UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D. C. 20549

 

FORM 10-K/A

(Amendment No. 1)

 

For the fiscal year ended December 31, 2019

OR

For the transition period from                      to                     

Commission File Number: 333-212081

 

Vantage Drilling International

(Exact name of registrant as specified in its charter)

 

 

Registrant’s telephone number, including area code:

(281) 404-4700

Securities registered pursuant to Section 12(b) of the Act: None

Securities registered pursuant to Section 12(g) of the Act: None

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes  ☐    No  ☒

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.    Yes  ☐    No  ☒

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 (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes  ☒    No  ☐

Indicated by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted 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 such files).    Yes  ☒    No  ☐

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.  ☒

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See definitions of “large accelerated filer”, “accelerated filer”, “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

If an emerging growth company, indicate by check mark if the registrant has elected not use to the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act of 1934.  ☐

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).    Yes  ☐    No  ☒

Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Section 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court.    Yes  ☒    No  ☐

The number of the registrant’s ordinary shares outstanding as of April 15, 2020 is 13,115,026 shares.

 

 

 

 

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EXPLANATORY NOTE

Vantage Drilling International is hereby amending its Annual Report on Form 10-K for the fiscal year ended December 31, 2019 (the “Report”) to revise Part III of the Report to include the information previously omitted from the Report. This Amendment No. 1 to the Report continues to speak as of the date of filing of the Report, and except as expressly set forth herein we have not updated the disclosures contained in this Amendment No. 1 to the Report to reflect any events that occurred at a date subsequent to the filing of the Report. Accordingly, this Amendment No. 1 should be read in conjunction with the Report and other filings with the Securities and Exchange Commission.

TABLE OF CONTENTS

 

 

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PART III

Board of Directors and Executive Officers

The names of our directors and executive officers, their ages as of April 15, 2020 and certain other information about them are set forth below:

 

Board of Directors

Thomas R. Bates, Jr. has served as our Chairman of the Board since February 10, 2016. Qualifications and Experience: Mr. Bates has over 45 years of operational experience in the oil and gas industry, having held executive leadership positions at several major energy companies. He is currently an adjunct professor and member of the advisory board for the Energy MBA Program at the Neeley School of Business at Texas Christian University in Fort Worth. Mr. Bates joined Lime Rock Management LP, an energy focused private equity firm, as managing director in 2001 and became a senior advisor of the firm in 2010 before retiring in 2013. Mr. Bates previously served as group president at Baker Hughes from 1998 through 2000, chief executive officer at Weatherford-Enterra from 1997 to 1998, and spent 15 years in management positions at Schlumberger, finishing as president of the Anadrill division where he was responsible for the introduction of new drilling products and technologies. Mr. Bates began his career at Shell Oil Company. Through his experience in both energy and oilfield service companies, Mr. Bates provides significant insight into management and corporate strategy, including audit committee matters, that we believe are essential for growing the Company. His experience in private equity provides valuable entrepreneurial insight. Additionally, Mr. Bates has significant experience sitting on compensation and audit committees providing us with insight into corporate governance and other matters. Education: Mr. Bates has a doctorate in mechanical engineering from the University of Michigan. Mr. Bates serves on the Audit Committee.

Directorships for the past five years: Independence Contract Drilling (Chairman 2011 to present), TETRA Technologies (2011 to present), Alacer Gold Corporation (2014 to present), Hercules Offshore, Inc. (2004 to 2015; Chairman 2009 to 2015), Tidewater, Inc. (Chairman 2017 to 2019) and Weatherford International PLC (2019 to present).

Matthew W. Bonanno has served as a director of the Company since February 10, 2016. Qualifications and Experience: Mr. Bonanno joined York Capital Management in July 2010 and is a Partner of the Firm and the Co-Head of North America Credit. Mr. Bonanno is a Co-Portfolio Manager of the York Tactical Energy fund. Mr. Bonanno joined York from the Blackstone Group where he worked as an Associate, focusing on restructuring, recapitalization and reorganization transactions. Prior to joining the Blackstone Group, Mr. Bonanno worked on financing and strategic transactions at News Corporation and as an Investment Banker at JP Morgan and Goldman Sachs. Mr. Bonanno is currently a member of the Board, in his capacity as a York employee, of Riviera Resources, Inc., Rever Offshore AS, Samson Resources II, LLC, all entities incorporated pursuant to York’s partnership with Costamare Inc. and Next Decade LLC. Mr. Bonanno is also a member of the Board of Directors of the Children’s Scholarship Fund. Education: Mr. Bonanno received a B.A. in History from Georgetown University and an M.B.A in Finance from The Wharton School of the University of Pennsylvania. Mr. Bonanno serves on the Compensation Committee.

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Directorships for the past five years: Riviera Resources, Inc. (2013 to present), Rever Offshore AS (2013 to present), Stallion Oilfield Holdings, Inc. (2013 to 2015), ABY Group Holdings (2013 to present), Next Decade LLC (2017 to present), Linn Energy Inc. (Audit Committee Chairman 2017 to present), and Samson Resources II, LLC. (2017 to present).

Nils E. Larsen has served as a director of the Company since February 10, 2016. Qualifications and Experience: Mr. Larsen began working with The Carlyle Group’s U.S. Equity Opportunities Fund in 2013 and is currently an Operating Adviser. Prior to partnering with The Carlyle Group, Mr. Larsen served in a variety of senior executive positions with Tribune Company from 2008 to 2013, including as the President and Chief Executive Officer of Tribune Broadcasting and as the Co-President of Tribune Company. Before joining Tribune Company, Mr. Larsen was employed by Equity Group Investments, LLC from 1995 to 2008 (serving as a Managing Director from 2001 to 2008) and again from 2013 to present, focusing on investments in the media, transportation, energy, industrial manufacturing, retail grocery and member loyalty and rewards sectors. Mr. Larsen started his career at CS First Boston where he focused on the capital requirements and derivative products needs of U.S. financial institutions and non-U.S. based entities. Mr. Larsen has significant governance experience in post-bankrupt entities providing this essential insight to the Company. Education: Mr. Larsen received his A.B. summa cum laude from Bowdoin College. Mr. Larsen serves as chairman of the Audit Committee.

Directorships for the past five years: Blackhawk Mining LLC (2018 to October 2019), Liberty Tire Recycling Holdings (Chairman 2015 to present; Compensation Committee 2018 to present), Rewards Network (2013 to 2017; Chairman 2016 to 2017), Extreme Reach (2015 to present; Compensation Committee 2018 to present), More FM (2015 to 2018), Esterline Technologies Corporation (2016 to 2019; Audit Committee and Enterprise Risk Committee 2016 to 2019), LiveStyle, Inc. (2016 to present), Talent Partners (Chairman 2014 to 2015), Media Properties Holdings (2014 to 2016) and Veridiam, Inc. (April 2019 to present; Chairman August 2019 to present).

Scott McCarty has served as a director of the Company since February 15, 2016. Qualifications and Experience: Mr. McCarty joined Q Investments in 2002 and is currently a partner managing private equity and distressed investment groups within Q Investments. Affiliates of Q Investments are shareholders of the Company. Previously within Q Investments, Mr. McCarty was a portfolio manager. Before joining Q Investments, Mr. McCarty was a captain in the United States Army and worked in the office of U.S. Senator Kay Bailey Hutchison. Mr. McCarty has significant investment experience across industries and working with distressed investments and provides valuable insight to our Board of Directors regarding the structuring of the organization and streamlining operations. Education: Mr. McCarty graduated with a Bachelors of Science degree from the United States Military Academy at West Point, where he was a Distinguished Cadet and recipient of the General Lee Donne Olvey Award, and earned a Masters of Business Administration from Harvard Business School. Mr. McCarty serves on the Compensation Committee.

Directorships for the past five years: Q-TZG Leasing Holding Ltd (2013 to present), Gulfmark Offshore, Inc. (2017 to 2018), Jones Energy, Inc. (2018 to 2019) and PHI, Inc (2020 to present).

L. Spencer Wells has served as a director of the Company since February 10, 2016. Qualifications and Experience: Mr. Wells is a founder and partner of Drivetrain Advisors, a provider of fiduciary services to the alternative investment community, with a particular expertise in restructuring and turnarounds.  From 2010 to 2013, Mr. Wells served as a senior advisor and partner with TPG Special Situations Partners where he helped manage a $2.5B portfolio of liquid and illiquid distressed credit investments. Mr. Wells served as a partner at Silverpoint Capital from 2002 to 2009 where he managed a $1.3B investment portfolio consisting primarily of stressed and distressed bank loans and bonds focusing on the oil and gas exploration and production, oilfield services, power generation, financial institutions and chemicals industries. He previously served as an analyst on the distressed debt trading desks at Union Bank of Switzerland, Deutsche Bank and Bankers Trust. Mr. Wells’ significant experience in the debt, equity and capital markets provides the Board of Directors with insight into operating the Company following our reorganization plan. Mr. Wells also has significant experience serving on private and public companies’ boards, which gives him insight into matters regarding corporate governance and fiduciary responsibilities.  Education: Mr. Wells received his Bachelor of Arts degree from Wesleyan University and his Masters of Business Administration from the Columbia Business School. Mr. Wells serves on the Audit Committee and as the chairman of the Compensation Committee.

Directorships for the past five years:  Advanced Emissions Solutions, Inc. (Chairman 2014 to present), Syncora Holdings, Ltd. (2015 to 2016), Preferred Proppants LLC (2014 to 2018), Affinion Group Holdings, Inc. (Chairman 2015 to 2017), Global Geophysical Services, Inc. (Chairman 2015 to 2016), Town Sports International Holdings, Inc. (2015 to present), Certus Holdings, Inc. and CertusBank, N.A (2014 to 2016), Telford Offshore Holdings Ltd (2018 to 2020), NextDecade Corp (2017 to present), Samson Resources II LLC (2017 to present), Lily Robotics, Inc. (2017), Roust Corporation (2017), Jones Energy, Inc. (2018 to present), uBiome Inc. (2019), Vanguard Natural Resources (January 2019 to present) and Treehouse REIT, Inc. (January 2019 to present).

 

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Paul A. Gordon has served as a director of the Company since August 7, 2018. Qualifications and Experience: Mr. Gordon is currently a Managing Director of Anchorage Capital Group, L.L.C. (“Anchorage”) and has been with the firm since 2011. Mr. Gordon is the head of the firm’s Portfolio Group, which is responsible for driving operational, financial and strategy improvement in companies where Anchorage has a significant ownership stake. In addition, he is a member of the firm’s CLO Investment Committee. Prior to joining Anchorage, Mr. Gordon was a Managing Director and Portfolio Manager at S.A.C. Capital Advisors and began his investing career at Cerberus Capital Management. Mr. Gordon spent the first part of his professional career in investment banking and leveraged finance. Mr. Gordon received an M.B.A. from the Wharton School of the University of Pennsylvania and a B.A. from Cornell University where he graduated magna cum laude.

 

Directorships for the past five years: Hoxton (Cayman) Ltd. (2016 to present), Asterix, Inc. (2018 to present), Chemical Transportation Group, Inc. (2016, 2018 to present), Federal Fleet Services, Inc. (2018 to present), Product Tankers Holdco LLC (2018 to present), RAM RE Investments LLC (2018 to present), WPG Enterprise A LLC (2018 to present), WPG Enterprise SOP LLC (2018 to present), CHG Holdings LLC (October 2019 to present), CHG Canadian Holdings Inc. (October 2019 to present), Chantier Davie Canada Inc. (February 2020 to present), Carraun Telecom Holdings Limited (March 2020 to present) and Ideal Standard International NV  (March 2020 to present).

Richard B. Aubrey III has served as a director of the Company since February 8, 2020. Qualifications and Experience: Mr. Aubrey is currently a Managing Director at Anchorage Capital Group, L.L.C. (“Anchorage”), which he joined in September 2014. At Anchorage, Mr. Aubrey is responsible for leading the research process across the energy space, including upstream, midstream and offshore drilling. Prior to joining Anchorage, Mr. Aubrey worked at First Reserve Corporation from 2010-2012 as a private equity associate. Mr. Aubrey started his career in Houston with UBS Investment Bank in the Global Energy Group. Mr. Aubrey received a Bachelor of Science in Economics and a Masters of Business Administration with Honors from The Wharton School.

Directorships for the past five years: None

Ihab Toma has served as a member of the Board of Directors and as Chief Executive Officer of the Company since August 29, 2016. Qualifications and Experience: Mr. Toma has over 30 years of experience in the oilfield industry. From 2014 until 2016, Mr. Toma served as a senior advisor to First Reserve Corporation, a leading global private equity and infrastructure firm exclusively focused on energy. Previously, Mr. Toma served from 2009 until 2013 in various executive capacities at Transocean, as Executive Vice President - Chief of Staff, Executive Vice President - Operations, Executive Vice President - Global Business and Senior Vice President - Marketing and Planning. Prior to his time at Transocean, from 1986 until 2009, Mr. Toma served in multiple capacities at Schlumberger. He served as Vice President, Sales and Marketing for Europe, Africa and Caspian for Schlumberger Oilfield Services from April 2006 to August 2009. From 2000 to 2006, he led Schlumberger’s Information Solutions business in various capacities, including President, Vice President - Sales and Marketing, Vice President – Information Management and Vice President – Europe, Africa and CIS Operations. Mr. Toma began his career with Schlumberger in 1986. He holds a Bachelor of Science degree in Electrical, Electronics and Communications Engineering from Cairo University, Egypt.

Directorships in the past five years: 3T/Drilling Systems (UK) Ltd. (June 2015 to present), Paradigm Geophysical Corp (October 2013 to April 2018), AGR Group (Vice Chairman from January 2015 to December 2018), Engström & Engstöm (Chairman from May 2014 to May 2017), Fara-Rever (January 2018 to present) and Apex International (January 2019 to present).

Executive Officers

With respect to all of the following officers, references to offices held by such individuals in the following paragraphs are to offices with Vantage Drilling Company prior to the effectiveness of the Company’s Chapter 11 bankruptcy proceedings on February 10, 2016 and to offices with the Company after February 10, 2016.

Douglas W. Halkett has served as our Chief Operating Officer since January 2008 and served as a member of the Office of Chief Executive from March 2016 until August 29, 2016. Prior to joining us, Mr. Halkett served with Transocean Inc. as Division Manager in Northern Europe (UK & Norway) from January 2004 to November 2007, as an Operations Manager in the Gulf of Mexico

from February 2001 to December 2003, and as Operations Manager and Regional Operations Manager in the UK from July 1996 to January 2001. Prior to joining Transocean, Mr. Halkett worked for Forasol-Foramer in various operational and business roles from January 1988 to June 1996, and was assigned in Paris and various locations in the Far East. Mr. Halkett started his career with Shell International in Holland and Brunei in 1982 and joined Mobil North Sea Ltd in 1985. Mr. Halkett earned a First Class Honours Degree in Mechanical Engineering from Heriot Watt University (Edinburgh) in 1981 and attended the Program for Management Development at Harvard Business School in 2003.

Thomas J. Cimino has served as our Chief Financial Officer since September 2016. Prior to joining the Company, from 2012 until September 2016 Mr. Cimino served as Chief Financial Officer at AEI Services, LLC, an international company focused on

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power generation and distribution, natural gas transportation and services and gas distribution. From 2007 until 2012, he served as Vice President and Controller at AEI Services. Prior to joining AEI Services, LLC, from 2003 until 2007, Mr. Cimino served as Director—Global Capital Markets Group at Pricewaterhouse Coopers, where he provided capital markets advisory services to multi-national companies in the energy sector. His career has also included time at the United States Securities and Exchange Commission, Adidas America and KPMG, where he began his career. Mr. Cimino received his Bachelor of Science degree in Accounting from The Pennsylvania State University and his Executive MBA from Rice University.

Douglas E. Stewart has served as our Vice President, General Counsel and Corporate Secretary since June 2016 and our Chief Compliance Officer since December 12, 2016. Mr. Stewart joined the Company from Stallion Oilfield Holdings, Inc., where he served as Executive Vice President, General Counsel and Secretary. Mr. Stewart joined Stallion in June 2007 from Occidental Development Company, a subsidiary of Occidental Petroleum Corporation, where he served in the international business development group. Prior to joining Occidental in January 2007, he practiced corporate finance and securities law, specializing in private equity and mergers and acquisitions, at Vinson & Elkins LLP from September 2001 until December 31, 2006. Mr. Stewart received his Bachelor of Arts degree in Economics and International Studies from Trinity University and his J.D. from the University of Texas School of Law.

William L. Thomson has served as our Vice President—Marketing & Business Development since June 2016, prior to which he served as our Vice President of Technical Services, Supply Chain & Projects from March 2008. Prior to joining us, Mr. Thomson worked for Transocean, and predecessor companies, beginning in 1994, where, in addition to other roles, Mr. Thomson served as Operations Manager – Assets in the United Kingdom sector of the North Sea managing ten semi-submersibles and as Technical Support Manager – Africa. Additionally, Mr. Thomson worked extensively as a Project Manager responsible for various refurbishments, upgrades and new build jackup projects in shipyards in Africa, Asia, Europe, and the Middle East. Mr. Thomson earned an Honours degree in Naval Architecture and Offshore Engineering from the University of Strathclyde (UK) in 1992 and a PgD in Oil and Gas Law from the Robert Gordon University in 2006.

Linda J. Ibrahim has served as our Vice President of Tax and Governmental Compliance since February 2015, and has served the Company in various tax roles since 2010. Prior to joining the Company, Ms. Ibrahim was employed by Pride from 2006 to 2010, and PricewaterhouseCoopers LLP from 1999 to 2006, serving clients in the energy industry. Ms. Ibrahim holds a Bachelor of Business Administration – Accounting from the University of Houston and is a certified public accountant licensed in the state of Texas.

Material Changes in Director Nominations Process

On March 6, 2019, the Board of Directors of the Company, at a duly convened meeting thereof, approved an increase to the number of directors currently serving on the Board of Directors from seven to eight. Further, at such meeting, the Board exercised its authority pursuant to the Company’s memorandum and articles of association, and elected Mr. Stephen Lehner to fill the vacancy resulting from said increase, effectively immediately.

On February 6, 2020, the Company was informed by Mr. Stephen Lehner of his decision to resign from the Board of Directors of the Company, effective immediately. This decision was not related to a disagreement with the Company on any matter relating to its operations, policies or practices. In connection with the foregoing, on February 8, 2020, the Board of Directors exercised its authority under the Company’s memorandum and articles of association and elected Mr. Richard B. Aubrey III to fill the vacancy resulting from said resignation, effective immediately, to hold office until the next annual general meeting of shareholders of the Company or until his successor, if any, is duly elected and qualified.

 

There have not been any material changes to the procedures by which shareholders may recommend nominees to the Board of Directors.

Code of Ethics

We have adopted a Code of Business Conduct and Ethics that applies to all of our directors, officers and employees (the “Code of Conduct”). Our Code of Conduct is available at www.vantagedrilling.com on the “Corporate Governance” page under the link “Vantage Code of Business Conduct and Ethics.” We intend to include on our website any amendments to, or waivers from, a provision of the Code of Conduct that applies to our principal executive officer, principal financial officer, or controller that relates to any element of the “code of ethics” definition contained in Item 406(b) of Regulation S-K.

Audit Committee

The Audit Committee reviews and recommends to the Board of Directors internal accounting and financial controls and accounting principles and auditing practices to be employed in the preparation and review of our financial statements. In addition, the

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Audit Committee has authority to engage public accountants to audit our annual financial statements and determine the scope of the audit to be undertaken by such accountants. The Audit Committee is also charged with reviewing and approving all related party transactions.

Our Audit Committee is currently comprised of Messrs. Larsen, Bates and Wells with Mr. Larsen serving as Chairman of the Audit Committee. Messrs. Larsen, Bates and Wells are considered by the Board of Directors to be independent. Each of Messrs. Larsen, Bates and Wells qualifies as an audit committee financial expert as defined in Item 407(d) of Regulation S-K. The Audit Committee operates pursuant to a written charter, which is available at www.vantagedrilling.com on the “Corporate Governance” page under the link “Audit Committee Charter.”

Nominating and Corporate Governance Committee

Our Nominating and Corporate Governance Committee was primarily responsible for identifying, screening and reviewing individuals qualified to serve as directors and recommending to the Board candidates for election at the annual meeting of shareholders to fill Board vacancies. The Nominating and Corporate Governance Committee was also responsible for overseeing the evaluation of the Board, conducting an annual self-evaluation of its own effectiveness and considering corporate governance issues that arise from time to time. In addition, the Nominating and Corporate Governance Committee had the power to retain outside counsel, director search and recruitment consultants or other experts and to receive from the Company adequate funding, as determined by the Nominating and Corporate Governance Committee, for payment of reasonable compensation to such advisors.

Our Nominating and Corporate Governance Committee was disbanded on August 6, 2019.

Compensation Discussion and Analysis

Our 2019 Named Executive Officers

This Compensation Discussion and Analysis (“CD&A”) focuses on the compensation of our 2019 named executive officers, who were:

 

Compensation Philosophy and Objectives

Our executive compensation program reflects our philosophy that executive officers’ compensation should be closely aligned with the long-term interests of stakeholders and strongly correlated with both company-wide and individual performance. Accordingly, our executive compensation program places an emphasis on equity-based incentives and performance based compensation. The key business metrics we have historically considered in establishing targets and measuring the performance of our executive officers have included safety performance and financial performance.

The objectives of our executive compensation program are to attract, retain and motivate experienced, high-quality professionals to meet the long-term interests of our shareholders and to reward outstanding performance. Many of our competitors are larger and more established offshore drilling companies with greater financial resources. Consistent with our philosophy and objectives, we designed a compensation program which we believe to be competitive with companies with which we compete for talent and have evaluated the mix of compensation between fixed (annual base salary) and performance-based compensation.

The components of our compensation program currently include:

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2019 Compensation Program

Due to the ongoing difficulties in the offshore drilling industry, the Compensation Committee determined that there would be no adjustments to the annual base salaries of the named executive officers for 2019. To address retention concerns and incentivize the named executive officers to focus on short-term goals and objectives, the Compensation Committee determined it was appropriate to continue to operate an annual bonus program for 2019, as discussed in greater detail below. The Compensation Committee determined that it was both reasonable and in the Company’s best interests to provide the named executive officers with this type of compensation opportunity during 2019 in order to ensure that the executives were properly motivated to drive the Company toward its financial objectives.

Role of Compensation Committee

Messrs. Bonanno, McCarty and Wells serve on the Compensation Committee, with Mr. Wells serving as Chairman.

 

Our Compensation Committee is responsible for determining the compensation of our directors and executive officers as well as establishing our compensation philosophies. The Compensation Committee operates independently of management and annually has the authority to seek advice from advisors as it deems appropriate. The Compensation Committee reviews our compensation program, including the allocation of the respective components of compensation, and operates pursuant to a written charter, which is available at www.vantagedrilling.com on the “Corporate Governance” page under the link “Compensation Committee Charter.” Pursuant to its charter, the Compensation Committee may, in its discretion and to the extent permissible by law, delegate all or a portion of its duties and responsibilities to a subcommittee of the Compensation Committee. The Compensation Committee reviews and approves the compensation and benefits for executive officers of the Company (other than the CEO), and reviews and recommends for approval by the Board the compensation and benefits of the CEO.

Role of Benchmarking of Compensation and Peer Group

The Compensation Committee did not establish a peer group in connection with making compensation decisions in respect of 2019 and did not engage in any formal benchmarking in determining 2019 executive compensation. The Compensation Committee may, from time to time, review current practices of similarly-situated, publicly-held companies in the offshore drilling and oilfield services industries when it makes compensation-related decisions. In connection with its review, the Compensation Committee may consider the cash and equity compensation practices of other publicly held companies that are of a similar size, or that directly compete with us in the offshore contract drilling industry, through the review of such companies’ public reports and through other resources.

Role of Compensation Consultant

During 2019, the Compensation Committee did not retain the services of an outside compensation consultant.

Role of Executive Officers in Compensation Decisions

For 2019, no executive officer played a role in determining the amount or form of compensation paid to the Company’s executive officers, other than Mr. Toma, who provided input with respect to the performance goals and applicable target bonus levels (other than his own target bonus level) applicable to the 2019 annual cash incentive program.

Elements of our Compensation Program

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As described, there were six primary elements to our executive compensation program—annual base salary, annual cash incentive awards, time-based equity awards, performance-based equity awards, longer term cash-based retention awards and other benefits. Each of these elements are described in greater detail below.

Annual Base Salary. There were no changes to the annual base salary levels of the named executive officers during 2019.   On March 31, 2020, as part of our efforts to reduce operating and corporate costs in light of the global economic decline and public health crisis resulting from the spread of COVID-19, each named executive officer agreed to a 20% reduction in salary effective April 1, 2020 until June 30, 2020.  The reduction in base salary will have no effect on the other terms of the Employment Agreements.

Annual Cash Incentive Awards. To incentivize the named executive officers to focus on short-term goals and objectives, the Compensation Committee determined it was appropriate to approve a performance-based annual bonus program for 2019 (the “2019 Annual Bonus Program”). Under the 2019 Annual Bonus Program, each of the named executive officers had the opportunity to earn a cash payment based on the level of achievement of the following performance goals, each of which was weighted at 33%: (1) certain health and safety objectives, including the Total Recordable Incident Rate and reducing hand and finger injuries, (2) Contracts Awarded for Rigs and (3) level of cash at year end (collectively, the “Operational Goals”). At the beginning of 2019, the Compensation Committee established target bonus opportunities for each of the named executive officers, expressed as a percentage of the named executive officer’s annual base salary:

 

The maximum amount payable to each named executive officer under the 2019 Annual Bonus Program is 200% of the applicable named executive officer’s target bonus amount. Up to 100% of each named executive officer’s target bonus opportunity is based on the level of achievement of the Operational Goals, with the ability to earn between 101%-200% of the applicable target annual bonus opportunity based on the level of achievement of four pre-established strategic goals. Following the end of the performance period, the Compensation Committee determined that the level of achievement of the Operational Goals was 86% and the level of achievement of the strategic goals was 50%, resulting in an aggregate level of performance achieved across all performance goals of 136%. As a result, each named executive officer earned approximately 136% of his target annual bonus amount for 2019. For the amounts earned by each of the named executive officers in respect of 2019 performance, see the “Non-Equity Incentive Compensation” column of the 2019 Summary Compensation Table.

Time-based and Performance-based Equity Awards.

Amended 2016 Management Incentive Plan

On February 10, 2016, the Company’s Board of Directors adopted and approved the Company’s new 2016 Management Incentive Plan (the “2016 MIP”) pursuant to which the Compensation Committee had the ability to grant awards to employees, directors and consultants of the Company, as determined by the Compensation Committee. Pursuant to the 2016 MIP, the Compensation Committee could grant awards in the form of stock options, restricted stock, restricted stock units or other awards of the Company, subject to vesting conditions determined by the Compensation Committee. No grants were made under the MIP.

On August 9, 2016, the Board of Directors approved an amendment and restatement of the 2016 MIP in order to better align the terms of the 2016 MIP with our overall business strategy and operational performance (the “Amended 2016 MIP”). The Board of Directors also approved form award agreements to be used for grants under the Amended 2016 MIP, including time-based and performance-based restricted stock units to acquire units of our stapled securities. Pursuant to such form award agreements, time-based restricted stock units vest ratably annually over a four-year period, and performance-based restricted stock units vest (if at all) in accordance with a vesting schedule that is based on achievement of a multiple of “total enterprise value” of the Company, as tested on the occurrence of a “qualified liquidity event” or, if later, the seventh anniversary of the date the 2016 MIP became effective.

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All of the current named executive officers received these awards during 2016, but no additional grants were made to them during 2017 or 2019. During 2018, Mr. Thomson received 1,030 time-based restricted stock units and 2,430 performance-based restricted stock units on the same terms and conditions described above. For the grant date fair values of the equity-based awards granted to the named executive officer under the Amended 2016 MIP, see the 2016 “Stock Awards” column of the Summary Compensation Table.

In connection with the conversion of the Company's 1%/12% Step-Up Senior Secured Third Lien Convertible Notes into the Company's ordinary shares on December 4, 2019, each restricted stock unit was converted into the right to receive approximately 2.868 Company common shares, with a per-share average fair value of $66.26. Following the conversion of the Company's 1%/12% Step-Up Senior Secured Third Lien Convertible Notes, 963,380 common shares are reserved for issuance under the Amended 2016 MIP. As of December 31, 2019, there were 262,456 shares available for future grant under the Amended 2016 MIP.

On November 18, 2019, following the receipt of proceeds in connection with, and the procurement of a special litigation insurance policy by certain of the Company’s subsidiaries relating to, the Petrobras litigation matter, the Board declared a special cash dividend equal to $40.03 per share of the Company’s common stock (the “Dividend”). The Dividend was paid on December 17, 2019 to holders of record as of the close of business on December 10, 2019. Pursuant to the terms of the applicable award agreements, the named executive officers were entitled to accrue dividend equivalents in respect of the shares of common stock underlying their restricted stock unit awards outstanding when such Dividend was paid. These dividend equivalents are subject to the same vesting and settlement conditions applicable to the underlying restricted stock units, and will be paid at the same time the underlying restricted stock units are settled. As of the date of this filing, all of the named executive officers’ restricted stock units had vested.

Cash-Based Long Term Retention Awards.

On July 19, 2019, following the Company’s receipt of proceeds from an arbitration award issued in connection with the Petrobras litigation matter, the Board of Directors approved the grant of certain cash-based long term retention awards and their related award agreements, also known as the Petrobras Litigation Awards (the “Cash-Based Retention Awards”) to executives and other key employees in an aggregate of approximately $19.3 million.  The Cash-Based Retention Awards were issued under the Amended 2016 MIP Pursuant to the award agreements, commencing on June 21, 2019, at which time the Cash-Based Retention Awards were to vest over a four-year period as follows:

Termination.  Upon the termination of the participant’s service for any reason, all unvested portions of the Cash-Based Retention Awards would be forfeited and canceled with no compensation owed in respect of such amounts to participant.  

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Change of Control. Upon a qualified liquidity event (as defined in the applicable award agreement), the Board of Directors will have the right, in its sole discretion to cause any remaining unvested amounts of the Cash-Based Retention Awards to vest reflecting a cumulative of up to 100% of Cash-Based Retention Awards.

Other provisions.  The agreements relating to the Cash-Based Retention Awards contain customary provisions relating to confidentiality, non-competition and non-solicitation.

On September 25, 2019, the Board of Directors amended the terms and conditions of the Cash-Based Retention Awards (the “Amended Cash-Based Retention Awards).  The material changes to the Cash-Based Retention Awards as reflected in the Amended Cash-Based Retention Awards relate to vesting (as described below) and certain adjustments to the amounts to be awarded:

The provisions relating to termination, change of control, confidentiality, non-competition and non-solicitation were generally unchanged from the Cash-Based Retention Awards.

Severance and Other Termination Payments

The named executive officers are entitled to receive severance benefits under the terms of their employment agreements. Prior to the effectiveness of our chapter 11 bankruptcy plan on February 10, 2016, certain of the named executive officers were subject to the Company’s change of control policy. The purpose of the change of control policy was to:

In connection with the negotiation of the Amended and Restated Employment Agreements (as defined below), the economic terms of the change of control policy were incorporated into the Amended and Restated Employment Agreements in order to streamline the provision of severance and related benefits with respect to those executives who are party to those employment agreements.

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Employment Agreements. Effective as of the effectiveness of our Chapter 11 bankruptcy plan on February 10, 2016, we entered into amended and restated employment agreements (the “Amended and Restated Employment Agreements”) with Messrs. Halkett and Thomson, each effective February 10, 2016. The Amended and Restated Employment Agreements provide for certain severance benefits. Pursuant to the Amended and Restated Employment Agreements, upon certain terminations of employment or following a change of control, outstanding equity-based awards granted under the Amended 2016 MIP will be governed by the terms of the Amended 2016 MIP. In connection with their commencement of employment, Messrs. Toma, Cimino and Stewart each entered into employment agreements with us that provide for certain severance benefits upon certain terminations of employment (which are described in more detail below). Additionally, certain of our named executive officers may be entitled to additional severance benefits in the event the officer is terminated following a change of control. More detailed information about the employment agreements and the possible payouts under the change of control policy is contained in “Employment Agreements” and “Potential Payments Upon Termination or Change of Control.”

 

Other Compensation Policies

Other Compensation. We have established and maintain various employee benefit plans, including medical, dental, life insurance and a 401(k) plan. These plans are generally available to all salaried employees and do not discriminate in favor of executive officers or directors. We also provide certain of our executive officers with a limited number of perquisites which we believe are reasonable and competitive with other companies of our size in our industry. For certain executive officers, these include reimbursement for the cost of an annual physical, a car allowance, and/or certain housing expenses, as well as certain expatriate benefits described in more detail below. The amounts paid to each of the Company’s named executive officers in respect of such benefits are shown in the “All Other Compensation” column of the 2019 Summary Compensation Table.

Expatriate benefits. Employees, including the named executive officers, who reside outside of their home country as a result of their job responsibilities receive certain expatriate benefits that we believe are competitive with those of peer companies engaged in significant international operations. For expatriate named executive officers, these perquisites may include paid housing and utilities, a car allowance, an annual home leave flight allowance for the employee and eligible family members, and school tuition expenses for their children. These expatriate benefits phase out over a period of time specified for certain of our international and domestic locations.

Compensation Policies and Risk Management. It is the responsibility of the Compensation Committee to ensure that the Company’s policies and practices related to compensation do not encourage excessive risk taking behavior. The Compensation Committee believes that its current compensation policies and practices are not reasonably likely to have a material adverse effect on the Company and do not encourage excessive risk-taking behavior.

Tax and Accounting Considerations

Section 162(m) of the Internal Revenue Code places a limit of $1 million per year on the amount of compensation paid to certain of a public company’s executive officers that may be deductible for any single taxable year. The Tax Cuts and Jobs Act, enacted on December 22, 2017, substantially modified Section 162(m) and, among other things, expanded the definition of “public company” to include companies that have reporting obligations under Section 15(d) of the Exchange Act. As a result, for taxable years beginning after December 31, 2017, certain compensation paid by the Company to our “covered employees” (as defined under Section 162(m)) that exceeds $1 million may not be deductible to the Company. The Compensation Committee considered the impact of Section 162(m) in making compensation decisions during 2019, but did not base any of its compensation decisions solely on the applicable tax consequences. The Compensation Committee will continue to monitor the impact of Section 162(m) on the Company’s executive compensation programs.

Summary Compensation Table

The following table shows information concerning the annual compensation for services provided to us by our named executive officers during 2019, 2018 and 2017.

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Employment Agreements

Effective as of the effectiveness of our Chapter 11 bankruptcy plan on February 10, 2016, we entered into the Amended and Restated Employment Agreements with Messrs. Halkett and Thomson, each effective February 10, 2016. The Amended and Restated Employment Agreements supersede the employment agreements such named executive officers had in place with the company prior to February 10, 2016. We entered into the Amended and Restated Employment Agreements primarily for purposes of updating certain terms of our prior arrangements with such named executive officers, including modifications (i) to comply with changes in law, and (ii) to clarify certain terms and definitions.

The Amended and Restated Employment Agreements provide that Messrs. Halkett and Thomson are entitled to annual base salaries of $430,000 and $285,000, respectively, with target annual cash incentive awards equal to 80% and 70% of their respective base salaries (which, for Mr. Thomson, was subsequently increased to 75% and then to 100%). Subject to adjustments based on market conditions and industry compensation trends, each of the Amended and Restated Employment Agreements includes a recommendation for the approximate annual amount to be awarded to each executive in the form of restricted shares and/or share options as follows: $1,250,000 to Mr. Halkett and $712,500 to Mr. Thomson. In lieu of making such recommendation, the Compensation Committee granted equity awards pursuant to the Amended 2016 MIP as described above.

The term of each of the Amended and Restated Employment Agreements is subject to automatic extension for an additional one-year period on each anniversary of such agreement, unless either party gives notice of non-renewal at least 90 days before the renewal date.

Under the terms of the Amended and Restated Employment Agreements, Messrs. Halkett and Thomson are prohibited from competing with us or soliciting any of our customers or employees for a period of time following the termination of his employment, the duration of which is based on the circumstances of termination. Additionally, each of the Amended and Restated Employment Agreements provides that upon “retirement” (as such term is defined in the Amended and Restated Employment Agreements), all stock awards granted to the applicable executive through the date of retirement shall vest immediately (other than awards granted under the Amended 2016 MIP, which awards will be governed by the Amended 2016 MIP and the applicable award agreements).

On May 10, 2016, we entered into an employment agreement with Mr. Stewart in connection with his appointment as Vice President, General Counsel and Corporate Secretary of the Company, to be effective on June 9, 2016. His employment agreement has an initial term of one year and provides for an annual base salary of $285,000 with an annual target bonus, beginning in fiscal year 2017, of no less than 75% of Mr. Stewart’s annual base salary. The other terms of Mr. Stewart’s employment agreement are substantially the same as those in the Amended and Restated Employment Agreements. As contemplated in his employment agreement, on August 24, 2016, the Compensation Committee approved a grant to Mr. Stewart consisting of 5,151 time-based restricted stock units and 12,018 performance-based restricted stock units to acquire units of our stapled securities under the Amended 2016 MIP. This grant became effective on August 29, 2016. In connection with the conversion of the Company's 1%/12% Step-Up Senior Secured Third Lien Convertible Notes into the Company's ordinary shares on December 4, 2019, each restricted stock unit was converted into approximately 2.868 Company common shares.

On August 9, 2016, we entered into an employment agreement with Mr. Ihab Toma in connection with his appointment as Chief Executive Officer of the Company (the “Employment Agreement”), which became effective as of August 29, 2016 (the “Employment Effective Date”). The initial term of the Employment Agreement was two years from the Employment Effective Date, subject to automatic one-year renewals thereafter. The initial two-year term, and any subsequent annual renewal terms, may end earlier in accordance with the terms of the Employment Agreement.

Pursuant to the Employment Agreement, Mr. Toma receives an annual base salary of $500,000, and has the opportunity to earn an annual bonus based on his and/or our achievement of certain performance criteria established by the Compensation Committee. For each fiscal year beginning with our 2017 fiscal year, Mr. Toma’s target annual bonus opportunity will be equal to

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100% of his annual base salary (the “Target Annual Bonus”), subject to a maximum annual bonus payout equal to 200% of his base salary. In 2019, Mr. Toma also received a housing allowance of $7,500 per month.

 

In connection with his appointment to the position of Chief Executive Officer, the Board of Directors, upon the Compensation Committee’s recommendation, approved a grant to Mr. Toma under the Amended 2016 MIP consisting of 43,266 performance-based restricted stock units to acquire units of our stapled securities (the “Performance-Based Awards”) that vest based on the Company’s “total enterprise value” (as defined in the applicable award agreement), as measured on the first to occur of either (i) a “qualified liquidity event” (as defined in the applicable award agreement); or (ii) February 10, 2023. Upon certain terminations of employment, a portion of the Performance-Based Awards will remain eligible to vest based on future performance. The Board of Directors also approved a grant under the Amended 2016 MIP consisting of 18,543 time-based restricted stock units to acquire units of our stapled securities (the “Time-Based Awards”) that vest ratably on each of the first four anniversaries of the effective date of the Company’s plan of reorganization, subject to Mr. Toma’s continuous employment with us on each applicable vesting date. Upon a qualified liquidity event, the unvested portion (if any) of the Time-Based Awards will vest. The Performance-Based Awards and Time-Based Awards became effective on the Employment Effective Date.

If we terminate Mr. Toma’s employment without “cause” or if Mr. Toma resigns his employment for “good reason” (as those terms are defined in the Employment Agreement, and in either case, a “Qualifying Termination”), Mr. Toma will be eligible to receive an amount equal to two times the sum of (i) his annual base salary plus (ii) his Target Annual Bonus, payable in equal installments over a two-year period following the termination date. In the event of an “anticipatory termination” within six months prior to a “change of control” (as those terms are defined in the Employment Agreement) or a Qualifying Termination within two years following a change of control, Mr. Toma will be eligible to receive one year of outplacement assistance and an amount equal to three times the sum of (i) his annual base salary plus (ii) his “average bonus amount” (as defined in the Employment Agreement, and which generally means the average of any annual bonuses paid or payable during the three-year period prior to occurrence of the change of control (but no less than his Target Annual Bonus for any such year)). In the event of Mr. Toma’s death or “disability” (as defined in the Employment Agreement), he will be eligible to receive a pro-rated annual bonus, based on the actual achievement of the applicable performance criteria, and pro-rated for the number of days Mr. Toma was employed with the Company during the Company’s applicable fiscal year. In order to receive any of the severance benefits described above, Mr. Toma must execute a valid release of claims in favor of the Company.

Pursuant to the Employment Agreement, Mr. Toma has agreed to indefinite confidentiality and non-disparagement obligations. The Employment Agreement also provides that Mr. Toma will not compete with us or solicit our customers or employees, in any case during his employment with us or for a period of one year thereafter. This period increases to two years in the case of Mr. Toma’s retirement from the Company and, in the case of the non-competition provision, is also extended to coincide with his continued receipt of severance benefits (for a period of up to two years following the termination of his employment with us).

On September 22, 2016, we entered into an employment agreement with Mr. Cimino (the “Cimino Employment Agreement”). The terms of the Cimino Employment Agreement are substantially similar to those of Mr. Toma’s Employment Agreement, except that Mr. Cimino serves as our Chief Financial Officer with an annual base salary of $285,000, and, beginning with the Company’s 2017 fiscal year, will have a target annual bonus opportunity equal to 75% of his annual base salary, and his applicable severance multiple is equal to one-times its applicable severance component. Pursuant to the Cimino Employment Agreement, Mr. Cimino has agreed to indefinite confidentiality and non-disparagement obligations. The Cimino Employment Agreement also provides that Mr. Cimino will not compete with us or solicit our customers or employees, in any case during his employment or for a period of one year thereafter. This period increases to two years in the case of Mr. Cimino’s retirement.

In connection with his appointment as Chief Financial Officer of the Company, the Compensation Committee approved a grant to Mr. Cimino under the Amended 2016 MIP on terms substantially similar to those of Mr. Toma’s Performance-Based Awards and Time-Based Awards, except that Mr. Cimino received 12,018 performance-based restricted stock units and 5,151 time-based restricted stock units.

On March 31, 2020, as part of our efforts to reduce operating and corporate costs in light of the global economic decline and public health crisis resulting from the spread of COVID-19, each named executive officer entered into an amendment and waiver to their employment agreement, agreeing to a 20% reduction in salary effective April 1, 2020 until June 30, 2020 and waiving any claim the executive may have to claim “good reason” in connection therewith.  The reduction in base salary had no effect on the other terms of the Employment Agreements.

In connection with the conversion of the Company's 1%/12% Step-Up Senior Secured Third Lien Convertible Notes into the Company’s ordinary shares on December 4, 2019, each restricted stock unit was converted into the right to receive approximately 2.868 Company common shares.

 

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Grants of Plan Based Awards Table

The following table provides information with respect to incentive plan-based awards made during fiscal year 2019 to the named executive officers.

 

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Outstanding Equity Awards at Year End

The following table provides information with respect to the status as of December 31, 2019 of all unvested restricted stock unit awards held by each of the named executive officers.

 

Fiscal Year 2019 Stock Vested

The following table contains information about restricted stock units that vested during fiscal year 2019.

 

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Potential Payments Upon Termination or Change of Control

Assuming the employment of any of our named executive officers was to be terminated without cause, for good reason, or constructively terminated without cause, or in the event of a change of control, each as of December 31, 2019, the named executive officer would be entitled to payments in the amounts set forth below:

Termination Without Cause, For Good Reason, or Constructive Termination

 

 

Pursuant to the Amended and Restated Employment Agreements, and pursuant to Mr. Stewart’s employment agreement, upon a termination without “cause” or by the executive for “good reason”, the named executive officers are eligible to receive severance payments based on a multiple of the applicable executive officer’s base salary and target annual bonus for the year of

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termination. Cash payments are payable in accordance with the Company’s regular payroll cycle over the applicable severance period, except in the case of a termination in connection with a change of control, in which case the payments are made in a lump sum within sixty days of the termination event. We are not obligated to make any cash payments to these executives if their employment is terminated by us for cause or by the executive without good reason. In the event of an executive’s death, we will pay the executive’s estate an amount equal to his annual base salary, bonus and the value of any equity awards. In the event of an executive’s disability, his employment will continue for one year from the date of disability. In addition, assuming the employment of any of our named executive officers was to be terminated “without cause”, for “good reason”, or “constructive[ly] terminated without cause”, or in the event of a “change of control” (as each such term is defined in the employment agreements), they would be entitled to accelerated vesting of all options and share awards (other than awards, if any, granted under the Amended 2016 MIP, which awards will be governed by the Amended 2016 MIP).

During the executive’s employment and for a period of (a) one year following a termination (or, with respect to the non-competition restriction, a period of time not to exceed two years following a termination during which the executive receives any payment of base salary from the Company) without cause, for good reason, constructive termination without cause or a termination in connection with a change of control or (b) two years following a termination due to retirement, the executive cannot work anywhere in the specified geographic region, and directly or indirectly:

(i) perform services for, have any ownership interest in, or participate in any business that engages or participates in a competing business purpose;

(ii) induce or attempt to induce any customer or client or prospective customer or client whom the executive dealt with or solicited while employed by us during the last twelve months of his employment; or

(iii) solicit, attempt to hire, or have any person employed by us work for the executive or for another entity, firm, corporation or individual.

If we terminate Mr. Toma’s employment without “cause” or if Mr. Toma resigns his employment for “good reason” (as those terms are defined in his employment agreement, and in either case, a “Qualifying Termination”), Mr. Toma will be eligible to receive an amount equal to two times the sum of (i) his annual base salary plus (ii) his target annual bonus, payable in equal installments over a two-year period following the termination date. In the event of an “anticipatory termination” within six months prior to a “change of control” (as those terms are defined in the employment agreement) or a Qualifying Termination within two years following a change of control, Mr. Toma will be eligible to receive one year of outplacement assistance and an amount equal to three times the sum of (i) his annual base salary plus (ii) his “average bonus amount” (as defined in the employment agreement, and which generally means the average of any annual bonuses paid or payable during the three-year period prior to occurrence of the change of control (but no less than his target annual bonus for any such year)). In the event of Mr. Toma’s death or “disability” (as defined in the employment agreement), he will be eligible to receive a pro-rated annual bonus, based on the actual achievement of the applicable performance criteria, and pro-rated for the number of days Mr. Toma was employed with the Company during the Company’s applicable fiscal year. In order to receive any of the severance benefits described above, Mr. Toma must execute a valid release of claims in favor of the Company. The employment agreement provides that Mr. Toma will not compete with us or solicit our customers or employees, in any case during his employment with us or for a period of one year thereafter. This period increases to two years in the case of Mr. Toma’s retirement from the Company and, in the case of the non-competition provision, is also extended to coincide with his continued receipt of severance benefits (for a period of up to two years following the termination of his employment with us).

 

Mr. Cimino’s employment agreement provides for severance benefits that are substantially similar to those that Mr. Toma would receive, except that for Mr. Cimino his applicable severance multiple is equal to one-times its applicable severance component. Mr. Cimino’s provides that he will not compete with us or solicit our customers or employees, in any case during his employment or for a period of one year thereafter. This period increases to two years in the case of Mr. Cimino’s retirement.

Director Compensation

The Board of Directors has approved compensation for independent board members consisting of $133,333 of annual cash compensation and $66,667 of annual stock awards in the form of restricted stock units. Additionally, each independent board member receives $2,000 for each board or committee meeting attended in-person and $1,000 for each board or committee meeting attended telephonically. The Chairman of the Board of Directors receives an additional $50,000 of annual cash consideration and the Chairman of the Audit Committee and Chairman of the Compensation Committee each receive an additional $10,000 of annual cash consideration. Cash consideration is paid quarterly in arrears. The board members currently determined to be independent for purposes of receiving compensation during 2019 were Messrs. Bates, Larsen, and Wells.

On March 31, 2020, as part of the Company’s efforts to reduce operating and corporate costs in light of the global economic decline and public health crisis resulting from the spread of COVID-19, each of the independent directors agreed to reduce their annual cash compensation by 20% effective April 1, 2020 until June 30, 2020.  

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All of the directors are reimbursed for reasonable, necessary and documented travel, subsistence, and other related expenses incurred in connection with the performance of their official board duties.

 

Compensation Committee Report

Notwithstanding anything to the contrary set forth in any of our filings under the Securities Act of 1933, as amended (the “Securities Act”), or the Exchange Act, that might incorporate future filings, including this report, in whole or in part, the following Report of the Compensation Committee shall not be deemed to be “Soliciting Material,” is not deemed “filed” with the SEC and shall not be incorporated by reference into any filings under the Securities Act or Exchange Act whether made before or after the date hereof and irrespective of any general incorporation language in such filing except to the extent that we specifically request that the information be treated as soliciting material or specifically incorporates it by reference into a document filed under the Securities Act or the Exchange Act.

The Compensation Committee of the Board of Directors has reviewed and discussed the Compensation Discussion and Analysis required by Item 402(b) of Regulation S-K with management and, based on such review and discussions, the Compensation Committee recommended to the Board of Directors that the Compensation Discussion and Analysis be included in this Amendment to the Form 10K.

 

 

Compensation Committee Interlocks and Insider Participation

None of the current members of our Compensation Committee serves, or has at any time served, as an officer or employee of us or any of our subsidiaries. None of our executive officers has served as a director or member of the Compensation Committee, or other committee serving an equivalent function, of any other entity, one of whose executive officers served as one of our directors or a member of our Compensation Committee. As described under the heading “Certain Relationships and Related Transactions, and Director Independence”, Matthew W. Bonanno is a partner of York Capital Management Global Advisors, LLC, and Mr. McCarty is an employee of Renegade Swish, LLC.

 

CEO Pay Ratio Disclosure

As required by Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, and Item 402(u) of Regulation S-K, we are providing the following information about the relationship of the annual total compensation of our employees to the annual total compensation of our CEO, Mr. Toma.

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We determined that, as of December 31, 2019, our employee population consisted of 414 individuals, not including our CEO. As of such date, approximately 92% of our employee population was located outside of the U.S.

To identify the median employee, we calculated the total cash compensation of each employee for the twelve-month period ended December 31, 2019. Total cash compensation for these purposes included base salary, bonuses and comparable cash elements of compensation in non-U.S. jurisdictions and was calculated using internal payroll records. We did not apply any cost of living adjustments as part of the calculation. We annualized the compensation of all permanent employees who were hired in 2019 but did not work for us or our consolidated subsidiaries for the entire fiscal year, but did not annualize the compensation of any part-time employee. We did not include any independent contractors or leased employees in our determination.

Once we identified the median employee, we calculated all of the elements of such employee’s compensation for the 2019 fiscal year in accordance with the requirements of Item 402(c)(2)(x) of Regulation S-K, resulting in an estimated annual total compensation of $94,353. To calculate the annual total compensation of Mr. Toma, we used the amount reported in the “Total” column of the 2019 Summary Compensation Table included in this Form 10-K/A, which was $2,251,431, resulting in a ratio of the annual total compensation of our CEO to the median of the annual total compensation of our employees of 24 to 1. We believe this pay ratio is a reasonable estimate calculated in a manner consistent with Item 402 of Regulation S-K.

Because the SEC rules for identifying the median of the annual total compensation of our employees and calculating the pay ratio based on that employee’s annual total compensation allow companies to adopt a variety of methodologies, to apply certain exclusions, and to make reasonable estimates and assumptions that reflect their employee populations and compensation practices, the pay ratio reported by other companies may not be comparable to our pay ratio, as other companies have headquarters in different countries, have different employee populations and compensation practices and may utilize different methodologies, exclusions, estimates and assumptions in calculating their pay ratios.

Security Ownership of Directors, Executive Officers and Certain Beneficial Owners

The following table sets forth information regarding the beneficial ownership of our outstanding ordinary shares on April 15, 2020, except as noted below, by (i) each person who is known by us to beneficially own more than 5% of our outstanding voting power, (ii) each director, nominee for director and named executive officer, and (iii) all of our directors and executive officers as a group. To our knowledge, unless it is otherwise stated in the footnotes, each person listed below has sole voting and investment power with respect to his or her shares beneficially owned. For purposes of the tables below, a person or group of persons is deemed to have “beneficial ownership” of any shares that such person has the right to acquire on or within 60 days after April 15, 2019.

 

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Equity Compensation Plan Information as of December 31, 2019

 

Certain Relationships and Related Party Transactions

In the ordinary course of our business, we may enter into transactions with our directors, officers and 5% or greater shareholders.

The Shareholders Agreement

On February 10, 2016, the Company entered into the Shareholders Agreement (the “Shareholders Agreement”) by and between the Company and the Shareholders (as defined therein). The Shareholders Agreement sets forth the size and composition of the Board and places certain limitations on what actions can be taken by the Board without the affirmative vote of the holders of a majority of the outstanding Ordinary Shares not held by Vantage Drilling Company. The Shareholders Agreement provides the parties thereto with certain information and inspection rights. The Shareholders Agreement places certain restrictions on the transferability of the Company’s shares and also provides that the shares are subject to the tag rights, drag rights, preemptive rights and registration rights set forth or referenced therein.

Registration Rights Agreement

On February 10, 2016, in connection with the effectiveness of our Chapter 11 bankruptcy plan, we entered into a registration rights agreement with certain of our holders (the “Registration Rights Agreement”), which provides the holders party thereto certain registration rights. Certain of the holders party to the Registration Rights Agreement are affiliates of Renegade Swish, LLC, which employs a current member of the Board of Directors of the Company, Mr. Scott McCarty. The managing member or senior managing member of certain holders party to the Registration Rights Agreement is York Capital Management Global Advisors, LLC. A partner of York Capital Management Global Advisors, LLC, Matthew W. Bonanno, is currently on the Board of Directors of the Company. In addition, the Anchorage Funds are party to the Registration Rights Agreement. Messrs. Gordon and Aubrey, members of the Company’s board of directors, are managing directors of Anchorage, the investment advisor to the Anchorage Funds.

The Registration Rights Agreement provides for the registration of certain securities of the Company issued to any holder or subsequently acquired in the open market by any holder and requires the Company to file a shelf registration statement on or prior to the ninetieth day following the date on which our Chapter 11 bankruptcy plan becomes effective, and to include such securities each holder party thereto requests inclusion therein, subject to certain exceptions, conditions and limitations. These registration rights include Form S-3 registration rights, demand registration and piggyback registration rights, subject, in each case, to the terms and conditions identified in the Registration Rights Agreement. The Company has agreed to pay all registration expenses under the Registration Rights Agreement and agreed to indemnify the holders party thereto against certain liabilities.

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The Company has been in compliance with the requirements of the Registration Rights Agreement.

 

VDC Registration Rights Agreement

In connection with the effectiveness of our Chapter 11 bankruptcy plan, the Company committed to enter into a registration rights agreement with Vantage Drilling Company providing for the filing by the Company of a registration statement relating to the Company’s ordinary shares issued to Vantage Drilling Company upon emergence from bankruptcy on account of the secured promissory note previously issued to Vantage Drilling Company in the course of the restructuring process (the “VDC Shares”).

On April 26, 2017, we entered into a registration rights agreement with Vantage Drilling Company and the joint official liquidators thereof (the “VDC Registration Rights Agreement”). The VDC Registration Rights Agreement provides for the registration of the VDC Shares and requires the Company to file a shelf registration statement on or prior to the ninetieth day following the date of such agreement. The Company has agreed to pay all registration expenses under the VDC Registration Rights Agreement and agreed to indemnify Vantage Drilling Company against certain liabilities.

The Company has satisfied all of its obligations under the VDC Registration Rights Agreement.  

Weatherford International

Mr. Thomas R. Bates, Jr. is the chairman and a director of the Company and in December 2019, was elected as chairman of Weatherford International, a provider of equipment and services to the Company. The Company has engaged in transactions in the ordinary course of business with Weatherford International totaling $0.4 million in 2019, for the purchase of equipment and services. At December 31, 2019, the Company had a payable to Weatherford of $10,778. These transactions were on an arm’s-length basis and Mr. Bates was not involved or had an interest in such transactions in any way. Our Audit Committee determined that Mr. Bates is independent, applying the standards defined by the NYSE MKT and reviewing in connection with the “Conflict of Interest” principles contained our Code of Conduct.

Our Policies Regarding Review, Approval or Ratification of Related-Party Transactions

The Audit Committee is responsible for approving related party transactions. The Audit Committee operates under a written charter pursuant to which all related party transactions are reviewed for potential conflict of interest situations in accordance with the “Conflict of Interest” principles contained our Code of Conduct, which is available at www.vantagedrilling.com on the “Corporate Governance” page under the link “Vantage Code of Business Conduct and Ethics.” Such transactions must be approved by the Audit Committee prior to consummation.   The Audit Committee charter is available at www.vantagedrilling.com on the “Corporate Governance” page under the link “Audit Committee Charter.” This Internet address is provided for informational purposes only and is not intended to function as a hyperlink. Our website and the information contained in it or connected to it shall not be deemed to be included or incorporated herein.

 

Director Independence

To evaluate the independence of individual directors, the Board of Directors has elected to use the definition of independence as defined by the NYSE MKT. The Board of Directors has determined that the following members are independent: Messrs. Bates, Larsen and Wells. There are no family relationships among any of our directors or executive officers.

Independent Public Accountant Fees

BDO USA, LLP (“BDO”) was engaged as the Company’s independent registered public accounting firm for the years ended December 31, 2018 and 2019. BDO billed the fees set forth below:

 

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Policy on Audit Committee Pre-Approval of Audit and Non-Audit Services of Independent Accountant

The Audit Committee has adopted certain policies and procedures regarding permitted audit and non-audit services and the annual pre-approval of such services. Each year, the Audit Committee will ratify the types of audit and non-audit services of which management may wish to avail itself, subject to pre-approval of specific services. Each year, management and the independent registered public accounting firm will jointly submit a pre-approval request, which will list each known and/or anticipated audit and non-audit service for the upcoming calendar year and which will include associated budgeted fees. The Audit Committee will review the requests and approve a list of annual pre-approved non-audit services. Any additional interim requests for additional non-audit services that were not contained in the annual pre-approval request will be considered during quarterly Audit Committee meetings. All services provided by BDO during the years ended December 31, 2018 and December 31, 2019 were pre-approved by our Audit Committee.

 

PART IV

(a) List of documents filed as part of this report

3. Exhibits. We hereby file as part of this Amendment No. 1 to Annual Report on Form 10-K the Exhibits listed on the attached Exhibit Index.

 

 

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SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

 

 

 

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