. We believe that a controls system, no matter how well designed and operated, cannot provide absolute assurance that the objectives of the controls system are met, and no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within a company have been detected.
(b) | Changes in Internal Control over Financial Reporting |
No change in our internal control over financial reporting occurred during the most recent fiscal quarter covered by this report that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
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We have certain actions, claims and other matters pending as set forth in Note 10 to Unaudited Condensed Consolidated Financial Statements included in Item 1 of Part I of this Quarterly Report, which is incorporated by reference in response to this item. As of March 31, 2012, we were also involved in a number of lawsuits which have arisen in the ordinary course of business and for which we do not expect the liability, if any, resulting from these lawsuits to have a material adverse effect on our current consolidated financial position, results of operations or cash flows. We cannot predict with certainty the outcome or effect of any of these matters described above or any such other proceeding or threatened litigation or legal proceedings. There can be no assurance that our beliefs or expectations as to the outcome or effect of any lawsuit or other matters will prove correct and the eventual outcome of these matters could materially differ from managements current estimates.
For additional information about our risk factors, see Item 1A of our Annual Report on Form 10-K for the fiscal year ended September 30, 2011.
In March 2012, our board of directors approved a standard form of indemnification agreement to be entered into by each of our directors and executive officers. The indemnification agreement generally provides that we will, to the fullest extent permitted by applicable law, indemnify an indemnitee that, by reason of the fact that the indemnitee is or was a director or officer or serving in another specified capacity at our request, is or is threatened to be made a party to or a participant in any civil, criminal, administrative or investigative proceeding (other than proceedings by or in the right of our company) against all expenses, judgments, fines, penalties and amounts paid in settlement actually and reasonably incurred by the indemnitee in connection with any such proceeding. The indemnity agreement also provides that we will, to the fullest extent permitted by applicable law, advance to an indemnitee reasonable expenses incurred in connection with any such proceeding to which he is a party and is successful on the merits or otherwise. The rights provided by the indemnification agreement will be in addition to any other rights to indemnification or advancement of expenses to which the indemnitee may be entitled under applicable law or our bylaws.
(a) | Exhibits |
4.1 | Indenture dated January 18, 2012 between Atwood Oceanics, Inc. and Wells Fargo Bank, National Association, as trustee, relating to senior debt securities (Incorporated herein by reference to Exhibit 4.1 of our Form 10-Q for the quarter ended December 31, 2011). |
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4.2 | First Supplemental Indenture dated January 18, 2012 between Atwood Oceanics, Inc. and Wells Fargo Bank, National Association, as trustee, including the form of 6.50% Senior Note due 2020 (Incorporated herein by reference to Exhibit 4.2 of our Form 10-Q for the quarter ended December 31, 2011). | |
*10.1 | Form of Indemnification Agreement for Directors and Executive Officers. | |
*10.2 | Atwood Oceanics, Inc. Restricted Stock Agreement with Robert J. Saltiel dated December 15, 2009. | |
*10.3 | Atwood Oceanics, Inc. Amended and Restated Restricted Stock Agreement with Robert J. Saltiel dated December 21, 2010. | |
*10.4 | Atwood Oceanics, Inc. Clarifying Amendment to Restricted Stock Award with Robert J. Saltiel dated April 20, 2012. | |
*10.5 | Atwood Oceanics, Inc. Restricted Stock Agreement with Mark Mey dated August 11, 2010. | |
*10.6 | Atwood Oceanics, Inc. Amended and Restated Restricted Stock Agreement with Mark Mey dated December 21, 2010. | |
*10.7 | Atwood Oceanics, Inc. Clarifying Amendment to Restricted Stock Award with Mark Mey dated April 20, 2012. | |
10.8 | Second Amendment to Credit Agreement, dated January 18, 2012 among Atwood Oceanics, Inc., Atwood Offshore Worldwide Limited, various lenders and Nordea Bank Finland Plc, New York Branch (Incorporated herein by reference to Exhibit 10.1 of our Form 10-Q for the quarter ended December 31, 2011). | |
*31.1 | Certification of Chief Executive Officer. | |
*31.2 | Certification of Chief Financial Officer. | |
**32.1 | Certificate of Chief Executive Officer pursuant to Section 906 of Sarbanes Oxley Act of 2002. | |
**32.2 | Certificate of Chief Financial Officer pursuant to Section 906 of Sarbanes Oxley Act of 2002. | |
**101 | Interactive data files. |
* | Filed herewith |
** | Furnished herewith |
| Management contract or compensatory plan or arrangement |
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Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
ATWOOD OCEANICS, INC. (Registrant) | ||||||
Date: May 4, 2012 | /S/ MARK L. MEY | |||||
Mark L. Mey | ||||||
Senior Vice President and Chief Financial Officer |
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Exhibit 10.1
ATWOOD OCEANICS, INC.
INDEMNIFICATION AGREEMENT
This Agreement (Agreement) is made and entered into as of the day of , 2012, by and between Atwood Oceanics, Inc., a Texas corporation (the Corporation), and [ ] (Indemnitee).
RECITALS
A. Highly competent persons are becoming more reluctant to serve corporations as directors or executive officers or in other capacities unless they are provided with adequate protection through insurance, indemnification or both against claims and actions against them arising out of their service to and activities on behalf of the corporation.
B. The Board of Directors of the Corporation (the Board) has determined that the inability to attract and retain such persons would be detrimental to the best interests of the Corporation and its shareholders and that the Corporation should act to assure such persons that there will be increased certainty of such protection in the future.
C. The Board has also determined that it is reasonable, prudent and necessary for the Corporation, in addition to purchasing and maintaining directors and officers liability insurance, contractually to obligate itself to indemnify such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Corporation free from undue concern that they will not be so indemnified.
D. Indemnitee is willing to serve, continue to serve and take on additional service for or on behalf of the Corporation on the condition that Indemnitee be so indemnified to the fullest extent permitted by law.
E. The Corporations Second Amended and Restated By-Laws (Article IV, Section 3 et seq.) authorize and require the Corporation to indemnify and advance expenses to, among others, its directors and officers to the maximum extent permitted by the Texas Business Organizations Code. The rights in this Agreement are intended to be in addition to those provided in the By-Laws of the Corporation.
In consideration of the foregoing and the mutual covenants herein contained, and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
Certain Definitions
As used herein, the following words and terms shall have the following respective meanings (whether singular or plural):
Change in Control means the occurrence of any one or more of the following:
(i) the acquisition by any person (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 40% or more of either (i) the then outstanding shares of common stock of the Corporation or (ii) the combined voting power of the then
outstanding voting securities of the Corporation entitled to vote generally in the election of directors, in each case without the prior approval of at least two-thirds of the members of the Board in office immediately prior to such persons acquiring such percentage interest; provided, however, that the following acquisitions shall not constitute a Change of Control: (i) any acquisition directly from the Corporation; (ii) any acquisition by the Corporation or any subsidiary of the Corporation; (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Corporation or any entity controlled by the Corporation; or
(ii) the Corporation shall sell substantially all of its assets to another entity which is not a wholly owned subsidiary of the Corporation; or
(iii) individuals who, as of the date hereof, constitute the Board (the Incumbent Board) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Corporations shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board.
For the purposes of this Agreement, ownership of voting securities shall take into account and shall include ownership as determined by applying the provisions of Rule 13d-3(d)(1)(i) promulgated under the Exchange Act.
Claim means an actual or threatened claim or request for relief.
Corporate Status means the status of a person who is, was or may be deemed to be or to have been a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a partner, director, officer, venturer, proprietor, trustee, employee, administrator, agent, fiduciary or similar functionary of another foreign or domestic corporation, partnership, limited liability company, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise. For purposes of this Agreement, the Corporation agrees that Indemnitees service on behalf of or with respect to any Subsidiary of the Corporation shall be deemed to be at the request of the Corporation.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Expenses means all attorneys fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating or being or preparing to be a witness in a Proceeding.
person shall have the meaning ascribed to such term in Sections 13(d) and 14(d) of the Exchange Act and shall include any partnership, limited partnership, syndicate or group referred to in Section 13(d)(3) or 14(d)(2) of the Exchange Act.
Proceeding means any threatened, pending or completed action, suit, arbitration, demand, investigation, inquiry, alternate dispute resolution mechanism, administrative or legislative hearing, or any other proceeding (including any securities laws
2
action, suit, arbitration, alternative dispute resolution mechanism, hearing or procedure) whether civil, criminal, administrative, arbitrative or investigative and whether or not based upon events occurring, or actions taken, before the date hereof (except one initiated by Indemnitee pursuant to Article VI of this Agreement to enforce Indemnitees rights under this Agreement), and any appeal in or related to any such action, suit, arbitration, investigation, hearing or proceeding and any inquiry or investigation (including discovery), whether conducted by or in the right of the Corporation or any other person, that Indemnitee in good faith believes could lead to any such action, suit, arbitration, alternative dispute resolution mechanism, hearing or other proceeding or appeal thereof.
Special Counsel means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither contemporaneously is, nor in the three years theretofore has been, retained to represent: (a) the Corporation or Indemnitee in any matter material to either such party (other than as Special Counsel under this Agreement or similar agreements), (b) any other party to the Proceeding giving rise to a claim for indemnification hereunder or (c) the beneficial owner, directly or indirectly, of securities of the Corporation representing 40% or more of the combined voting power of the Corporations then outstanding voting securities. Notwithstanding the foregoing, the term Special Counsel shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Corporation or Indemnitee in an action to determine Indemnitees rights under this Agreement.
Subsidiary means any corporation or other entity of which a majority of the voting power of the voting equity securities or equity interest is owned, directly or indirectly, by the Corporation.
TBOC means the Texas Business Organizations Code and any successor statute thereto as either of them may from time to time be amended.
ARTICLE II
Services by Indemnitee
Indemnitee is serving, or agrees to serve, as a director or officer of the Corporation or, at the request of the Corporation, in another capacity for the Corporation or as a partner, director, officer, venturer, proprietor, trustee, employee, administrator, agent, fiduciary or similar functionary of another foreign or domestic corporation, partnership, limited liability company, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise. Indemnitee may from time to time also agree to serve, as the Corporation may request from time to time, in another such capacity or position. Indemnitee and the Corporation each acknowledge that they have entered into this Agreement as a means of inducing Indemnitee to serve, or continue to serve, the Corporation in such capacities. Indemnitee may at any time and for any reason resign from such position or positions (subject to any other contractual obligation or any obligation imposed by operation of law). The Corporation shall have no obligation under this Agreement to continue Indemnitee in any such position or positions.
ARTICLE III
Indemnification
Section 3.1 General. The Corporation shall indemnify, and advance Expenses to, Indemnitee to the fullest extent permitted by applicable law in effect on the date hereof and to such greater extent as applicable law may hereafter from time to time permit. The provisions set forth in this Agreement are provided in addition to and as a means of furtherance and implementation of, and not in limitation of, the obligations expressed in this Article III. No requirement, condition to or limitation of any right to indemnification under this Article III, or to advancement of Expenses under Articles III and IV, shall in any way limit the rights of Indemnitee under Section 7.3.
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Section 3.2 Additional Indemnity of the Corporation. Indemnitee shall be entitled to indemnification pursuant to this Section 3.2 if, by reason of his Corporate Status, he is, or is threatened to be made, a party to any Proceeding (except to the extent limited by Section 3.3). Pursuant to this Section 3.2, Indemnitee shall be indemnified against Expenses, judgments, penalties (including excise or similar taxes), fines and amounts paid in settlement actually and reasonably incurred by him or on his behalf in connection with such Proceeding or any Claim therein, if Indemnitee (1) acted in good faith; (2) reasonably believed: (a) in the case of conduct in his official capacity, that his conduct was in the Corporations best interest; and (b) in all other cases, that his conduct was not opposed to the Corporations best interests, and (3) in the case of any criminal Proceeding, had no reasonable cause to believe his conduct was unlawful. If Indemnitee is entitled to indemnification pursuant to this Section 3.2 as to some Claims in such Proceeding but not others, then the Corporation reserves the right to reasonably prorate in good faith its indemnification obligations arising under this Agreement. Nothing in this Section 3.2 shall limit the benefits of Section 3.1 or any other Section hereunder.
Section 3.3 Limitation on Indemnity. The Indemnification otherwise available to an Indemnitee under Section 3.2 shall be limited to the extent set forth in this Section 3.3. In the event that an Indemnitee is found liable to the Corporation or is found liable on the basis that personal benefit was improperly received by the Indemnitee, whether or not the benefit resulted from an action taken in Indemnitees official capacity, the Indemnitee shall, with respect to the Proceeding in which such finding is made, be indemnified only against reasonable Expenses actually incurred by him in connection with that Proceeding. Notwithstanding the foregoing, no indemnification against such Expenses shall be made in respect of any such Proceeding as to which Indemnitee shall have been adjudged to be liable for (a) willful or intentional misconduct in the performance of his duty to the Corporation, (b) breach of his duty of loyalty owed to the Corporation or (c) an act or omission not committed in good faith that constitutes a breach of a duty owed by Indemnitee to the Corporation; provided, however, that, if applicable law so permits, indemnification against such Expenses shall nevertheless be made by the Corporation in such event if and only to the extent that the court in which such Proceeding shall have been brought or is pending, shall determine.
ARTICLE IV
Expenses
Section 4.1 Expenses of a Party Who Is Wholly or Partly Successful. Notwithstanding any other provision of this Agreement, Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by him in connection with any Proceeding to which Indemnitee is a party by reason of his Corporate Status and in which Indemnitee is successful, on the merits or otherwise. In the event that Indemnitee is not wholly successful, on the merits or otherwise, in a Proceeding but is successful, on the merits or otherwise, as to any Claim in such Proceeding, the Corporation shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or on his behalf relating to such Claim, with Expenses with respect to such Proceeding being reasonably prorated by the Corporation in good faith. For purposes of this Section 4.1 and without limitation, the termination of a Claim in a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such Claim.
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Section 4.2 Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness or otherwise participates in any Proceeding at a time when he is not named a defendant or respondent in the Proceeding, he shall be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith.
Section 4.3 Advancement of Expenses. The Corporation shall pay all reasonable Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding or Claim, whether brought by the Corporation or otherwise, in advance of any determination respecting entitlement to indemnification pursuant to Article V hereof within 10 days after the receipt by the Corporation of a written request from Indemnitee requesting such payment or payments from time to time, whether prior to or after final disposition of such Proceeding or Claim. Each such request shall reasonably evidence the Expenses incurred by Indemnitee. Prior to any payment being made by the Corporation, Indemnitee shall provide the Corporation with a written affirmation of his good faith belief that he has met the standard of conduct necessary for indemnification hereunder. Indemnitee hereby undertakes and agrees that he will reimburse and repay the Corporation for any Expenses so advanced to the extent that it shall ultimately be determined by a court in a final adjudication from which there is no further right of appeal, that Indemnitee is not entitled to be indemnified against such Expenses. Indemnitee shall not be required to provide collateral or otherwise secure the undertaking and agreement described in the prior sentence.
ARTICLE V
Procedure for Determination of Entitlement to Indemnification
Section 5.1 Request by Indemnitee. To obtain indemnification under this Agreement, Indemnitee shall submit to the Corporation a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary or an Assistant Secretary of the Corporation shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnification.
Section 5.2 Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 5.1 hereof, a determination, if required by applicable law, with respect to Indemnitees entitlement thereto shall be made in the specific case: (a) if a Change in Control shall have occurred, by Special Counsel (selected in accordance with Section 5.3) in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, unless Indemnitee shall request that such determination be made in accordance with Section 8.103(a)(1), (2), (4) or (5) of the TBOC; or (b) if a Change in Control shall not have occurred, in accordance with Section 8.103(a) of the TBOC. If it is so determined that Indemnitee is entitled to indemnification hereunder, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 5.2 prior to the disposition or conclusion of a Claim or Proceeding against Indemnitee; provided, however, that advancement of Expenses shall continue to be made by the Corporation pursuant to, and to the extent required by, the provisions of Articles III and IV. Indemnitee shall cooperate with the person making such determination with respect to Indemnitees entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys
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fees and disbursements) incurred by Indemnitee in so cooperating with the person making such determination shall be borne by the Corporation (irrespective of the determination as to Indemnitees entitlement to indemnification) and the Corporation hereby agrees to indemnify and hold harmless Indemnitee therefrom.
Section 5.3 Special Counsel. If a Change in Control shall have occurred and Indemnitee elects that the determination as to indemnification is to be made by Special Counsel, the Special Counsel shall be selected by the Board from a list of three reasonably acceptable choices proposed by Indemnitee, and Indemnitee shall give written notice to the Corporation of such list within 10 days of his request for indemnification (unless Indemnitee shall request that such selection be made by the Board without such delivery of such list, in which event the Corporation shall give written notice to Indemnitee within 10 days after receipt of Indemnitees request for indemnification advising him of the identity of the Special Counsel). If the Indemnitee supplies such a list, the Board shall choose from such list and the Corporation shall notify the Indemnitee of the choice within seven days after such list has been given. Indemnitee or the Corporation, as the case may be, may, within seven days after such written notice of selection or delivery of such list, as the case may be, shall have been given, deliver to the Corporation or to Indemnitee, as the case may be, a written objection to such selection or to the names on the list, as the case may be. Any objection to the selection or identity of Special Counsel pursuant to this Section 5.3 may be asserted only on the ground that the Special Counsel so selected or identified does not meet the requirements of the definition of Special Counsel in Article I hereof, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is timely made by the Indemnitee, the Special Counsel selected by the Board may not serve as Special Counsel unless and until a court of competent jurisdiction (the Court) has determined that such objection is without merit. In the event of a timely written objection to either a choice of Special Counsel, or to inclusion of a proposed Special Counsel on a list the party originally selecting the Special Counsel or the Indemnitee who has proposed such Special Counsel on such list shall have seven days to make an alternate selection of Special Counsel or to give written notice of selection to the other party as the case may be, after which time such other party shall have five days to make a written objection to such alternate selection. If, within 30 days after submission by Indemnitee of a written request for indemnification pursuant to Section 5.1 hereof, no Special Counsel shall have been selected and not objected to, either the Corporation or Indemnitee may petition the Court for resolution of any objection that shall have been made by the Corporation or Indemnitee to the others selection of Special Counsel and/or for the appointment as Special Counsel of a person selected by the Court or by such other person as the Court shall designate, and the person with respect to whom an objection is so resolved or the person so appointed shall act as Special Counsel under Section 5.2 hereof. The Corporation shall pay any and all reasonable fees and expenses of Special Counsel incurred by such Special Counsel in connection with acting pursuant to Section 5.2, and the Corporation shall pay all reasonable fees and expenses incident to the procedures of this Section 5.3, regardless of the manner in which such Special Counsel was selected or appointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 6.1(c) of this Agreement, Special Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
Section 5.4 Presumptions and Effect of Certain Proceedings.
(a) If a Change in Control shall have occurred, the Indemnitee shall be presumed (except as otherwise expressly provided in this Agreement) to be entitled to indemnification under this Agreement upon submission of a request for indemnification under Section 5.1, and thereafter the Corporation shall have the burden of proof in overcoming that
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presumption in reaching a determination contrary to that presumption. The presumption shall be used by Special Counsel (or other person or persons determining entitlement to indemnification) as a basis for a determination of entitlement to indemnification unless the Corporation provides information sufficient to overcome such presumption by clear and convincing evidence or the investigation, review and analysis of Special Counsel (or such other person or persons) convinces him by clear and convincing evidence that the presumption should not apply.
(b) If the person or persons empowered or selected under Article V of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 days after receipt by the Corporation of the request by Indemnitee therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a knowing misstatement by Indemnitee of a material fact, or knowing omission of a material fact necessary to make Indemnitees statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating to such determination; and provided, further, that the 60-day limitation set forth in this Section 5.4(b) shall not apply and such period shall be extended as necessary (i) if within 30 days after receipt by the Corporation of the request for indemnification under Section 5.1 the Board has resolved to submit such determination to the shareholders of the Corporation pursuant to Section 5.2(b) of this Agreement for their consideration at an annual meeting thereof to be held within 90 days after such receipt and such determination is made thereat, or a special meeting of shareholders is called within 30 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Special Counsel pursuant to Section 5.2(a) of this Agreement, in which case the applicable period shall be as set forth in Section 6.1(c).
(c) The termination of any Proceeding or of any Claim by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) by itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee failed to meet any particular standard of conduct, that Indemnitee had any particular belief, or that a court has determined that indemnification is not permitted by applicable law. Indemnitee shall be deemed to have been found liable in respect of any Claim or Proceeding only after he shall have been so adjudged by a court in competent jurisdiction after exhaustion of all appeals therefrom.
ARTICLE VI
Certain Remedies of Indemnitee
Section 6.1 Indemnitee Entitled to Adjudication in an Appropriate Court. In the event (a) a determination is made pursuant to Article V that Indemnitee is not entitled to indemnification under this Agreement; (b) there has been any failure by the Corporation to make timely payment or advancement of any amounts due hereunder; or (c) the determination of entitlement to indemnification is to be made by Special Counsel pursuant to Section 5.2 and such determination shall not have been made and delivered in a written opinion within 90 days after the latest of (i) such Special Counsels being appointed, (ii) the overruling by the Court of objections to such counsels selection or (iii) expiration of all periods for the Corporation or
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Indemnitee to object to such counsels selection, Indemnitee shall be entitled to commence an action seeking an adjudication in an appropriate court of the State of Texas, or in any other court of competent jurisdiction, of his entitlement to such indemnification or advancement of Expenses. Alternatively, Indemnitee, at his option, may seek an award in arbitration. The arbitration shall be conducted by a single arbitrator and shall take place in Houston, Texas according to the rules of the then-prevailing Commercial Arbitration Rules of the American Arbitration Association. The arbitrator shall reside in Houston, Texas, and be an attorney licensed to practice law by the State Bar of Texas. The parties agree that all matters subject to the arbitration, including the arbitration itself, shall remain confidential. Indemnitee shall commence such action seeking an adjudication or an award in arbitration within 180 days following the date on which Indemnitee first has the right to commence such action pursuant to this Section 6.1, or such right shall expire. The Corporation agrees not to oppose Indemnitees right to seek any such adjudication or award in arbitration.
Section 6.2 Adverse Determination Not to Affect any Judicial Proceeding. In the event that a determination shall have been made pursuant to Article V that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Article VI shall be conducted in all respects as a de novo trial or arbitration on the merits, and Indemnitee shall not be prejudiced by reason of such initial adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Article VI, the Corporation shall have the burden of proving that Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.
Section 6.3 Corporation Bound by Determination Favorable to Indemnitee in any Judicial Proceeding or Arbitration. If a determination shall have been made or deemed to have been made pursuant to Article V that Indemnitee is entitled to indemnification, the Corporation shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Article VI, absent a knowing misstatement by Indemnitee of a material fact, or a knowing omission of a material fact necessary to make a statement by Indemnitee not materially misleading, in connection with the request for indemnification.
Section 6.4 Corporation Bound by the Agreement. The Corporation shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Article VI that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Corporation is bound by all the provisions of this Agreement.
Section 6.5 Indemnitee Entitled to Expenses of Judicial Proceeding. In the event that Indemnitee seeks a judicial adjudication of or an award in arbitration to enforce his rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the Corporation, and shall be indemnified by the Corporation against, any and all expenses (of the types described in the definition of Expenses in Article I) actually and reasonably incurred by him in such judicial adjudication or arbitration but only if he prevails therein. If it shall be determined in said judicial adjudication or arbitration that Indemnitee is entitled to receive part but not all of the indemnification or advancement of expenses or other benefit sought, the expenses incurred by Indemnitee in connection with such judicial adjudication or arbitration shall be reasonably prorated in good faith by counsel for Indemnitee. Notwithstanding the foregoing, if a Change in Control shall have occurred, Indemnitee shall be entitled to indemnification under this Section 6.5 regardless of whether Indemnitee ultimately prevails in such judicial adjudication or arbitration.
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ARTICLE VII
Miscellaneous
Section 7.1 Non-Exclusivity. The rights of Indemnitee to receive indemnification and advancement of Expenses under this Agreement shall be in addition to, and shall not be deemed exclusive of, any other rights to which Indemnitee may at any time be entitled under applicable law, the Amended and Restated Certificate of Formation or By-Laws of the Corporation, any other agreement, vote of shareholders or a resolution of directors, or otherwise. No amendment or alteration of the Amended and Restated Certificate of Formation or By-Laws of the Corporation or any provision thereof shall adversely affect Indemnitees rights hereunder. To the extent that there is a change in the TBOC or other applicable law (whether by statute or judicial decision) which allows greater indemnification by agreement than would be afforded currently under the Amended and Restated Certificate of Formation or By-Laws of the Corporation and this Agreement, it is the intent of the parties hereto that the Indemnitee shall enjoy by virtue of this Agreement the greater benefit so afforded by such change. Any amendment, alteration or repeal of the TBOC that adversely affects any right of Indemnitee shall be prospective only and shall not limit or eliminate any such right with respect to any Proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place before such amendment or repeal.
Section 7.2 Insurance and Subrogation.
(a) To the extent that the Corporation maintains an insurance policy or policies providing liability insurance for directors, officers, employees or agents of the Corporation or for individuals serving at the request of the Corporation as partners, directors, officers, venturers, proprietors, trustees, employees, administrators, agents, fiduciaries or similar functionaries of another foreign or domestic corporation, partnership, limited liability company, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such similarly situated director, officer, employee, agent or individual under such policy or policies.
(b) In the event of any payment by the Corporation under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Corporation to bring suit to enforce such rights.
(c) The Corporation shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any Bylaw, insurance policy, contract, agreement or otherwise.
Section 7.3 Self Insurance of the Corporation. The parties hereto recognize that the Corporation may, but is not required to, procure or maintain insurance or other similar arrangements, at its expense, to protect itself and any person, including the Indemnitee, who is or was a director, officer, employee or agent of the Corporation or who is or was serving at the request of the Corporation as a partner, director, officer, venturer, proprietor, trustee, employee, administrator, agent, fiduciary or similar functionary of another foreign or domestic corporation, partnership, limited liability company, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise against any expense, liability or loss asserted against or incurred by such person, in such a capacity or arising out of his status as such a person, whether or not the Corporation would have the power to indemnify such person against such expense or liability.
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In considering the cost and availability of such insurance, the Corporation (through the exercise of the business judgment of its directors and officers) may, from time to time, purchase insurance which provides for any and all of (i) deductibles, (ii) limits on payments required to be made by the insurer, or (iii) coverage exclusions and/or coverage which may not be as comprehensive as that which might otherwise be available to the Corporation but which otherwise available insurance the officers or directors of the Corporation determine is inadvisable for the Corporation to purchase given the cost involved. The purchase of insurance with deductibles, limits on payments and coverage exclusions will be deemed to be in the best interest of the Corporation but may not be in the best interest of the Indemnitee. As to the Corporation, purchasing insurance with deductibles, limits on payments and coverage exclusions is similar to the Corporations practice of self-insurance in other areas. In order to protect Indemnitee who would otherwise be more fully or entirely covered under such policies, the Corporation shall, to the fullest extent permitted by applicable law, indemnify and hold Indemnitee harmless to the extent (i) of such deductibles, (ii) of amounts exceeding payments required to be made by an insurer or (iii) of coverage under policies of officers and directors liability insurance that are available, were available or which became available to the Corporation or which are generally available to companies comparable to the Corporation but which the officers or directors of the Corporation determine is inadvisable for the Corporation to purchase, given the cost involved. Without limiting the generality of any provision of this Agreement, the procedures in Article V hereof shall, to the extent applicable, be used for determining entitlement to indemnification under this Section 7.3.
Section 7.4 Certain Settlement Provisions. The Corporation shall have no obligation to indemnify Indemnitee under this Agreement for amounts paid in settlement of a Proceeding or Claim without the Corporations prior written consent. The Corporation shall not settle any Proceeding or Claim in any manner that would impose any fine, Expense, limitation or other obligation on Indemnitee without Indemnitees consent. Neither the Corporation nor Indemnitee shall unreasonably withhold their consent to any proposed settlement.
Section 7.5 Duration of Agreement. This Agreement shall continue for so long as Indemnitee serves as a director or officer of the Corporation or, at the request of the Corporation, as a partner, director, officer, venturer, proprietor, trustee, employee, administrator, agent, fiduciary or similar functionary of another foreign or domestic corporation, partnership, limited liability company, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, and thereafter shall survive until and terminate upon the last to occur of: (a) 10 years after the date that Indemnitee shall have ceased to serve in any such capacity; (b) the final termination of all pending Proceedings in respect of which Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any proceeding commenced by Indemnitee pursuant to Article VI relating thereto; or (c) the expiration of all statutes of limitation applicable to possible Claims or Proceedings arising out of Indemnitees Corporate Status. This Agreement shall be binding upon the Corporation and its successors and assigns and shall inure to the benefit of Indemnitee and his heirs, executors, legal representatives and administrators.
Section 7.6 Notice by Each Party. Indemnitee agrees to promptly notify the Corporation in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document or communication relating to any Proceeding or Claim for which Indemnitee may be entitled to indemnification or advancement of Expenses hereunder. The Corporation agrees to promptly notify Indemnitee in writing, as to the pendency of any Proceeding or Claim which may involve a claim against the Indemnitee for which Indemnitee may be entitled to indemnification or advancement of Expenses hereunder.
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Section 7.7 Amendment. This Agreement may not be modified or amended except by a written instrument executed by or on behalf of each of the parties hereto.
Section 7.8 Waivers. The observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) by the party entitled to enforce such term only by a writing signed by the party against which such waiver is to be asserted. Unless otherwise expressly provided herein, no delay on the part of any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party hereto of any right, power or privilege hereunder operate as a waiver of any other right, power or privilege hereunder nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
Section 7.9 Entire Agreement. This Agreement and the documents expressly referred to herein constitute the entire agreement between the parties hereto with respect to the matters covered hereby, and any other prior or contemporaneous oral or written understandings or agreements with respect to the matters covered hereby are expressly superseded by this Agreement.
Section 7.10 Severability. If any provision of this Agreement (including any provision within a single section, paragraph or sentence) or the application of such provision to any person or circumstance, shall be judicially declared to be invalid, unenforceable or void, such decision will not have the effect of invalidating or voiding the remainder of this Agreement or affect the application of such provision to other persons or circumstances, and the parties hereto agree that the part or parts of this Agreement so held to be invalid, unenforceable or void will be deemed to have been stricken herefrom and the remainder of this Agreement will have the same force and effectiveness as if such part or parts had never been included herein; provided, however, that the parties shall negotiate in good faith with respect to an equitable modification of the provision or application thereof declared to be invalid, unenforceable or void. Any such finding of invalidity or unenforceability shall not prevent the enforcement of such provision in any other jurisdiction to the maximum extent permitted by applicable law.
Section 7.11 Notices. Unless otherwise expressly provided herein, all notices, requests, demands, consents, waivers, instructions, approvals and other communications hereunder shall be in writing and shall be deemed to have been duly given if personally delivered to or mailed, certified mail return receipt requested, first-class postage paid, addressed as follows:
If to the Corporation, to it at:
Atwood Oceanics, Inc.
15835 Park Ten Place Drive
Houston, Texas, 77084
Attn: General Counsel
If to Indemnitee, to him at his address on file with the Corporation from time to time;
or to such other address or to such other individuals as any party shall have last designated by notice to the other parties. All notices and other communications given to any party in accordance with the provisions of this Agreement shall be deemed to have been given when delivered or sent to the intended recipient thereof in accordance with the provisions of this Section 7.11.
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Section 7.12 Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Texas without regard to the principles of conflict of laws that would result in the application of the laws of another jurisdiction.
Section 7.13 Rules of Construction.
(a) The Article and Section headings in this Agreement are for convenience of reference only, and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof. As used in this Agreement, unless otherwise provided to the contrary, (1) all references to days shall be deemed references to calendar days and (2) any reference to a Section or Article shall be deemed to refer to a section or article of this Agreement. The words hereof, herein and hereunder and words of similar import referring to this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Whenever the words include, includes or including are used in this Agreement, they shall be deemed to be followed by the words without limitation. Unless otherwise specifically provided for herein, the term or shall not be deemed to be exclusive. Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.
(b) For purposes of this Agreement, references to fines shall include any excise taxes assessed on a person with respect to any employee benefit plan; references to serving at the request of the Corporation shall include any service as a director, officer, employee or agent of the Corporation that imposes duties on, or involves services by, such director, nominee, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner the person reasonably believed to be in the interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner not opposed to the best interest of the Corporation for purposes of this Agreement and the TBOC.
Section 7.14 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in portable document format (.pdf) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.
Section 7.15 Certain Persons Not Entitled to Indemnification. Notwithstanding any other provision of this Agreement, Indemnitee shall not be entitled to indemnification or advancement of expenses hereunder with respect to (i) any Proceeding or any Claim therein, brought or made by such person against the Corporation, except as specifically provided in Article V or Article VI hereof; or (ii) the payment by Indemnitee to the Corporation of profits pursuant to Section 16(b) of the Exchange Act, or Claims or Proceedings in connection therewith.
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Section 7.16 Indemnification for Negligence, Gross Negligence, etc. WITHOUT LIMITING THE GENERALITY OF ANY OTHER PROVISION HEREUNDER, IT IS THE EXPRESS INTENT OF THIS AGREEMENT THAT INDEMNITEE BE INDEMNIFIED AND EXPENSES BE ADVANCED REGARDLESS OF INDEMNITEES ACTS OF NEGLIGENCE, GROSS NEGLIGENCE, INTENTIONAL OR WILLFUL MISCONDUCT OR THEORIES OF STRICT LIABILITY TO THE EXTENT THAT INDEMNIFICATION AND ADVANCEMENT OF EXPENSES IS ALLOWED PURSUANT TO THE TERMS OF THIS AGREEMENT AND UNDER APPLICABLE LAW.
Section 7.17 Mutual Acknowledgments. Both the Corporation and Indemnitee acknowledge that in certain instances, applicable law (including applicable federal law that may preempt or override applicable state law) or public policy may prohibit the Corporation from indemnifying the directors and officers of the Corporation under this Agreement or otherwise. For example, the Corporation and Indemnitee acknowledge that the U.S. Securities and Exchange Commission has taken the position that indemnification of directors, officers and controlling persons of the Corporation for liabilities arising under federal securities laws is against public policy and, therefore, unenforceable. Indemnitee understands and acknowledges that the Corporation has undertaken or may be required in the future to undertake with the Securities and Exchange Commission to submit the question of indemnification to a court in certain circumstances for a determination of the Corporations right under public policy to indemnify Indemnitee. In addition, the Corporation and Indemnitee acknowledge that federal law prohibits indemnifications for certain violations of the Employee Retirement Income Security Act of 1974, as amended.
Section 7.18 Clarification. Without limiting the generality of any other provision of this Agreement, the parties hereto agree and acknowledge that this Agreement is intended to and does apply to (a) all actions by the Indemnitee since the time of his election or appointment as a director or officer of the Corporation or since the commencement of his service, at the request of the Corporation, as a partner, director, officer, venturer, proprietor, trustee, employee, administrator, agent, fiduciary or similar functionary of another foreign or domestic corporation, partnership, limited liability company, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, and (b) if applicable, all of the Indemnitees activities as a director of the Corporation, including without limitation, service by the Indemnitee on any committee of the Board.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered to be effective as of the date first above written.
ATWOOD OCEANICS, INC. | ||
By: | ||
Name: | ||
Title: | ||
INDEMNITEE | ||
[Name] |
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Exhibit 10.2
ATWOOD OCEANICS, INC.
RESTRICTED STOCK AWARD AGREEMENT
2007 LONG-TERM INCENTIVE PLAN
This is an Agreement dated the 15th day of December 2009, between ATWOOD OCEANICS, INC., (the Company) and Robert J. Saltiel (Restricted Stock Award Recipient).
Recitals:
The Company has adopted its 2007 Long-Term Incentive Plan (as amended, restated, or otherwise modified from time to time, the Plan) for the awarding to Participants (as defined in the Plan) shares of Common Stock of the Company as restricted stock. Pursuant to said Plan, the Compensation Committee of the Companys Board of Directors has approved and ratified the execution of this Restricted Stock Award Agreement between the Company and the Restricted Stock Award Recipient. It is understood and agreed that neither the award of restricted stock nor the execution of this Agreement shall create any right of the Recipient to remain in the employ of the Company, and that the Company retains the right to terminate such employment at will, for due cause or otherwise.
Agreement:
1. | The Company awards to the Restricted Stock Award Recipient 27,871 shares of restricted Common Stock, $1.00 par value, of the Company (the Restricted Stock). The Restricted Stock has a restriction period of four (4) years (the Restriction Period). [Unless otherwise accelerated pursuant to the terms of the relevant award agreement or by the Compensation Committee as set forth herein.] At the end of the Restriction Period, the restriction imposed by the Compensation Committee shall lapse with respect to the Restricted Stock covered by this Agreement. |
2. | If the Restricted Stock Award Recipient is terminated without Cause, to the extent permitted under the 2007 Plan, all Restricted Stock shall immediately vest; if such immediate vesting is not permitted by the 2007 Plan and applicable law, Executive shall be paid the financial equivalent of the shares as of the date of termination. |
3. | The holder of Restricted Stock may not sell, transfer, pledge, exchange, hypothecate, or otherwise dispose of the Restricted Stock during the applicable Restriction Period. |
4. | During any Restriction Period, if any dividends or other distributions are paid in shares of Common Stock, the Restricted Stock Award Recipient shall receive such dividends, but all such shares of Common Stock shall be subject to the same restrictions as the shares of Restricted Stock with respect to which they were paid. |
5. | The employment of the Restricted Stock Award Recipient, as it relates to the Restriction Period, shall be deemed to continue during any leave of absence, which has been authorized by the Company Group. |
6. | If the outstanding shares of the Common Stock of the Company are increased, decreased, changed into, or exchanged for a different number or kind of shares or securities of the Company through reorganization, recapitalization, reclassification, stock dividend, stock split or reverse stock split, an appropriate and proportionate adjustment shall be made in the Restricted Stock on the same basis as any other similarly situated shareholder of the Company. |
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7. | Subject to the provisions of the Plan, in the event of a Change of Control (as defined in the Plan), [all Restricted Stock shall vest and] the Restriction Period shall terminate. |
8. | Nothing herein contained shall affect the right of the Restricted Stock Award Recipient to participate in and receive benefits under and in accordance with the then current provisions of any pension, insurance, profit sharing or other Restricted Stock Award Recipient welfare plan or program of the Company Group. |
9. | The Restricted Stock Award Recipient shall not be entitled to any of the rights or privileges of a shareholder of the Company in respect of any shares of Common Stock until the restrictions representing such shares lapse and shares have been actually issued and delivered to him or her. |
10. | The Restricted Stock is subject to, and the Company and Restricted Stock Award Recipient agree to be bound by, all of the terms and conditions of the Plan, except that no amendment to the Plan shall adversely affect the Restricted Stock Award Recipients rights under this Agreement. A copy of the Plan in its present form is available for inspection during business hours by the Restricted Stock Award Recipient at the Companys principal office. |
11. | Upon lapse of the Restriction Period [and vesting] of the Restricted Stock, the Company Group may be required to withhold federal or local tax with respect to the realization of compensation. Any federal or local tax withholding requirements with respect to the realization of compensation must be fully satisfied by the Restricted Stock Award Recipient upon the lapse of the Restriction Period [and vesting] by delivering to the Company, on behalf of the Company Group, cash in an amount determined by the Company Group to be sufficient to satisfy any such withholding requirement. |
12. | This Agreement has been executed and delivered the day and year first above written at Houston, Texas, and the interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of Texas, without regard to conflicts of laws. |
ATWOOD OCEANICS, INC. | ||
/s/ James M. Holland |
||
By: James M. Holland | ||
/s/ Robert J. Saltiel |
||
Robert J. Saltiel | ||
Restricted Stock Award Recipient |
Exhibit 10.3
ATWOOD OCEANICS, INC.
RESTRICTED STOCK AWARD
AMENDED AND RESTATED AGREEMENT
2007 LONG-TERM INCENTIVE PLAN
This is an Amended and Restated Agreement (the Agreement) dated the 21st day of December 2010, between ATWOOD OCEANICS, INC. (the Company) and Robert J. Saltiel (Restricted Stock Award Recipient).
Recitals:
The Company has adopted its 2007 Long-Term Incentive Plan (as amended, restated, or otherwise modified from time to time, the Plan) for the awarding to Participants (as defined in the Plan) shares of Common Stock of the Company as restricted stock. Pursuant to said Plan, the Compensation Committee of the Companys Board of Directors has approved and ratified the execution of this Agreement between the Company and the Restricted Stock Award Recipient. It is understood and agreed that neither the award of restricted stock nor the execution of this Agreement shall create any right of the Recipient to remain in the employ of the Company, and that the Company retains the right to terminate such employment at will, for due cause or otherwise. Any term not defined herein shall have the meaning given in the Plan, and, if applicable, the Employment Agreement between Restricted Stock Award Recipient and the Company.
On December 15, 2009, the Restricted Stock Award Recipient and the Company entered into a Restricted Stock Award Agreement (the Prior Award Agreement) whereby the Company awarded 27,871 shares of restricted Common Stock, $1.00 par value of the Company (Shares) to the Restricted Stock Award Recipient (the Restricted Stock Award), subject to performance measures, goals and milestones relating to the Restricted Stock Award to be established by the Committee by December 15, 2010 (the Performance Measures). The Restricted Stock Award Recipient and the Company now wish to amend and restate the terms of the Prior Award Agreement to reflect the Performance Measures as
set forth on Exhibit A attached hereto which have now been determined in good faith by the Restricted Stock Award Recipient and the Committee. This Agreement hereby amends and restates the Prior Award Agreement in its entirety.
Agreement:
1. | The Company has awarded to the Restricted Stock Award Recipient the Restricted Stock Award of 27,871 Shares. The Restricted Stock Award has a restriction and vesting period of four (4) years (the Restriction Period) and is subject to achievement of the performance measures, goals and milestones (the Performance Measures) set forth on Exhibit A attached hereto. During the Restriction Period, the Restricted Stock Award Recipient may not sell, transfer, pledge, exchange, hypothecate, or otherwise dispose of the Restricted Stock Award. At the end of the Restriction Period, the restrictions imposed by the Committee shall lapse with respect to those Shares of the Restricted Stock Award calculated as vested by the Performance Measures, and such Shares shall vest. All other Shares included in the Restricted Stock Award shall be forfeited. |
2. | If the Restricted Stock Award Recipients employment with the Company is terminated without Cause, to the extent permitted under the Plan, the Restricted Stock Award shall immediately vest; if such immediate vesting is not permitted by the Plan and applicable law, the Restricted Stock Award Recipient shall be paid the financial equivalent of the Shares of the Restricted Stock Award as of the date of termination. |
3. | The Restricted Stock Award is subject to acceleration of vesting and lapse of restrictions upon death, disability or Retirement as set forth in Section 10.2 of the Plan. |
4. | During the Restriction Period, if any dividends or other distributions are paid in Shares, the Restricted Stock Award Recipient shall receive such additional Shares, but all such Shares shall be subject to the same restrictions as the Shares included in the Restricted Stock Award with respect to which they were paid. |
5. | The employment of the Restricted Stock Award Recipient, as it relates to the Restriction Period, shall be deemed to continue during any leave of absence which has been authorized by the Company Group. |
6. | Any adjustments to the Shares included in the Restricted Stock Award shall be made pursuant to Article IX of the Plan. |
7. | Subject to the provisions of the Plan, in the event of a Change of Control, the Restricted Stock Award shall be immediately vested, fully earned and exercisable, and the Restriction Period shall terminate immediately. |
8. | Nothing herein contained shall affect the right of the Restricted Stock Award Recipient to participate in and receive benefits under and in accordance with the then current provisions of any pension, insurance, profit sharing or other welfare plan or program of the Company Group. |
9. | The Restricted Stock Award Recipient shall not be entitled to any of the rights or privileges of a shareholder of the Company in respect of any Shares included in the Restricted Stock Award until a certificate or certificates representing such Shares shall have been actually issued and delivered to him. |
10. | The Restricted Stock Award is subject to, and the Company and Restricted Stock Award Recipient agree to be bound by, all of the terms and conditions of the Plan, except that no amendment to the Agreement shall adversely affect the Restricted Stock Award Recipients rights under the Agreement without his consent. A copy of the Plan in its present form is available for inspection during business hours by the Restricted Stock Award Recipient at the Companys principal office. |
11. | Upon lapse of the Restriction Period and/or vesting of the Restricted Stock Award, the Company Group may be required to withhold federal or local tax with respect to the realization of compensation. Any federal or local tax withholding requirements with respect to the realization of compensation must be fully satisfied by the Restricted Stock Award Recipient upon the lapse of the Restriction Period and/or vesting by delivering to the Company, on behalf of the Company Group, cash in an amount determined by the Company Group to be sufficient to satisfy any such withholding requirement. |
12. | This Agreement has been executed and delivered the day and year first above written at Houston, Texas, and the interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of Texas, without regard to conflicts of laws. |
[Remainder of page intentionally left blank]
ATWOOD OCEANICS, INC. |
/s/ Luis A. Jimenez |
By: Luis A. Jimenez |
Restricted Stock Award Recipient |
/s/ Robert J. Saltiel |
Robert J. Saltiel |
EXHIBIT A
VESTING OF PERFORMANCE SHARES
December 10, 2010
CONSIDERATIONS
| Mr. Saltiel: 50% of Shares To Vest On Achievement of Stock Price Performance Measure (SPP) And 50% To Vest Upon Achievement of Safety Measure |
| Mr. Mey: 100% of Shares Will Vest Upon Achievement of SPP |
| 4 Year Cumulative To Be Considered for SPP |
| SPP Calculation Focused On Stock Price Only And Excluding Cash Dividends |
| SPP Vs. Performance Peers Measured As Average Closing Price Of 9-Day Trading Range with Employment Date In The Middle Of The Range, Compared to Average Closing Price of 9-Day Trading Range with End Date Of 4-Year Performance Period In The Middle Of The Range |
| Make Provision For Potential Impact Of Corporate Structure Changes In Peer Companies, Mergers, Consolidations, Spin-Offs, Bankruptcy, Change In Trading Jurisdictions, Other Potential Changes In Peer Group |
| Graded Vesting Based on SPP Ranking Versus Peers At End Of The 4-Year Performance Period |
| Safety: Vesting of 50% Of Mr. Saltiels Shares Will Be Determined Based On Achieving TRIR Equal to or Lower than the Comparable IADC TRIR, With Each Year As Separate Measuring Period For Final Determinations of Vesting |
| TRIR Metric Is Atwood At Equal Or Better Than TRIR For Combined Water Regions Where Atwood Operates |
| In the Event Of Change Of Control, The Provisions Of The Agreements Entered Into With Each Executive And The Provisions Of The 2007 Long Term Incentive Plan Shall Apply |
ROB SALTIEL 50% SPP
50% OF THE SHARES VEST UPON ACHIEVING STOCK PRICE
PERFORMANCE MEASURE (SPP)
PERFORMANCE PEERS |
TICKER |
4 YR CUMULATIVE SPP |
RANKING | |||
Atwood Oceanics Inc | ATW | SPPx | X | |||
Diamond Offshore | DO | SPPa | a | |||
Transocean | RIG | SPPb | b | |||
Pride International | PDE | SPPc | c | |||
Noble Drilling | NE | SPPd | d | |||
Ensco PLC | ESV | SPPe | e | |||
Rowan Companies | RDC | SPPf | f | |||
Start Date of Performance Period | December 9 19 2009 | Average closing price of the 9 trading-day range with employment date in the middle of the range | ||||
End Date of Performance Period | December 10 19 2013 | Average closing price of the 9 trading-day range with end of the 4-year performance period in the middle of the range |
Stock Price Performance = (Price at End Date - Price At Start Date) / Price At Start Date Dividend Excluded |
If Atwood is ranked at #1, #2 or #3 of the 7 in the Peer Group = 100% of 50% of the Shares Will Vest |
If Atwood is ranked at #4 of the 7 in the Peer Group = 50% of 50% of the Shares Will Vest |
If Atwood is ranked at #5 or #6 of the 7 in the Peer Group = 25% of 50% of the Shares Will Vest |
If Atwood is ranked at #7 of the 7 in the Peer Group = 0% of 50% of the Shares Will Vest
|
SPP compares the performance results of peer companies shares to Atwoods over the performance period of 4 years. SPP focuses on share price appreciation without dividends. The absolute size of the SPP will vary, but the relative position reflects the market perception of overall performance relative to the peer group. |
ROB SALTIEL 50% SAFETY
50% OF THE SHARE VEST UPON ACHIEVING SAFETY (TRIR) PERFORMANCE
TRIR Yr 1 | TRIR Yr 2 | TRIR Yr 3 | TRIR Yr 4 | |||||||||||||
IADC | ATW | IADC | ATW | IADC | ATW | IADC | ATW | |||||||||
50% of the shares granted will vest at the end of the 4-Year performance period if ATW TRIR is Equal to our Lower than the comparable IADC TRIR | X1 | Y1 | X2 | Y2 | X3 | Y3 | X4 | Y4 | ||||||||
Start Date | 10/1/2009 | 10/1/2010 | 10/1/2011 | 10/1/2012 | ||||||||||||
End Date | 9/30/2010 | 9/30/2011 | 9/30/2012 | 9/30/2013 | ||||||||||||
Annual Measurement | Y1 = or < than X1 | Y2 = or < than X2 | Y3 = or < than X3 | Y4 = or < than X4 |
Final Vesting Determinations Will Be Made On The Basis Of 25% of 50% Of The Shares For Each Year In The Performance Period |
TRIR = (MTO+RWEC+LTI+FTL) multiplied by 200,000 and divided by Total Hours Worked) Will utilize TRIR metrics for combined IADC waters where Atwood rigs operate |
TRIR = Total recordable incident rate
IADC = International Association of Drilling Contractors
Incident Rate = Incidents per 200,000 man-hours worked
MTO = Medical treatment other than first aid
RWTC = Restricted work/transfer activity
LTI = Lost time from work
FTL = Fatality
MARK MEY 100% SPP
100% OF THE SHARES VEST UPON ACHIEVING STOCK PRICE
PERFORMANCE MEASURE (SPP)
PERFORMANCE PEERS |
TICKER |
4 YR CUMULATIVE SPP |
RANKING | |||
Atwood Oceanics Inc | ATW | SPPx | X | |||
Diamond Offshore | DO | SPPa | a | |||
Transocean | RIG | SPPb | b | |||
Pride International | PDE | SPPc | c | |||
Noble Drilling | NE | SPPd | d | |||
Ensco PLC | ESV | SPPe | e | |||
Rowan Companies | RDC | SPPf | f | |||
Start Date of Performance Period | August 5 - 17 2010 | Average closing price of the 9 trading-day range with employment date in the middle | ||||
End Date of Performance Period | August 5 - 14 2014 | Average closing price of the 9 trading-day range with end of the 4-year performance period in the middle |
Stock Price Performance = (Price at End Date - Price At Start Date) / Price At Start Date Dividend Excluded |
If Atwood is ranked at #1, #2 or #3 of the 7 in the Peer Group = 100% of the Shares Will Vest |
If Atwood is ranked at #4 of the 7 in the Peer Group = 50% of the Shares Will Vest |
If Atwood is ranked at #5 or #6 of the 7 in the Peer Group = 25% of the Shares Will Vest |
If Atwood is ranked at #7 of the 7 in the Peer Group = 0% of the Shares Will Vest
|
SPP compares the performance results of peer companies shares to Atwoods over the performance period of 4 years. SPP focuses on share price appreciation without dividends. The absolute size of the SPP will vary, but the relative position reflects the market perception of overall performance relative to the peer group. |
STOCK PRICE BASELINE
ROB SALTIEL
Date |
RIG | ATW | PDE | RDC | NE | ESV | DO | |||||||||||||||||||||
12/09/2009 |
$ | 80.16 | $ | 34.29 | $ | 31.73 | $ | 23.21 | $ | 40.29 | $ | 41.39 | $ | 96.03 | ||||||||||||||
12/10/2009 |
$ | 80.70 | $ | 34.96 | $ | 32.14 | $ | 23.41 | $ | 40.50 | $ | 41.77 | $ | 96.50 | ||||||||||||||
12/11/2009 |
$ | 80.27 | $ | 34.38 | $ | 31.64 | $ | 23.18 | $ | 40.40 | $ | 41.67 | $ | 96.09 | ||||||||||||||
12/14/2009 |
$ | 81.38 | $ | 34.92 | $ | 32.16 | $ | 23.80 | $ | 41.01 | $ | 43.05 | $ | 97.14 | ||||||||||||||
12/15/2009 |
$ | 83.36 | $ | 35.88 | $ | 32.13 | $ | 24.05 | $ | 41.48 | $ | 43.32 | $ | 98.18 | ||||||||||||||
12/16/2009 |
$ | 84.17 | $ | 36.42 | $ | 32.72 | $ | 24.21 | $ | 42.08 | $ | 42.50 | $ | 99.74 | ||||||||||||||
12/17/2009 |
$ | 82.83 | $ | 35.67 | $ | 32.24 | $ | 23.94 | $ | 40.99 | $ | 41.72 | $ | 98.50 | ||||||||||||||
12/18/2009 |
$ | 82.59 | $ | 35.90 | $ | 32.50 | $ | 23.84 | $ | 41.09 | $ | 41.82 | $ | 98.11 | ||||||||||||||
12/19/2009 |
$ | 83.69 | $ | 36.14 | $ | 32.59 | $ | 23.92 | $ | 41.55 | $ | 42.20 | $ | 99.57 | ||||||||||||||
$ | 82.13 | $ | 35.40 | $ | 32.21 | $ | 23.73 | $ | 41.04 | $ | 42.16 | $ | 97.76 |
MARK MEY
Date |
RIG | ATW | PDE | RDC | NE | ESV | DO | |||||||||||||||||||||
8/05/2010 |
$ | 57.93 | $ | 28.14 | $ | 25.88 | $ | 27.20 | $ | 34.52 | $ | 45.03 | $ | 67.49 | ||||||||||||||
8/06/2010 |
$ | 57.11 | $ | 27.80 | $ | 25.94 | $ | 27.08 | $ | 34.43 | $ | 45.12 | $ | 66.43 | ||||||||||||||
8/09/2010 |
$ | 56.82 | $ | 27.66 | $ | 25.49 | $ | 27.15 | $ | 33.92 | $ | 45.41 | $ | 65.65 | ||||||||||||||
8/10/2010 |
$ | 56.46 | $ | 27.20 | $ | 25.25 | $ | 26.96 | $ | 33.75 | $ | 45.59 | $ | 64.83 | ||||||||||||||
8/11/2010 |
$ | 54.16 | $ | 25.71 | $ | 24.00 | $ | 25.74 | $ | 32.66 | $ | 43.74 | $ | 62.26 | ||||||||||||||
8/12/2010 |
$ | 53.89 | $ | 25.15 | $ | 23.54 | $ | 25.53 | $ | 32.55 | $ | 43.49 | $ | 61.02 | ||||||||||||||
8/13/2010 |
$ | 54.15 | $ | 25.08 | $ | 23.44 | $ | 25.76 | $ | 32.60 | $ | 43.71 | $ | 60.51 | ||||||||||||||
8/16/2010 |
$ | 53.71 | $ | 25.16 | $ | 23.97 | $ | 26.59 | $ | 32.55 | $ | 43.80 | $ | 61.37 | ||||||||||||||
8/17/2010 |
$ | 54.53 | $ | 25.80 | $ | 24.25 | $ | 26.49 | $ | 33.31 | $ | 44.22 | $ | 62.19 | ||||||||||||||
$ | 55.42 | $ | 26.41 | $ | 24.64 | $ | 26.50 | $ | 33.37 | $ | 44.46 | $ | 63.53 |
Exhibit 10.4
Clarifying Amendment
Restricted Stock Award
2007 Long-Term Incentive Plan
WHEREAS, Atwood Oceanics, Inc., a Texas corporation (the Company), has adopted and maintains the Atwood Oceanics, Inc. Amended and Restated 2007 Long-Term Incentive Plan, as amended (the 2007 LTIP), under which awards may be granted to selected employees, officers and directors of the Company;
WHEREAS, pursuant to the 2007 LTIP, the Compensation Committee (the Committee) of the Board of Directors of the Company previously granted to Robert J. Saltiel (Awardee) that certain Restricted Stock Award Amended and Restated Agreement dated December 21, 2010 (the Award);
WHEREAS, the number of shares of the Companys stock ultimately earned under the Award is subject to the achievement performance measures described in Exhibit A to the Award; and
WHEREAS, the Committee and Awardee wish to enter into this amendment to the Award to clarify certain terms of the performance measures as described in Exhibit A to the Award;
NOW, THEREFORE, the parties hereto agree as follows:
1. The term Employment Date as used in Exhibit A means December 14, 2009.
2. Unless the Award is vested sooner according to Section 2 or Section 7 of the Award, the Restriction Period expires and the Award shall vest on the date that is four (4) years after the date of grant of the Award, which expiration date is December 15, 2013.
3. The term Cause as used in Section 2 of the Award shall have the meaning assigned to such term in the Employment Agreement between the parties, dated December 8, 2009.
4. If Awardees employment with the Company is terminated prior to the expiration of the Restriction Period for reasons other than those specified in Section 2 of the Award (without Cause) or Section 3 of the Award (due to death, disability or Retirement), then the Award shall be forfeited in its entirety.
5. During the Restriction Period, if any dividends or other distributions with respect to the Companys common stock are paid in other than shares of common stock, then (1) any such dividends or distributions in the form of cash shall be held in escrow by the Company and payment of such cash amounts shall be subject to the same restrictions as the shares included in the Award and (2) the number of shares subject to the Award shall be equitably adjusted, as determined by the Committee in its sole and reasonable discretion, in order to prevent enlargement or dilution of the Award as a result of any such dividend or distribution that is deemed extraordinary in nature, as determined by the Committee in its sole and reasonable discretion.
6. If, as a result of merger, acquisition or a similar corporate transaction, a member of the performance peers with respect to the stock price performance measure of Exhibit A ceases to be publicly traded within the first 365 days after the date of the Award, then the following alternative stock price performance payout ranking will apply:
Six Company Payout Schedule | ||
Atwood Ranking |
Percentage of shares vesting | |
1 |
100% | |
2 |
100% | |
3 |
100% | |
4 |
50% | |
5 |
25% | |
6 |
0% |
If, as a result of merger, acquisition or a similar corporate transaction, a member of the performance peers with respect to the stock price performance measure of Exhibit A ceases to be publicly traded subsequent to the first 365 days after the date of the Award, then such member of the peer group shall remain in the peer group and the stock price performance of such member of the peer group shall be determined by assuming that its performance for the remainder of the performance period was equivalent to the arithmetic average percentage gain or loss (up or down) of the remaining members of the peer group (excluding the Company) over the remainder of the performance period.
7. The shares of Company common stock with respect to the Award that are subject to safety performance based on TRIR shall be determined on an annual basis as described in Exhibit A. However, any such shares annually determined to be awarded shall remain subject to forfeiture and shall not vest until the expiration of the Restriction Period. Similarly, any shares relating to safety performance that are not deemed to be awarded based on the annual determination remain subject to full vesting and award (i) in the event of a Change in Control prior to the end of the Restriction Period or (ii) subject to Section 3 of the Award in the event of death, disability or Retirement prior to the end of the Restriction Period.
8. In determining stock price performance, dividends are excluded.
ATWOOD OCEANICS, INC. | ||||||||
/s/ Robert J. Saltiel |
By: | /s/ Walter A. Baker |
||||||
Robert J. Saltiel | Name: Walter A. Baker | |||||||
Title: Vice President, General Counsel | ||||||||
Date: April 20, 2012 | Date: April 20, 2012 |
Exhibit 10.5
ATWOOD OCEANICS, INC.
RESTRICTED STOCK AWARD AGREEMENT
2007 LONG-TERM INCENTIVE PLAN
This is an Agreement dated the 11th day of August 2010, between ATWOOD OCEANICS, INC., (the Company) and Mark Mey (Restricted Stock Award Recipient).
Recitals:
The Company has adopted its 2007 Long-Term Incentive Plan (as amended, restated, or otherwise modified from time to time, the Plan) for the awarding to Participants (as defined in the Plan) shares of Common Stock of the Company as restricted stock. Pursuant to said Plan, the Compensation Committee of the Companys Board of Directors has approved and ratified the execution of this Restricted Stock Award Agreement between the Company and the Restricted Stock Award Recipient. It is understood and agreed that neither the award of restricted stock nor the execution of this Agreement shall create any right of the Recipient to remain in the employ of the Company, and that the Company retains the right to terminate such employment at will, for due cause or otherwise.
Agreement:
1. | The Company awards to the Restricted Stock Award Recipient 12,500 shares of restricted Common Stock, $1.00 per value, of the Company (the Restricted Stock). The Restricted Stock has a restriction period of four (4) years (the Restriction Period). [Unless otherwise accelerated pursuant to the terms of the relevant award agreement or by the Compensation Committee as set forth herein, vesting of the Restricted Stock will only occur if the Restricted Stock Award Recipient remains in the employment of the Company, its subsidiary or affiliate (collectively, the Company Group for the prescribed Restriction Period.] At the end of the Restriction Period, the restriction imposed by the Compensation Committee shall lapse with respect to the Restricted Stock covered by this Agreement. |
2. | The Compensation Committee may, in its discretion, accelerate the vesting of this Restricted Stock Award in the case of death or disability. In the case of retirement, there will be no acceleration of the vesting of this Restricted Stock Award. Unless otherwise accelerated due to death or disability of the Restricted Stock Award Recipient or in the event of a Change of Control, all Restricted Stock Awards shall be forfeited upon termination of employment at any time prior to the end of the restriction period of four (4) years. |
3. | The holder of Restricted Stock may not sell, transfer, pledge, exchange, hypothecate, or otherwise dispose of the Restricted Stock during the applicable Restriction Period. |
4. | During any Restriction Period, if any dividends or other distributions are paid in shares of Common Stock, the Restricted Stock Award Recipient shall receive such dividends, but all such shares of Common Stock shall be subject to the same restrictions as the shares of Restricted Stock with respect to which they were paid. |
5. | The employment of the Restricted Stock Award Recipient, as it relates to the Restriction Period, shall be deemed to continue during any leave of absence, which has been authorized by the Company Group. |
6. | If the outstanding shares of the Common Stock of the Company are increased, decreased, changed into, or exchanged for a different number or kind of shares or securities of the Company through reorganization, recapitalization, reclassification, stock dividend, stock split or reverse stock split, an appropriate and proportionate adjustment shall be made in the Restricted Stock on the same basis as any other similarly situated shareholder of the Company. |
7. | Subject to the provisions of the Plan, in the event of a Change of Control (as defined in the Plan), [all Restricted Stock shall vest and] the Restriction Period shall terminate. |
8. | Nothing herein contained shall affect the right of the Restricted Stock Award Recipient to participate in and receive benefits under and in accordance with the |
9. | then current provisions of any pension, insurance, profit sharing or other Restricted Stock Award Recipient welfare plan or program of the Company Group. |
10. | The Restricted Stock Award Recipient shall not be entitled to any of the rights or privileges of a shareholder of the Company in respect of any shares of Common Stock until a certificate or certificates representing such shares shall have been actually issued and delivered to him or her. |
11. | The Restricted Stock is subject to, and the Company and Restricted Stock Award Recipient agree to be bound by, all of the terms and conditions of the Plan, except that no amendment to the Plan shall adversely affect the Restricted Stock Award Recipients rights under this Agreement. A copy of the Plan in its present form is available for inspection during business hours by the Restricted Stock Award Recipient at the Companys principal office. |
12. | Upon lapse of the Restriction Period [and vesting] of the Restricted Stock, the Company Group may be required to withhold federal or local tax with respect to the realization of compensation. Any federal or local tax withholding requirements with respect to the realization of compensation must be fully satisfied by the Restricted Stock Award Recipient upon the lapse of the Restriction Period [and vesting] by delivering to the Company, on behalf of the Company Group, cash in an amount determined by the Company Group to be sufficient to satisfy any such withholding requirement. |
13. | This Agreement has been executed and delivered the day and year first above written at Houston, Texas, and the interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of Texas, without regard to conflicts of laws. |
ATWOOD OCEANICS, INC. | ||
/s/ Rodney L. Mallams |
||
By: Rodney L. Mallams | ||
Mark L. Mey |
||
Restricted Stock Award Recipient |
Exhibit 10.6
ATWOOD OCEANICS, INC.
RESTRICTED STOCK AWARD
AMENDED AND RESTATED AGREEMENT
2007 LONG-TERM INCENTIVE PLAN
This is an Amended and Restated Agreement (the Agreement) dated the 21st day of December 2010, between ATWOOD OCEANICS, INC. (the Company) and Mark Mey (Restricted Stock Award Recipient).
Recitals:
The Company has adopted its 2007 Long-Term Incentive Plan (as amended, restated, or otherwise modified from time to time, the Plan) for the awarding to Participants (as defined in the Plan) shares of Common Stock of the Company as restricted stock. Pursuant to said Plan, the Compensation Committee of the Companys Board of Directors has approved and ratified the execution of this Agreement between the Company and the Restricted Stock Award Recipient. It is understood and agreed that neither the award of restricted stock nor the execution of this Agreement shall create any right of the Recipient to remain in the employ of the Company, and that the Company retains the right to terminate such employment at will, for due cause or otherwise. Any term not defined herein shall have the meaning given in the Plan.
On August 11, 2010, the Restricted Stock Award Recipient and the Company entered into a Restricted Stock Award Agreement (the Prior Award Agreement) whereby the Company awarded 12,500 shares of restricted Common Stock, $1.00 par value of the Company (Shares) to the Restricted Stock Award Recipient (the Restricted Stock Award), subject to performance measures, goals and milestones relating to the Restricted Stock Award to be established by the Committee by December 15, 2010 (the Performance Measures). The Restricted Stock Award Recipient and the Company now wish to amend and restate the terms of the Prior Award Agreement to reflect the Performance Measures as set forth on Exhibit A attached hereto which have now been determined in good faith by the Restricted Stock Award Recipient and the Committee. This Agreement hereby amends and restates the Prior Award Agreement in its entirety.
Agreement:
1. | The Company has awarded to the Restricted Stock Award Recipient the Restricted Stock Award of 12,500 Shares. The Restricted Stock Award has a restriction and vesting period of four (4) years (the Restriction Period) and is subject to achievement of the performance measures, goals and milestones (the Performance Measures) set forth on Exhibit A attached hereto. During the Restriction Period, the Restricted Stock Award Recipient may not sell, transfer, pledge, exchange, hypothecate, or otherwise dispose of the Restricted Stock Award. At the end of the Restriction Period, the restrictions imposed by the Committee shall lapse with respect to those Shares of the Restricted Stock Award calculated as vested by the Performance Measures, and such Shares shall vest. All other Shares included in the Restricted Stock Award shall be forfeited. |
2. | The Restricted Stock Award is subject to acceleration of vesting and lapse of restrictions upon death, disability or Retirement as set forth in Section 10.2 of the Plan. |
3. | During the Restriction Period, if any dividends or other distributions are paid in Shares, the Restricted Stock Award Recipient shall receive such additional Shares, but all such Shares shall be subject to the same restrictions as the Shares included in the Restricted Stock Award with respect to which they were paid. |
4. | The employment of the Restricted Stock Award Recipient, as it relates to the Restriction Period, shall be deemed to continue during any leave of absence which has been authorized by the Company Group. |
5. | Any adjustments to the Shares included in the Restricted Stock Award shall be made pursuant to Article IX of the Plan. |
6. | Subject to the provisions of the Plan, in the event of a Change of Control, the Restricted Stock Award shall be immediately vested, fully earned and exercisable, and the Restriction Period shall terminate immediately. |
7. | Nothing herein contained shall affect the right of the Restricted Stock Award Recipient to participate in and receive benefits under and in accordance with the then current provisions of any pension, insurance, profit sharing or other welfare plan or program of the Company Group. |
8. | The Restricted Stock Award Recipient shall not be entitled to any of the rights or privileges of a shareholder of the Company in respect of any Shares included in the Restricted Stock Award until a certificate or certificates representing such Shares shall have been actually issued and delivered to him. |
9. | The Restricted Stock Award is subject to, and the Company and Restricted Stock Award Recipient agree to be bound by, all of the terms and conditions of the Plan, except that no amendment to the Agreement shall adversely affect the Restricted Stock Award Recipients rights under the Agreement without his consent. A copy of the Plan in its present form is available for inspection during business hours by the Restricted Stock Award Recipient at the Companys principal office. |
10. | Upon lapse of the Restriction Period and/or vesting of the Restricted Stock Award, the Company Group may be required to withhold federal or local tax with respect to the realization of compensation. Any federal or local tax withholding requirements with respect to the realization of compensation must be fully satisfied by the Restricted Stock Award Recipient upon the lapse of the Restriction Period and/or vesting by delivering to the Company, on behalf of the Company Group, cash in an amount determined by the Company Group to be sufficient to satisfy any such withholding requirement. |
11. | This Agreement has been executed and delivered the day and year first above written at Houston, Texas, and the interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of Texas, without regard to conflicts of laws. |
[Remainder of page intentionally left blank]
ATWOOD OCEANICS, INC. |
/s/ Luis A. Jimenez |
By: Luis A. Jimenez |
Restricted Stock Award Recipient |
/s/ Mark Mey |
Mark Mey |
EXHIBIT A
VESTING OF PERFORMANCE SHARES
December 10, 2010
CONSIDERATIONS
| Mr. Saltiel: 50% of Shares To Vest On Achievement of Stock Price Performance Measure (SPP) And 50% To Vest Upon Achievement of Safety Measure |
| Mr. Mey: 100% of Shares Will Vest Upon Achievement of SPP |
| 4-Year Cumulative To Be Considered for SPP |
| SPP Calculation Focused On Stock Price Only And Excluding Cash Dividends |
| SPP Vs. Performance Peers Measured As Average Closing Price Of 9-Day Trading Range with Employment Date In The Middle Of The Range, Compared to Average Closing Price of 9-Day Trading Range with End Date Of 4-Year Performance Period In The Middle Of The Range |
| Make Provision For Potential Impact Of Corporate Structure Changes In Peer Companies, Mergers, Consolidations, Spin-Offs, Bankruptcy, Change In Trading Jurisdictions, Other Potential Changes In Peer Group |
| Graded Vesting Based on SPP Ranking Versus Peers At End Of The 4-Year Performance Period |
| Safety: Vesting of 50% Of Mr. Saltiels Shares Will Be Determined Based On Achieving TRIR Equal to or Lower than the Comparable IADC TRIR, With Each Year As Separate Measuring Period For Final Determinations of Vesting |
| TRIR Metric Is Atwood At Equal Or Better Than TRIR For Combined Water Regions Where Atwood Operates |
| In the Event Of Change Of Control, The Provisions Of The Agreements Entered Into With Each Executive And The Provisions Of The 2007 Long Term Incentive Plan Shall Apply |
ROB SALTIEL 50% SPP
50% OF THE SHARES VEST UPON ACHIEVING STOCK PRICE
PERFORMANCE MEASURE (SPP)
PERFORMANCE PEERS |
TICKER |
4 YR CUMULATIVE SPP |
RANKING | |||
Atwood Oceanics Inc | ATW | SPPx | X | |||
Diamond Offshore | DO | SPPa | a | |||
Transocean | RIG | SPPb | b | |||
Pride International | PDE | SPPc | c | |||
Noble Drilling | NE | SPPd | d | |||
Ensco PLC | ESV | SPPe | e | |||
Rowan Companies | RDC | SPPf | f | |||
Start Date of Performance Period | December 9 19 2009 | Average closing price of the 9 trading-day range with employment date in the middle of the range | ||||
End Date of Performance Period | December 10 19 2013 | Average closing price of the 9 trading-day range with end of the 4-year performance period in the middle of the range |
Stock Price Performance = (Price at End Date - Price At Start Date) / Price At Start Date Dividend Excluded |
If Atwood is ranked at #1, #2 or #3 of the 7 in the Peer Group = 100% of 50% of the Shares Will Vest |
If Atwood is ranked at #4 of the 7 in the Peer Group = 50% of 50% of the Shares Will Vest |
If Atwood is ranked at #5 or #6 of the 7 in the Peer Group = 25% of 50% of the Shares Will Vest |
If Atwood is ranked at #7 of the 7 in the Peer Group = 0% of 50% of the Shares Will Vest
|
SPP compares the performance results of peer companies shares to Atwoods over the performance period of 4 years. SPP focuses on share price appreciation without dividends. The absolute size of the SPP will vary, but the relative position reflects the market perception of overall performance relative to the peer group. |
ROB SALTIEL 50% SAFETY
50% OF THE SHARE VEST UPON ACHIEVING SAFETY (TRIR) PERFORMANCE
TRIR Yr 1 | TRIR Yr 2 | TRIR Yr 3 | TRIR Yr 4 | |||||||||||||
IADC | ATW | IADC | ATW | IADC | ATW | IADC | ATW | |||||||||
50% of the shares granted will vest at the end of the 4-Year performance period if ATW TRIR is Equal to our Lower than the comparable IADC TRIR | X1 | Y1 | X2 | Y2 | X3 | Y3 | X4 | Y4 | ||||||||
Start Date | 10/1/2009 | 10/1/2010 | 10/1/2011 | 10/1/2012 | ||||||||||||
End Date | 9/30/2010 | 9/30/2011 | 9/30/2012 | 9/30/2013 | ||||||||||||
Annual Measurement | Y1 = or < than X1 | Y2 = or < than X2 | Y3 = or < than X3 | Y4 = or < than X4 |
Final Vesting Determinations Will Be Made On The Basis Of 25% of 50% Of The Shares For Each Year In The Performance Period |
TRIR = (MTO+RWEC+LTI+FTL) multiplied by 200,000 and divided by Total Hours Worked) Will utilize TRIR metrics for combined IADC waters where Atwood rigs operate |
TRIR = Total recordable incident rate
IADC = International Association of Drilling Contractors
Incident Rate = Incidents per 200,000 man-hours worked
MTO = Medical treatment other than first aid
RWTC = Restricted work/transfer activity
LTI = Lost time from work
FTL = Fatality
MARK MEY 100% SPP
100% OF THE SHARES VEST UPON ACHIEVING STOCK PRICE
PERFORMANCE MEASURE (SPP)
PERFORMANCE PEERS |
TICKER |
4 YR CUMULATIVE SPP |
RANKING | |||
Atwood Oceanics Inc | ATW | SPPx | X | |||
Diamond Offshore | DO | SPPa | a | |||
Transocean | RIG | SPPb | b | |||
Pride International | PDE | SPPc | c | |||
Noble Drilling | NE | SPPd | d | |||
Ensco PLC | ESV | SPPe | e | |||
Rowan Companies | RDC | SPPf | f | |||
Start Date of Performance Period | August 5 - 17 2010 | Average closing price of the 9 trading-day range with employment date in the middle | ||||
End Date of Performance Period | August 5 - 14 2014 | Average closing price of the 9 trading-day range with end of the 4-year performance period in the middle |
Stock Price Performance = (Price at End Date - Price At Start Date) / Price At Start Date Dividend Excluded |
If Atwood is ranked at #1, #2 or #3 of the 7 in the Peer Group = 100% of the Shares Will Vest |
If Atwood is ranked at #4 of the 7 in the Peer Group = 50% of the Shares Will Vest |
If Atwood is ranked at #5 or #6 of the 7 in the Peer Group = 25% of the Shares Will Vest |
If Atwood is ranked at #7 of the 7 in the Peer Group = 0% of the Shares Will Vest
|
SPP compares the performance results of peer companies shares to Atwoods over the performance period of 4 years. SPP focuses on share price appreciation without dividends. The absolute size of the SPP will vary, but the relative position reflects the market perception of overall performance relative to the peer group. |
STOCK PRICE BASELINE
ROB SALTIEL
Date |
RIG | ATW | PDE | RDC | NE | ESV | DO | |||||||||||||||||||||
12/09/2009 | $ | 80.16 | $ | 34.29 | $ | 31.73 | $ | 23.21 | $ | 40.29 | $ | 41.39 | $ | 96.03 | ||||||||||||||
12/10/2009 | $ | 80.70 | $ | 34.96 | $ | 32.14 | $ | 23.41 | $ | 40.50 | $ | 41.77 | $ | 96.50 | ||||||||||||||
12/11/2009 | $ | 80.27 | $ | 34.38 | $ | 31.64 | $ | 23.18 | $ | 40.40 | $ | 41.67 | $ | 96.09 | ||||||||||||||
12/14/2009 | $ | 81.38 | $ | 34.92 | $ | 32.16 | $ | 23.80 | $ | 41.01 | $ | 43.05 | $ | 97.14 | ||||||||||||||
12/15/2009 | $ | 83.36 | $ | 35.88 | $ | 32.13 | $ | 24.05 | $ | 41.48 | $ | 43.32 | $ | 98.18 | ||||||||||||||
12/16/2009 | $ | 84.17 | $ | 36.42 | $ | 32.72 | $ | 24.21 | $ | 42.08 | $ | 42.50 | $ | 99.74 | ||||||||||||||
12/17/2009 | $ | 82.83 | $ | 35.67 | $ | 32.24 | $ | 23.94 | $ | 40.99 | $ | 41.72 | $ | 98.50 | ||||||||||||||
12/18/2009 | $ | 82.59 | $ | 35.90 | $ | 32.50 | $ | 23.84 | $ | 41.09 | $ | 41.82 | $ | 98.11 | ||||||||||||||
12/19/2009 | $ | 83.69 | $ | 36.14 | $ | 32.59 | $ | 23.92 | $ | 41.55 | $ | 42.20 | $ | 99.57 | ||||||||||||||
$ | 82.13 | $ | 35.40 | $ | 32.21 | $ | 23.73 | $ | 41.04 | $ | 42.16 | $ | 97.76 |
MARK MEY
Date |
RIG | ATW | PDE | RDC | NE | ESV | DO | |||||||||||||||||||||
8/05/2010 | $ | 57.93 | $ | 28.14 | $ | 25.88 | $ | 27.20 | $ | 34.52 | $ | 45.03 | $ | 67.49 | ||||||||||||||
8/06/2010 | $ | 57.11 | $ | 27.80 | $ | 25.94 | $ | 27.08 | $ | 34.43 | $ | 45.12 | $ | 66.43 | ||||||||||||||
8/09/2010 | $ | 56.82 | $ | 27.66 | $ | 25.49 | $ | 27.15 | $ | 33.92 | $ | 45.41 | $ | 65.65 | ||||||||||||||
8/10/2010 | $ | 56.46 | $ | 27.20 | $ | 25.25 | $ | 26.96 | $ | 33.75 | $ | 45.59 | $ | 64.83 | ||||||||||||||
8/11/2010 | $ | 54.16 | $ | 25.71 | $ | 24.00 | $ | 25.74 | $ | 32.66 | $ | 43.74 | $ | 62.26 | ||||||||||||||
8/12/2010 | $ | 53.89 | $ | 25.15 | $ | 23.54 | $ | 25.53 | $ | 32.55 | $ | 43.49 | $ | 61.02 | ||||||||||||||
8/13/2010 | $ | 54.15 | $ | 25.08 | $ | 23.44 | $ | 25.76 | $ | 32.60 | $ | 43.71 | $ | 60.51 | ||||||||||||||
8/16/2010 | $ | 53.71 | $ | 25.16 | $ | 23.97 | $ | 26.59 | $ | 32.55 | $ | 43.80 | $ | 61.37 | ||||||||||||||
8/17/2010 | $ | 54.53 | $ | 25.80 | $ | 24.25 | $ | 26.49 | $ | 33.31 | $ | 44.22 | $ | 62.19 | ||||||||||||||
$ | 55.42 | $ | 26.41 | $ | 24.64 | $ | 26.50 | $ | 33.37 | $ | 44.46 | $ | 63.53 |
Exhibit 10.7
Clarifying Amendment
Restricted Stock Award
2007 Long-Term Incentive Plan
WHEREAS, Atwood Oceanics, Inc., a Texas corporation (the Company), has adopted and maintains the Atwood Oceanics, Inc. Amended and Restated 2007 Long-Term Incentive Plan, as amended (the 2007 LTIP), under which awards may be granted to selected employees, officers and directors of the Company;
WHEREAS, pursuant to the 2007 LTIP, the Compensation Committee (the Committee) of the Board of Directors of the Company previously granted to Mark Mey (Awardee) that certain Restricted Stock Award Amended and Restated Agreement dated December 21, 2010 (the Award);
WHEREAS, the number of shares of the Companys stock ultimately earned under the Award is subject to the achievement performance measures described in Exhibit A to the Award; and
WHEREAS, the Committee and Awardee wish to enter into this amendment to the Award to clarify certain terms of the performance measures as described in Exhibit A to the Award;
NOW, THEREFORE, the parties hereto agree as follows:
1. The term Employment Date as used in Exhibit A means August 11, 2010.
2. Unless the Award is vested sooner according to Section 2 or Section 7 of the Award, the Restriction Period expires and the Award shall vest on the date that is four (4) years after the date of grant of the Award, which expiration date is August 11, 2014.
3. The term Cause as used in Section 2 of the Award shall have the meaning assigned to such term in the Employment Agreement between the parties, dated August 11, 2010.
4. If Awardees employment with the Company is terminated prior to the expiration of the Restriction Period for reasons other than those specified in Section 2 of the Award (without Cause) or Section 3 of the Award (due to death, disability or Retirement), then the Award shall be forfeited in its entirety.
5. During the Restriction Period, if any dividends or other distributions with respect to the Companys common stock are paid in other than shares of common stock, then (1) any such dividends or distributions in the form of cash shall be held in escrow by the Company and payment of such cash amounts shall be subject to the same restrictions as the shares included in the Award and (2) the number of shares subject to the Award shall be equitably adjusted, as determined by the Committee in its sole and reasonable discretion, in order to prevent enlargement or dilution of the Award as a result of any such dividend or distribution that is deemed extraordinary in nature, as determined by the Committee in its sole and reasonable discretion.
6. If, as a result of merger, acquisition or a similar corporate transaction, a member of the performance peers with respect to the stock price performance measure of Exhibit A ceases to be publicly traded within the first 365 days after the date of the Award, then the following alternative stock price performance payout ranking will apply:
Six Company Payout Schedule | ||
Atwood Ranking |
Percentage of shares vesting | |
1 |
100% | |
2 |
100% | |
3 |
100% | |
4 |
50% | |
5 |
25% | |
6 |
0% |
If, as a result of merger, acquisition or a similar corporate transaction, a member of the performance peers with respect to the stock price performance measure of Exhibit A ceases to be publicly traded subsequent to the first 365 days after the date of the Award, then such member of the peer group shall remain in the peer group and the stock price performance of such member of the peer group shall be determined by assuming that its performance for the remainder of the performance period was equivalent to the arithmetic average percentage gain or loss (up or down) of the remaining members of the peer group (excluding the Company) over the remainder of the performance period.
7. In determining stock price performance, dividends are excluded.
ATWOOD OCEANICS, INC. | ||||||||
/s/ Mark Mey |
By: | /s/ Walter A. Baker |
||||||
Mark Mey | Name: Walter A. Baker | |||||||
Title: Vice President, General Counsel | ||||||||
Date: April 20, 2012 | Date: April 20, 2012 |
EXHIBIT 31.1
CERTIFICATIONS
I, | Robert J. Saltiel, certify that: |
1. | I have reviewed this quarterly report on Form 10-Q of Atwood Oceanics, Inc.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. | The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: May 4, 2012
/s/ ROBERT J. SALTIEL
Robert J. Saltiel
Chief Executive Officer
EXHIBIT 31.2
CERTIFICATIONS
I, Mark L. Mey, certify that:
1. | I have reviewed this quarterly report on Form 10-Q of Atwood Oceanics, Inc.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. | The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: May 4, 2012
/s/ MARK L. MEY
Mark L. Mey
Chief Financial Officer
EXHIBIT 32.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Atwood Oceanics, Inc. (the Company) on Form 10-Q for the period ended March 31, 2012, as filed with the Securities and Exchange Commission on the date hereof (the Report), I, Robert J. Saltiel, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge:
(1) | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
(2) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company for the periods presented. |
Date: May 4, 2012 | /S/ ROBERT J. SALTIEL | |||||
Robert J. Saltiel | ||||||
President and Chief Executive Officer |
EXHIBIT 32.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Atwood Oceanics, Inc. (the Company) on Form 10-Q for the period ended March 31, 2012, as filed with the Securities and Exchange Commission on the date hereof (the Report), I, Mark L. Mey, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge:
(1) | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
(2) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company for the periods presented. |
Date: May 4, 2012 | /S/ MARK L. MEY | |||||
Mark L. Mey | ||||||
Senior Vice President and Chief Financial Officer |
Fair Value Of Financial Instruments (Estimated Fair Value Of Financial Instruments) (Details) (USD $)
In Thousands, unless otherwise specified |
Mar. 31, 2012
|
---|---|
Fair Value, Assets and Liabilities Measured on Recurring and Nonrecurring Basis [Line Items] | |
Interest Rate Swaps, Liabilities at Fair Value | $ 2,113 |
Carrying Amount [Member]
|
|
Fair Value, Assets and Liabilities Measured on Recurring and Nonrecurring Basis [Line Items] | |
Interest Rate Swaps, Liabilities at Fair Value | 2,113 |
Level 2 [Member]
|
|
Fair Value, Assets and Liabilities Measured on Recurring and Nonrecurring Basis [Line Items] | |
Interest Rate Swaps, Liabilities at Fair Value | $ 2,113 |
Earnings Per Common Share
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6 Months Ended | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Mar. 31, 2012
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Earnings Per Common Share [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Earnings Per Common Share | 2. EARNINGS PER COMMON SHARE The computation of basic and diluted earnings per share is as follows (in thousands, except per share amounts):
The calculation of diluted earnings per share for the three and six months ended March 31, 2012 and 2011 excludes shares of common stock related to 562,000 and 702,000 outstanding stock options, respectively, because such options were anti-dilutive. These options could potentially dilute basic earnings per share in the future.
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