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TRANSOCEAN SEDCO FOREX INC.
1.5% CONVERTIBLE DEBENTURES DUE MAY 15, 2021
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UNDERWRITING AGREEMENT
May 8, 2001
Credit Suisse First Boston Corporation (the "Underwriter")
Eleven Madison Avenue, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Transocean Sedco Forex Inc., a Cayman Islands exempted company (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriter an aggregate of $400,000,000 principal amount
of the Company's 1.5% Convertible Debentures Due May 15, 2021, convertible into
ordinary shares, par value $.01 ("Ordinary Shares"), of the Company (the
"Securities").
1. The Company represents and warrants to, and agrees with, the
Underwriter that:
(a) The Securities will be offered and sold under a
registration statement on Form S-3 (File No. 333-58604) filed with the
Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendments thereto, each
in the form heretofore delivered or to be delivered to the Underwriter,
have been declared effective by the Commission in such form; other than
(i) the documents incorporated by reference in the prospectus included
therein (which have heretofore been, or will be, delivered to the
Underwriter), (ii) the exhibits to such registration statement and such
documents and (iii) any prospectuses filed pursuant to Rule 424(b)
under the Securities Act of 1933, as amended (the "Act") (which have
heretofore been, or will be, delivered to the Underwriter), no document
with respect to such registration statement or document incorporated by
reference therein has heretofore been filed or transmitted for filing
with the Commission; and no stop order suspending the effectiveness of
such registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement or filed
with the Commission pursuant to Rule 424(a) under the Act, is
hereinafter called a "Preliminary Prospectus"); the various parts of
such registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
registration statement at the time
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such part of the registration statement became effective but excluding
Form T-1, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Securities, in
the form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this
Underwriting Agreement (the "Agreement"), being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under
the Act, as of the date of such Preliminary Prospectus or the
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Sections 13(a) or 15(d)
of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the Securities in the form in which it is
filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter
expressly for use in the Prospectus as amended or supplemented relating
to the Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and
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warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by the Underwriter expressly for use in the Prospectus
as amended or supplemented relating to the Securities;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented, except for losses or interferences that would not,
individually or in the aggregate, have a material adverse effect on the
general affairs, management, financial position, shareholders' equity
or results of operations of the Company and its subsidiaries considered
as one enterprise (a "Material Adverse Effect"); and, since the
respective dates as of which information is given in the Prospectus,
there has not been any change in the share capital or capital stock
(other than pursuant to any employee benefit plans of the Company) or
increase in long-term debt of the Company or any of its subsidiaries or
any change that would have a Material Adverse Effect, or any
development involving a prospective change that, to the best knowledge
of the Company, would reasonably be expected to have a Material Adverse
Effect, otherwise than as set forth or contemplated in the Prospectus
as amended or supplemented;
(e) The Company has been duly incorporated and is validly
existing as an exempted company in good standing under the laws of the
Cayman Islands, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect;
and each subsidiary of the Company listed on Exhibit A hereto has been
duly organized, is validly existing and in good standing (if
applicable) under the laws of its jurisdiction of organization;
(f) The Ordinary Shares of the Company into which the
Securities are convertible will have been approved for listing on the
New York Stock Exchange, subject to notice of issuance prior to the
Time of Delivery (as defined in Section 4(a));
(g) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable;
(h) The Securities have been duly authorized and, when issued
and delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the indenture, dated April 15, 1997 (the "Original
Indenture"), between Transocean Offshore Inc., the predecessor to the
Company, and Texas Commerce Bank National Association (the predecessor
to The Chase Manhattan Bank), as trustee (the "Trustee"), as amended
and supplemented by the First Supplemental Indenture, Second
Supplemental Indenture and Third Supplemental Indenture, dated April
15, 1997, May 14, 1999 and May 24, 2000, respectively, and as further
amended and supplemented by the
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Fourth Supplemental Indenture to be dated the date of the Time of
Delivery (the "Fourth Supplemental Indenture") relating to the
Securities (the Original Indenture as so amended and supplemented, the
"Indenture"), under which they are to be issued; the Indenture has been
duly authorized, executed and delivered by the Company and the Trustee,
has been duly qualified under the Trust Indenture Act, and at the Time
of Delivery will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, except as the enforceability
thereof may be subject to the effect of any bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to
general principles of equity and public policy (regardless of whether
enforcement is sought in a proceeding at law or in equity) and to the
discretion of the court before which any proceeding may be brought; and
the Securities will conform, and the Indenture conforms, in all
material respects to the descriptions thereof in the Prospectus as
amended or supplemented;
(i) When the Securities are delivered and paid for pursuant to
this Agreement they will be convertible into Ordinary Shares in
accordance with the terms of the Indenture; the Ordinary Shares
initially issuable upon conversion of such Securities have been duly
authorized and reserved for issuance upon such conversion and, when
issued upon such conversion, will be validly issued, fully paid and
nonassessable; the outstanding Ordinary Shares have been duly
authorized and validly issued, are fully paid and nonassessable; and
the shareholders of the Company have no preemptive rights with respect
to the Ordinary Shares.
(j) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture
and this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation
of the provisions of the Memorandum and Articles of Association of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties, except, in each case
other than with respect to such Memorandum and Articles of Association,
for any such conflict, breach, violation or default which would not,
individually or in the aggregate, have a Material Adverse Effect and
would not impair the Company's ability to perform its obligations
hereunder or under the Securities or the Indenture or have any material
adverse effect upon the consummation of the transactions contemplated
hereby and thereby; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or
the consummation by the Company of the transactions contemplated by
this Agreement or the Indenture, except for such consents, approvals,
authorizations, registrations or qualifications as (i) have been, or
will have been prior to the Time of Delivery, obtained under the Act or
the Trust Indenture Act or (ii) may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of
the Securities by the Underwriter;
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(k) Neither the Company nor any of its subsidiaries is in
violation of its Memorandum and Articles of Association or its
Certificate of Incorporation or By-laws, as the case may be, or in
default in the performance or observance of any material obligation,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound,
except for any such violation or default which would not, individually
or in the aggregate, have a Material Adverse Effect;
(l) The statements set forth in the Prospectus under the
captions "Description of the Debentures", "Description of Debt
Securities", "Description of Share Capital" and "Description of
Ordinary Shares", insofar as they purport to constitute a summary of
the terms of the Securities and the Ordinary Shares, and under the
captions "Cayman Islands Tax Consequences", "Certain United States
Federal Income Tax Considerations", "Underwriting" and "Plan of
Distribution", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and
fair in all material respects;
(m) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect; and,
to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(n) The Company is not, and after giving effect to the
offering and sale of the Securities, will not be, an "investment
company", as such term is defined in the United States Investment
Company Act of 1940, as amended (the "Investment Company Act");
(o) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement
of the Company;
(p) Since the end of its latest fiscal year, the Company has
timely filed all documents and amendments to previously filed documents
required to be filed by it pursuant to Section 13(a), 13(c), 14 and
15(d) of the Exchange Act and the rules and regulations of the
Commission thereunder;
(q) To the knowledge of the Company, each of Ernst & Young
LLP, PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, who have
certified certain financial statements of the Company or its
subsidiaries, are independent public accountants as required by the
Act, and the rules and regulations of the Commission thereunder;
(r) Except as disclosed in the Prospectus as amended or
supplemented, under current laws and regulations of the Cayman Islands
and any political subdivision thereof, all interest, principal,
premium, if any, and other payments due or made on the Securities and
dividends and other distributions declared and payable on any Ordinary
Shares issuable upon conversion thereof may be paid by the Company to
the holder thereof in United States dollars that may be converted into
foreign currency and freely transferred out of the Cayman Islands and
all such payments made to holders thereof who are non-residents of the
Cayman Islands will not be subject to income, withholding or other
taxes under laws and regulations of the
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Cayman Islands or any political subdivision or taxing authority thereof
or therein and, except for the stamp duty described in the Prospectus
as amended or supplemented, will otherwise be free and clear of any
other tax, duty, withholding or deduction in the Cayman Islands or any
political subdivision or taxing authority thereof or therein and
without the necessity of obtaining any governmental authorization in
the Cayman Islands or any political subdivision or taxing authority
thereof or therein; and
(s) Prior to the date hereof, neither the Company nor any of
its affiliates has taken any action which is designed to or which has
constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the
Company in connection with the offering of the Securities;
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the Underwriter, and the Underwriter agrees to
purchase from the Company, at a purchase price of 98.5% of the principal amount
thereof plus accrued interest from May 11, 2001 to the Time of Delivery.
3. Upon the authorization by you of the release of the Securities, the
Underwriter proposes to offer the Securities for sale upon the terms and
conditions set forth in the Prospectus as amended or supplemented.
4. (a) The Securities will be represented by one or more definitive
global Securities in book-entry form which will be deposited by or on behalf of
the Company with The Depository Trust Company ("DTC") or its designated
custodian. The Company will deliver the Securities to the Underwriter, against
payment by the Underwriter or on its behalf of the purchase price therefor by
wire transfer of Federal (same-day) funds, to the account specified by the
Company to the Underwriter at least forty-eight hours in advance of the Time of
Delivery, by causing DTC to credit the Securities to the account of the
Underwriter at DTC. The Company will cause the certificates representing the
Securities to be made available to the Underwriter for checking at least
twenty-four hours prior to the Time of Delivery at the office of DTC or its
designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on May 11, 2001 or
such other time and date as the Underwriter and the Company may agree upon in
writing. Such time and date are herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by the
Underwriter pursuant to Section 7(j) hereof, will be delivered at such time and
date at the offices of Xxxxx Xxxxx L.L.P., 910 Louisiana, Xxx Xxxxx Xxxxx,
Xxxxxxx, Xxxxx (the "Closing Location"), and the Securities will be delivered at
the Designated Office, all at the Time of Delivery. A meeting will be held at
the Closing Location at 5:00 p.m., New York City time, on the New York Business
Day immediately preceding the Time of Delivery, at which meeting the final
drafts of the documents to be delivered pursuant to the preceding sentence will
be available for review by the parties hereto. "New York Business Day" shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York are generally authorized or obligated by
law or executive order to close.
5. The Company agrees with the Underwriter:
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(a) To prepare the Prospectus as amended or supplemented in
relation to the Securities in a form approved by the Underwriter and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date
hereof and prior to the Time of Delivery which shall be disapproved by
the Underwriter promptly after reasonable notice thereof; to advise the
Underwriter promptly of any such amendment or supplement after such
Time of Delivery and furnish the Underwriter with copies thereof; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for
so long as the delivery of a prospectus is required in connection with
the offering or sale of the Securities, and during such same period to
advise the Underwriter, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus has been
filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) To promptly from time to time take such action as the
Underwriter may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as
the Underwriter may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Securities; provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) Prior to 3:00 P.M., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriter with copies of the Prospectus as
amended or supplemented in such quantities as the Underwriter may from
time to time reasonably request, and if, at any time prior to the
expiration of nine months after the date of the Prospectus Supplement,
the delivery of a prospectus is required in connection with the
offering or sale of the Securities and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify
the Underwriter and upon its request to file such document and to
prepare and furnish without charge to the Underwriter as many copies as
the Underwriter may from time to time reasonably request of
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an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance (it being
understood that (i) the Company is not required to so notify the
Underwriter, if the Underwriter has previously notified the Company
that it has completed its resale of the Securities purchased by it
hereunder and that (ii) it would not be reasonable for the Underwriter
to request any such copies if the Underwriter has completed its resale
of the Securities purchased by it hereunder), and if at any time on or
after the expiration of nine months after the date of the Prospectus
Supplement, the Underwriter is required to deliver a prospectus in
connection with the offering or sale of any of the Securities, upon the
request but at the expense of the Underwriter, to prepare and furnish
to the Underwriter as many copies as the Underwriter may request of an
amended Prospectus or a supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158); and
(e) To not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional
Ordinary Shares or securities convertible into or exchangeable or
exercisable for any Ordinary Shares (other than the Securities), or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of the
Underwriter for a period beginning at the time of execution of this
Agreement and ending upon the expiration of 90 days after the date of
this Agreement, except for grants of employee or director stock
options, stock appreciation rights or restricted stock grants pursuant
to the terms of a plan in effect on the date of this Agreement,
issuances of Ordinary Shares pursuant to the exercise of such options
or the exercise or conversion of any other options, warrants or
convertible securities outstanding on the date of this Agreement or
pursuant to a Company savings plan. Notwithstanding the preceding
provisions, the Company shall be permitted to take any of the foregoing
actions in connection with any merger or acquisition.
6. The Company covenants and agrees with the Underwriter that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
issue of the Securities and all other expenses in connection with the
preparation, printing and filing of the Registration Statement and the
Prospectus and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriter and dealers; (ii) the cost of
printing or producing this Agreement, the Indenture, any Blue Sky and legal
investment surveys, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery
of the Securities; (iii) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriter in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees incident to, and
the fees and disbursements of counsel for the Underwriter in connection with,
any required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities; (vi) the cost of preparing the
Securities; (vii) the fees and expenses
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of the Trustee and any agent of the Trustee and the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Securities; and
(viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriter will pay all of its own costs and
expenses, including the fees of its counsel, transfer taxes on resale of any of
the Securities by it, and any advertising expenses connected with any offers it
may make.
7. The obligations of the Underwriter hereunder shall be subject, in
its discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the Time of Delivery,
true and correct, the condition that the Company shall have performed in all
material respects all of its obligations hereunder theretofore to be performed,
and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the Securities shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with
to the Underwriter's reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriter, shall
have furnished to you such opinion or opinions, dated the Time of
Delivery, with respect to the matters covered in paragraphs (i), (ii),
(vii), (viii) and the third to last paragraph of subsection (d) below
as well as such other related matters as you may reasonably request,
and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) Walkers, special Cayman Islands counsel to the Company,
shall have furnished to you their written opinion, dated the Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the Cayman Islands, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus as amended or supplemented;
(iii) Each of this Agreement, the Second Supplemental
Indenture, the Third Supplemental Indenture and the Fourth
Supplemental Indenture to the Original Indenture has been duly
authorized by the Company, and assuming its due execution and
delivery by the Company insofar as such matters are governed
by New York law, will be duly executed and delivered by the
Company;
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(iv) The Securities have been duly authorized by the
Company, and assuming their due execution and delivery by the
Company insofar as such matters are governed by New York law,
and further assuming their issuance and authentication in
accordance with the terms of the Indenture, the Securities
will be duly executed and delivered by the Company;
(v) The Ordinary Shares initially issuable upon
conversion of the Securities have been duly authorized and
reserved for issuance by the Company upon such conversion and,
when issued upon such conversion, will be validly issued,
fully paid and nonassessable; the outstanding Ordinary Shares
have been duly authorized and validly issued, are fully paid
and nonassessable; and the shareholders of the Company have no
preemptive rights with respect to the Ordinary Shares;
(vi) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein
contemplated will not result in any violation of the
Memorandum and Articles of Association of the Company or any
statute or any order, rule or regulation of any court or
governmental agency or body in the Cayman Islands having
jurisdiction over the Company or any of its subsidiaries or
any of their properties;
(vii) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body in the Cayman Islands is required
for the issue and sale of the Securities or the consummation
by the Company of the transactions contemplated by this
Agreement or the Indenture; and
(viii) The statements set forth in the Prospectus
under the caption "Description of Share Capital", "Description
of Ordinary Shares" and "Description of Preference Shares",
insofar as they purport to constitute a summary of the terms
of the Ordinary Shares and any preference shares,
respectively, and "Cayman Islands Tax Consequences", insofar
as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair
in all material respects;
(d) Xxxxx Xxxxx L.L.P., United States counsel for the Company,
shall have furnished to you their written opinion, dated the Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) Each of the Original Indenture and the First
Supplemental Indenture thereto has been duly authorized,
executed and delivered by Transocean Offshore Inc., a Delaware
corporation; each of the Second Supplemental Indenture, the
Third Supplemental Indenture and the Fourth Supplemental
Indenture to the Original Indenture, assuming its due
authorization, and further assuming its due execution and
delivery by the Company insofar as such matters are governed
by Cayman Islands law, has been duly executed and delivered by
the Company; and the Indenture, assuming the due
authorization, execution and delivery thereof by the trustee
thereunder, further assuming the due authorization of the
Second Supplemental Indenture, the Third Supplemental
Indenture and the Fourth Supplemental Indenture
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thereto by the Company, and further assuming the due execution
and delivery of the Second Supplemental Indenture, the Third
Supplemental Indenture and the Fourth Supplemental Indenture
thereto by the Company insofar as such matters are governed by
Cayman Islands law, constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability
thereof may be subject to the effect of any bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium
and other laws of general applicability relating to or
affecting creditors' rights and to general principles of
equity and public policy (regardless of whether enforcement is
sought in a proceeding at law or in equity) and to the
discretion of the court before which any proceeding may be
brought;
(ii) The Securities have been duly authenticated and
issued pursuant to the Indenture, and assuming their due
authorization, and further assuming their due execution and
delivery by the Company insofar as such matters are governed
by Cayman Islands law, have been duly executed and delivered
by the Company and constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforceability
thereof may be subject to the effect of any bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium
and other laws of general applicability relating to or
affecting creditors' rights and to general principles of
equity and public policy (regardless of whether enforcement is
sought in a proceeding at law or in equity) and to the
discretion of the court before which any proceeding may be
brought; and the Securities and the Indenture conform in all
material respects to the descriptions thereof in the
Prospectus as amended or supplemented;
(iii) This Agreement, assuming its due authorization,
and further assuming its due execution and delivery by the
Company insofar as such matters are governed by Cayman Islands
law, has been duly executed and delivered by the Company;
(iv) When the Securities are delivered and paid for
pursuant to this Agreement, they will be convertible into
Ordinary Shares in accordance with the terms of the Indenture;
(v) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument that is included as an
exhibit to the Company's Annual Report on Form 10-K for the
year ended December 31, 2000, nor will such actions result in
any violation of any statute, rule or regulation or any order
known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, except for any such
conflict, breach, violation or default which would not,
individually or in the aggregate, have a Material Adverse
Effect and could not reasonably be expected to adversely
affect the Company's ability to perform its obligations
hereunder or under the Securities or the Indenture (it being
understood that for purposes of this opinion, such counsel
shall not
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be required to pass upon compliance with respect to antifraud
or similar provisions of any law, rule or regulation);
(vi) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body which, to the best of such
counsel's knowledge, has jurisdiction over the Company or any
of its subsidiaries or any of their properties is required
under the laws of the State of New York or the State of Texas
for the issue and sale of the Securities or the consummation
by the Company of the transactions contemplated by this
Agreement or the Indenture, except for such consents,
approvals, authorizations, registrations or qualifications as
(i) have been obtained under the Act and the Trust Indenture
Act or (ii) may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Securities by the Underwriter;
(vii) The statements set forth in the Prospectus as
amended or supplemented under the captions "Description of the
Debentures" and "Description of Debt Securities", insofar as
they purport to constitute a summary of the terms of the
Securities, and "Plan of Distribution", "Certain United States
Federal Income Tax Considerations" and "Underwriting", insofar
as they purport to constitute a summary of the provisions of
the laws and documents referred to therein, are accurate in
all material respects;
(viii) The Company is not an "investment company", as
such term is defined in the Investment Company Act; and
(ix) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the Time of
Delivery (other than the financial statements and schedules,
the notes thereto and the auditors' report thereon and other
financial and accounting data included or incorporated by
reference therein, or omitted therefrom, as to which such
counsel need express no opinion), when they became effective
or were filed with the Commission, as the case may be,
appeared on their face to comply as to form in all material
respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the independent public accountants for
the Company and representatives of and counsel for the Underwriter at
which the contents of the Registration Statement and the Prospectus and
related matters were discussed and, although such counsel did not
independently verify such information and is not passing upon and does
not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or
the Prospectus, except for those referred to in the opinion in
subsection (vii) of this Section 7(d), on the basis of the foregoing
(relying as to materiality to a certain extent upon the statements of
the officers and other representatives of the Company), no facts have
come to such counsel's attention that would lead such counsel to
believe that, as of its effective date, the Registration Statement or
any further amendment thereto made by the Company prior to the Time of
Delivery (other than
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the financial statements and schedules, the notes thereto and the
auditors' report thereon and other financial and accounting data
included or incorporated by reference therein, or omitted therefrom, or
the exhibits thereto or the Form T-1, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as of
its date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the Time
of Delivery (other than the financial statements and schedules, the
notes thereto and the auditors' report thereon and other financial and
accounting data included or incorporated by reference therein, or
omitted therefrom, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
In the foregoing, phrases such as "to the best of such
counsel's knowledge", "known to such counsel" and those with equivalent
wording shall refer to the conscious awareness of information by the
lawyers who have prepared the opinion, signed the opinion or been
actively involved in assisting or advising the Company in connection
with the preparation of the Prospectus as amended or supplemented or
related documents.
Such counsel may rely as to matters of Cayman Islands law upon
the opinion of Walkers furnished pursuant to Section 7(c) of this
Agreement. Such counsel may limit the foregoing opinions in all
respects to the laws of the State of Texas and the State of New York
and applicable Federal law, in each case as in effect on the date of
such opinions;
(e) Xxxx X. Xxxxx, Senior Vice President, General Counsel and
Corporate Secretary of the Company, shall have furnished to you his
written opinion, dated the Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) To the best of such counsel's knowledge, neither
the Company nor any of its subsidiaries is in default in the
performance or observance of any material obligation, covenant
or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it is bound or to which any
of its property or assets is subject, except for any such
defaults which would not, individually or in the aggregate,
have a Material Adverse Effect;
(ii) To the best of such counsel's knowledge and
other than as set forth in the Prospectus as amended or
supplemented, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would, individually or
in the aggregate, have a Material Adverse Effect; and, to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(iii) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture and this Agreement
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and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel (after reasonable inquiry) to which the Company or any
of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject, except for any such conflict, breach, violation or
default which would not, individually or in the aggregate,
have a Material Adverse Effect and would not impair the
Company's ability to perform its obligations hereunder or
under the Securities or the Indenture or have any material
adverse effect upon the consummation of the transactions
contemplated hereby and thereby; and
(iv) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and schedules, the notes thereto and the
auditors' report thereon and other financial and accounting
data included or incorporated by reference therein, or omitted
therefrom, as to which such counsel need express no opinion),
when they were filed with the Commission appeared on their
face to comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
of the Commission thereunder.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the independent public accountants for
the Company and representatives of and counsel for the Underwriter at
which the contents of the Registration Statement and the Prospectus and
related matters were discussed and, although such counsel did not
independently verify such information and is not passing upon and does
not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or
the Prospectus, on the basis of the foregoing (relying as to
materiality to a certain extent upon the statements of the officers and
other representatives of the Company), no facts have come to such
counsel's attention that would lead such counsel to believe that, as of
its effective date, the Registration Statement or any further amendment
thereto made by the Company prior to the Time of Delivery (other than
the financial statements and schedules, the notes thereto and the
auditors' report thereon and other financial and accounting data
included or incorporated by reference therein, or omitted therefrom, or
the exhibits thereto or the Form T-1, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as of
its date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the Time
of Delivery (other than the financial statements and
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schedules, the notes thereto and the auditors' report thereon and other
financial and accounting data included or incorporated by reference
therein, or omitted therefrom, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading
or that, as of the Time of Delivery, either the Registration Statement
or the Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Company prior to the Time of Delivery
(other than the financial statements and schedules, the notes thereto
and the auditors' report thereon and other financial and accounting
data included or incorporated by reference therein, or omitted
therefrom, as to which such counsel need express no opinion) contains
an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and such
counsel does not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as amended
or supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which are not
filed or incorporated by reference or described as required;
Such counsel may rely as to matters of Cayman Islands law upon
the opinion of Walkers furnished pursuant to Section 7(b) of this
Agreement. Such counsel may limit the foregoing opinions in all
respects to the laws of the State of Texas and applicable Federal law,
in each case as in effect on the date of such opinions;
(f) On the date of the Prospectus prior to the execution of
this Agreement and also at the Time of Delivery, Ernst & Young LLP,
PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP shall have furnished
to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance agreed by you prior to the execution of
this Agreement;
(g) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements incorporated by reference in the Prospectus as amended prior
to the date hereof any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, that would, individually or in the aggregate, have a
Material Adverse Effect, otherwise than as set forth or contemplated in
the Prospectus as amended prior to the date hereof, and (ii) since the
respective dates as of which information is given in the Prospectus as
amended prior to the date hereof, there shall not have been any change
in the share capital or capital stock (other than pursuant to any
employee benefit plans of the Company) or increase in long-term debt of
the Company or any of its subsidiaries or any change that would have a
Material Adverse Effect, or any development involving a prospective
change that would have a Material Adverse Effect, otherwise than as set
forth or contemplated in the Prospectus as amended prior to the date
hereof, the effect of which, in any such case described in clause (i)
or (ii), is in the reasonable judgment of the Underwriter so material
and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities on the terms and
in the manner contemplated in this Agreement and in the Prospectus as
amended or supplemented relating to the Securities;
(h) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
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(i) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York
State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this clause (iv) in the reasonable judgment of the Underwriter makes
it impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented relating to
the Securities; and
(j) The Company shall have furnished or caused to be furnished
to you at the Time of Delivery a certificate or certificates of
officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (g) of
this Section and as to such other matters as you may reasonably
request.
8. (a) The Company will indemnify and hold you harmless against any
losses, claims, damages or liabilities, joint or several, to which you may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus as amended or
supplemented, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, and will reimburse you
for any legal or other expenses reasonably incurred by you in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement or the Prospectus as amended
or supplemented, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by you expressly
for use therein.
(b) You will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus as amended or supplemented or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement or the Prospectus as
amended or supplemented or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by you expressly
for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
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(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection, except to the extent that the indemnifying
party suffers actual prejudice as a result of such failure. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then, except to
the extent (but only to the extent) that the indemnifying party suffers actual
prejudice as a result of any failure by the indemnified party to notify the
indemnifying party of any action, proceeding or investigation as contemplated by
subsection (c) of this Section 8, each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and you on the other from the offering of the
Securities. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then, except to the
extent (but only to the extent) that the indemnifying party suffers actual
prejudice as a result of any failure by the indemnified party to notify the
indemnifying party of any action, proceeding or investigation as contemplated by
subsection (c) of this Section 8, each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and you on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and you on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
you. The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the
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Company on the one hand or you on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and you agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), you shall not be required to contribute any amount in excess of
the amount by which the total price at which the Securities underwritten by you
and distributed to investors were offered to investors exceeds the amount of any
damages which you have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls you
within the meaning of the Act; and the obligations of you under this Section 8
shall be in addition to any liability which you may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company within the meaning
of the Act.
9. The respective indemnities, agreements, representations, warranties
and other statements of the Company and you, as set forth in this Agreement,
shall remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of you or any
controlling person of you, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and payment for
the Securities.
10. If for any reason, the Securities are not delivered by or on behalf
of the Company as provided herein, the Company will reimburse you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by you in making preparations for
the purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to you except as provided in Sections 6 and 8 hereof.
11. All statements, requests, notices and agreements hereunder shall be
in writing, and if to you shall be delivered or sent by mail to you at Eleven
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Transaction Advisory
Group; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the Prospectus
as amended or supplemented, Attention: Secretary.
12. This Agreement shall be binding upon, and inure solely to the
benefit of, you, the Company and, to the extent provided in Sections 8 and 10
hereof, the officers and directors of the Company and each person who controls
the Company or you, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Securities from
you shall be deemed a successor or assign by reason merely of such purchase.
13. Time shall be of the essence for this Agreement.
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14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
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If the foregoing is in accordance with your understanding, please sign
and return to us counterparts hereof for the Company plus one for each counsel,
and upon the acceptance hereof by you, this letter and such acceptance hereof
shall constitute a binding agreement between you and the Company.
Very truly yours,
Transocean Sedco Forex Inc.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
Accepted as of the date hereof:
Credit Suisse First Boston Corporation
By: /s/ Rome X. Xxxxxx
--------------------------
Name: Rome X. Xxxxxx
Title: Managing Director
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EXHIBIT A
COMPANY NAME JURISDICTION
------------ ------------
Transocean Offshore Deepwater Drilling Inc. Delaware
Transocean Offshore International Ventures Ltd. Cayman Islands
Sedco Forex Holdings Ltd. British Virgin Islands
Sedco Forex International Inc. Panama
Transocean Holdings Inc. Delaware
R&B Falcon Corporation Delaware
R&B Falcon Drilling (International & Deepwater) Inc. Delaware
R&B Falcon Drilling Co. Oklahoma
Cliffs Drilling Company Delaware
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